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Articles by Mark Wilson

California High-Risk Sex Offender Parole Not Limited to Current Offense

by Mark Wilson

The California Court of Appeals held that a lower court erred in holding that failing to register as a sex offender does not authorize parole supervision as a high-risk sex offender.

In 1989, Charles Andre Toussain was convicted of assault with intent to rape and sentenced to six years in prison. In April 2013, Toussain was convicted of failing to register as a sex offender.

On March 13, 2014, the California Department of Corrections and Rehabilitation (CDCR) released Toussain on parole on the condition that he submit to electronic monitoring via Global Positioning System (GPS) technology.

Ten days after he was released, Toussain's parole agent was notified by the GPS tracking company that Toussain's GPS unit had been tampered with or was malfunctioning.

Toussain, a transient, was found lying on the ground in front of the Santa Ana Public Defender's office. His GPS device was on the ground next to him.

Toussain claimed the GPS unit came off his leg when he fell down, but he admitted that he did not attempt to contact his parole agent.

In April 2014, Toussain's parole agent filed a parole revocation petition in superior court, alleging that ...

$200 Damages in Kansas Postcard-Only Policy

by Mark Wilson

The United States Court of Appeals for the Tenth Circuit affirmed a lower court's judgment that a Kansas jail's postcard-only policy violated the First Amendment.

Nicholas Cox was detained in the Johnson County Adult Detention Center awaiting trial on Kansas domestic violence criminal charges.

The ...

Ninth Circuit: Sheriff's Pervasive, Unwanted Hugs May Create Hostile Work Environment

by Mark Wilson

The United States Court of Appeals for the Ninth Circuit reversed the dismissal of a jail guard’s hostile work environment claim against a sheriff, holding that unwelcome and pervasive hugging can create a hostile or abusive work environment.

Victoria Zetwick began working as a California jail guard for the Yolo County Sheriff’s Department in 1988. She was promoted to sergeant in 2002.
Edward G. Prieto was elected as Yolo County Sheriff in 1999. After his election, Prieto hugged all the female guards when he introduced himself to the jail staff. He shook hands with the male guards. Between 1999 and 2012, Prieto subjected Zetwick to numerous unwelcome hugs. Zetwick claims that Prieto hugged her at least two dozen times between 1999 and 2002, and at least 100 times between 2003 and 2011.

In May 2003, Prieto kissed Zetwick on the lips, supposedly to congratulate her on her recent marriage to a sheriff’s deputy. She expressed shock to her husband, co-workers and supervising lieutenants, but not to Prieto. Her supervisors did not refer her complaints for investigation. Instead, Zetwick’s co-workers and supervising lieutenants teased her that Prieto was going to kiss her on the lips following the incident ...

Denial of Illinois Medical Grievance is Personal Involvement

An Illinois federal court dismissed medical care claims against a prison warden, but refused to dismiss claims against non-medical staff who denied a prisoner’s grievance. Illinois prisoner Tony Foster was diagnosed with a cataract in his left eye. Dr. Norman Patterson prescribed eyeglasses because Foster said he was losing vision in the eye. Patterson refused, however, to refer Foster to an ophthalmologist. Foster later developed a cataract in his right eye, and glasses did not improve his condition.
Foster wrote to the medical director, Dr. Parthasarathi Ghosh, requesting to be seen by an ophthalmologist. He also submitted an emergency grievance which was not answered. Foster then sent a second grievance, which was denied by Sarah Johnson, a member of the Administrative Review Board. Foster subsequently sent seven requests to Patterson and three to Ghosh, seeking treatment for his cataracts.

Foster brought federal suit, alleging that defendants were deliberately indifferent to his serious medical condition by denying him access to an ophthalmologist to correct his cataracts. He later filed an amended complaint, naming warden Michael Lemke and Sarah Johnson as defendants.
Lemke and Johnson moved to dismiss, arguing that the claims against them were time-barred and they lacked personal involvement ...

Male Vermont Prison Employees Paid $10,000; No Gender Discrimination Found

The Vermont Supreme Court held that Vermont prison officials did not violate state law by paying male employees as much as $10,000 more annually than their female counterparts.

Lynne Silloway began working as a business manager for the Vermont Department of Corrections (VDOC) in 2002. She discovered in 2010 that she was earning approximately $10,000 less annually than a male co-worker, identified only as John Doe, who was hired in 2003. Two other female business managers, Mary Bertrand and Lisa DeBlois, subsequently learned that they also were being paid much less than Doe.

In 2006, Doe’s $25.01 hourly wage exceeded Bertrand’s $21 an hour, Silloway’s $20 an hour, and DeBlois’s $18.50 an hour. By fiscal year 2012, Doe’s annual salary was $58,531 while Bertrand, Silloway, and DeBlois made between $6,385 and $10,200 less annually.

The Vermont Human Rights Commission and the three female VDOC employees filed state suit against the VDOC and the Vermont Department of Human Resources. They alleged that VDOC violated the Vermont Fair Employment Practices Act (VFEPA), 21 V.S.A. §§ 495- 496a, by paying male employees in the same position as much as $10,000 more than female ...

Fifth Circuit Remands Jail Suicide Dismissal for Reconsideration

by Mark Wilson

The United States Court of Appeals for the Fifth Circuit reversed the dismissal of a jail suicide suit. The lower court failed to analyze whether factual disputes existed as to whether unconstitutional jail conditions contributed to the detainee’s death.

Texas nurse, mother and wife, Diana LaRoy Simpson, struggled with depression and had attempted suicide. She told her husband that if she attempted suicide again, she would withdraw cash from an ATM, check into a motel and overdose on pills.

Simpson’s husband noticed a cash withdrawal from his bank account on May 18,2015. His wife had worked the nightshift at the hospital the night before, where she often slept after her shift because it was 75 miles from her home.

When Diana did not answer her cellphone, her husband called the hospital to see if she was sleeping there. He was told that she left after her shift. He then called several police agencies to report his wife missing and at suicide risk. He put a photograph of his wife’s vehicle on Facebook, asking anyone who saw it to contact authorities.

A woman who saw the Facebook plea and recognized Simpson’s vehicle parked on a road in ...

Eighth Circuit: Restraint Board Order Entitled to Qualified Immunity

by Mark Wilson

The United States Court of Appeals for the Eighth Circuit reversed a lower court’s denial of qualified immunity to a guard who ordered a prisoner confined to a restraint board for more than three hours.

Minnesota prisoner Ronnie Jackson has a long history of mental health problems, prison rule violations and violent behavior. He has claimed to hear voices that tell him to slit his cellmate’s throat. For several years, he has been confined in an Administrative Control Unit (ACU), where he remains locked in his cell 23-hours a day.

ACU prisoners may request medical attention by sending a “kite.” If their condition is a life-threatening emergency situation, the prisoner may press a duress button in his cell. At about 7:20 a.m., on May 13, 2014, Jackson told a guard he was not feeling well. By noon, he was experiencing severe chest pains, nausea, shortness of breath, and vomiting, which he believed to be side effects of Effexor, which he took for depression.

During the next 90 minutes, Jackson repeatedly sought medical attention. He asked a nurse and a guard for assistance. When they declined, he pushed his emergency duress button three times. After ...

Oregon Habeas Cognizable to Challenge Florida Confinement Under ICC

by Mark Wilson

The Oregon Court of Appeals held that prisoners incarcerated in other states under the Interstate Corrections Compact (ICC) may challenge the conditions of their confinement in Oregon habeas corpus actions against Oregon prison officials.

In 1979, the Oregon legislature enacted the ICC into Oregon law. Under Article IV, § 5, prisoners who are transferred to other states retain all rights that they would have had if incarcerated in Oregon. Under Section 8, the prisoner "also retains rights 'to participate in * * * any action or proceeding in which the inmate could have participated if confined in any appropriate institution of the sending state located within such state.'"

Oregon prisoner Jacob Henry Barrett has been transferred to several different states in recent years. See (PLN Sept 2014, p. 36). Most recently he was incarcerated in Florida under the ICC.

Florida's prison grooming policy prohibits beards and long hair. Oregon does not have a similar grooming policy. Barrett claims that while in Florida, he "has been forcibly shaved once a week or more 'under the threat of adverse administrative action, as well as physical abuse.'"

Barrett filed a petition for a writ of habeas corpus against the director of the ...

Ninth Circuit: Merits Decision Excuses Procedurally Flawed Exhaustion

by Mark Wilson

The United States Court of Appeals for the Ninth Circuit held that a prisoner who fails to comply with prison grievance procedural requirements nevertheless exhausts administrative remedies if prison officials deny the grievances on the merits.

In January 2011, California prison physician Wesley Hashimoto recommended morphine and other pain medication for prisoner David Reyes' degenerative spinal condition. The prescription was initially approved by the prison's pain management committee, which included Drs. Christopher Smith and Scott Heatley.

In May 2011, however, Dr. Hashimoto informed Reyes that Drs. Smith and Heatley had ordered that his medications be gradually reduced and completely discontinued by June 2011.

Reyes filed a prison grievance challenging the "drastic changes" in his medication regimen, which caused him to suffer "unbelievable pain." Reyes requested examination by a physician, asserted that deliberate indifference to medical needs violates the Eighth Amendment, and cited Eighth Amendment cases.

A physician's assistant (PA) interviewed Reyes in response to his grievance. The PA ultimately denied the grievance because "the Pain Management Committee determined narcotics were not medically necessary." The PA found that morphine was not medically indicated.

Lawrence Fong, Chief Executive Officer of Health Care Services, denied Reyes' appeal of ...

Montana Refuses to Pay Judge’s $744,371 Sexual Harassment Settlement

by Mark Wilson

The Montana Supreme Court held that the state was not required to indemnify a judge on sexual harassment claims that he settled with his court reporter.

Charlene Berdahl worked as the primary court reporter for Montana district court judge George W. Huss. In February, 2014, Berdahl filed a sexual harassment complaint against Huss with the Montana Human Rights Bureau (HRB). She alleged that Huss declared his romantic interest, love, and undying devotion to her during work time. He bought her gifts, offered to make her dinner while his wife was out of town and expressed his desire to kiss and hug her. Berdahl also alleged that Huss retaliated against her when she resisted his advances.

On August 26,2014, the State concluded that Judge Huss did not act in the course and scope of his employment. The State refused to defend and indemnify him and stated that “if Judge Huss agrees to a monetary settlement,... it is without the consent of the State and Judge Huss cannot be subsequently indemnified for any such settlement.”

Nevertheless, Berdahl and Huss entered into mediation. On September 30, 2014, Huss confessed to judgment in Berdahl’s favor in the amount of ...


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