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Prisoner Education Guide

Articles by Mark Wilson

Maine Constitution Mandates “Prisoner Mailbox Rule”

by Mark Wilson

On July 24, 2018, the Maine Supreme Judicial Court held the state’s constitution requires adoption of a modified version of the “prisoner mailbox rule” when filing petitions for judicial review of prison disciplinary orders.

Maine prisoner Charles M. Martin was found guilty of a disciplinary infraction on April 25, 2016. Pursuant to 5 M.R.S. § 11002, he filed a petition for judicial review of that order by submitting it to prison authorities for mailing to the Superior Court on May 18, 2016. However, the court clerk did not receive the petition until May 26 – one day beyond the 30-day filing deadline imposed by § 11002(3).

The state moved to dismiss, arguing that the court lacked jurisdiction over the case because it was filed outside the 30-day deadline. Martin opposed the motion, urging the court to apply the prisoner mailbox rule established in Houston v. Lack, 487 U.S. 266 (1988). Under that rule, Martin’s petition would have been deemed filed when he gave it to prison officials for mailing on May 18, 2016, rather than when it was received by the court clerk. Concluding that § 11002(3) is “jurisdictional and mandatory,” ...

Montana Involuntary Committed Individuals May Be Restrained During Transport

The Montana Supreme Court held that Montana law does not preclude handcuffing involuntarily committed mentally ill people during transport to a state hospital. Accordingly, the district court did not abuse its discretion when it denied an involuntarily committed man’s request to not be handcuffed during transport.

J.J., a 30-year-old bipolar, diabetic Montana man, was seen by a mental health crisis response team eight times in six days in May 2016. He was admitted to a hospital emergency room four times in seven days. He discharged himself from a local support program and didn’t take his medication. J.J. made repeated threats to harm himself and others. On one occasion, he told nearby police to shoot him.

During an emergency room visit, David Powell, LCSW/MHP, performed a mental health evaluation. He found that J.J. was suffering from “Bipolar 1 disorder, severe with psychosis,” noting that he was “obviously very manic,” had “pressured speech,” and had “very erratic changes in topic” when speaking, and was delusional.

At Powell’s request, prosecutors filed a petition to voluntary commit J.J. on May 17, 2016. Powell alleged that J.J. was a danger to himself and others and was ...

Prosecutor Deciding Disparate Sentencing for Drug Convictions

by Mark Wilson

The Massachusetts Supreme Court held that the prosecutor, not the judge, determines the applicable sentence under drug laws that authorize two different sentences for the same conduct.

Massachusetts General Law, chapter 94C, section 32A criminalizes the distribution of controlled substances. Subsections (a) and (c) criminalize first-time distribution of forty class B controlled substances. Subsections (b) and (d) criminalize subsequent distribution of those controlled substances. Subsections (b) and (d) punish possession with intent to distribute a class B substance, but subsection (b) requires a 24 month mandatory minimum sentence while subsection (d) requires a 42 month mandatory minimum sentence.

Moses Ehiabhi was convicted under sections 32A(c) and (d) of a second charge of possession with intent to distribute cocaine. The judge asked the prosecutor why she charged Ehiabhi under section (d), which carries a 42-month mandatory minimum sentence while section (b) carried only a 24 month mandatory minimum sentence, and the elements of both offenses are identical.

The prosecutor explained that she "typically" brings cocaine charges under the enhanced section because cocaine is "considered a more dangerous substance than other" drugs like pills. She also defended her charging decision by arguing that Ehiabhi was on federal supervised ...

$450,000 to Prisoner's Estate for Beating Death

by Mark Wilson

Oregon prison officials have paid $450,000 to settle state and federal claims that systemic gang violence resulted in a prisoner being murdered in his cell. Officials had previously admitted that staff negligence was a “substantial factor” in the murder.

In July 2010, Oregon prisoner Michael Clarence ...

Medicaid for Juvenile Detainees Rejected (Ohio)

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 ...


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