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Articles by Matthew Clarke

Fourth Circuit Reverses Dismissal of FTCA Failure-to-Protect Suit

On December 29, 2015, the Fourth Circuit Court of Appeals reversed the dismissal of a lawsuit alleging federal prison officials had failed to properly search prisoners who were placed in a recreation cage where they assaulted and repeatedly stabbed another prisoner.

Federal prisoner Joshua Rich was incarcerated in the Special Housing Unit at USP-Hazelton when he was beaten and stabbed multiple times by other prisoners in a recreation cage. He suffered severe injuries – including liver and heart lacerations – which required numerous invasive surgeries. A nine-inch metal knife was recovered at the scene.

Prior to that incident, Rich had been repeatedly assaulted at several different prisons by members of the Aryan Brotherhood (AB) because he refused to join or be affiliated with the gang. Rich filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), alleging prison officials were negligent in failing to protect him from the attack. Before Rich could conduct discovery, the district court granted the government’s motion to dismiss on the basis of the FTCA’s discretionary exception. Rich filed an appeal with the assistance of Wheeling, West Virginia attorney Jay Thornton McCamic.

The discretionary function exception to the FTCA protects government ...

Seventh Circuit Tells Wisconsin Probationer with Gender Dysphoria how to Proceed

On December 23, 2015, the Seventh Circuit Court of Appeals dismissed the appeal of a Wisconsin probationer with gender dysphoria who was denied a preliminary injunction to allow her to move from a men’s homeless shelter to her mother’s house and to dress as a woman in public. In doing so, the appellate court provided her with a surprising amount of information on how to proceed in future litigation, possibly indicating a favorable disposition towards the issue of treatment for prisoners with gender dysphoria.

Roy Mitchell was born male but identifies as female, which makes her physically a man and psychologically a woman. She has been homeless or incarcerated most of her adult life.

Mitchell filed a federal civil rights lawsuit, pursuant to 42 U.S.C. § 1983, alleging two Wisconsin Department of Corrections (DOC) administrators, two prison doctors and three Dane County probation officers were deliberately indifferent to her need for psychological and hormonal therapy which had been recommended by a DOC consulting psychologist. She sought a preliminary injunction against her probation officers, who prohibited her from dressing as a woman in public or moving from a men’s shelter to her mother’s home.

The district ...

$28.1 Million Jury Award after Eighth Circuit Allows Conspiracy Claims in Nebraska Wrongful Conviction Suit

On December 31, 2015, the Eighth Circuit Court of Appeals held that six wrongfully convicted former prisoners could sue Gage County, Nebraska for conspiring to manufacture false evidence; further, law enforcement officials involved in the investigation that led to the wrongful convictions were not entitled to qualified immunity. [See: PLN, March 2016, p.16].

Joseph White was convicted in 1989 of raping and murdering Helen Wilson, 68. To convict him, prosecutors used the testimony of his co-defendants, Ada JoAnn Taylor, Thomas W. Winslow, James L. Dean, Kathleen A. Gonzalez and Debra Shelden, all of whom pleaded guilty to related charges. Collectively they were known as the Beatrice Six.

In 2008, DNA evidence exonerated the Beatrice Six, who were pardoned or had their convictions overturned. They filed independent lawsuits against Gage County, then-Sheriff Jerry O. DeWitt and two of his employees under 42 U.S.C. §§ 1983 and 1985. They claimed the defendants led a reckless investigation, manufactured false evidence, conspired to manufacture false evidence and coerced false testimony. Wilson’s murder was eventually linked to Bruce Allen Smith, who died in 1992.

Initially, a consolidated trial in the lawsuits resulted in a hung jury. The defendants then filed motions under ...

Report Finds Charging Criminal Justice Fees Perpetuates Mass Incarceration

The Brennan Center for Justice at New York University’s School of Law released a report in May 2015 titled, “Charging Inmates Perpetuates Mass Incarceration.”

Mass incarceration refers to the fact that the United States, which has around 5% of the world’s population, holds almost 25% of the world’s prisoners – currently about 2.2 million in state and federal prisons and jails. “Since the 1970s, incarceration in the U.S. has risen steeply, dwarfing the incarceration rate of any other nation on Earth,” the Brennan Center stated.

The report also noted that mass incarceration is expensive, as our nation’s corrections system costs an estimated $80 billion per year. Prison is the third-largest spending category in most states, after education and health care; a 2015 report by the American Academy of Arts & Sciences found that 11 states spent more on corrections than higher education in FY 2013. Those states were Michigan, Oregon, Arizona, Vermont, Colorado, Pennsylvania, New Hampshire, Delaware, Rhode Island, Massachusetts and Connecticut.

Reluctant to raise taxes, lawmakers have sought another source of revenue to pay for criminal justice costs, and courts and corrections officials are increasingly charging defendants, prisoners, probationers and parolees for various “services” such ...

California County Settles Class-action Lawsuit Over Jail Medical and Mental Health Care

In November 2015, Riverside County, California agreed to settle a federal class-action civil rights suit brought by current and former county jail prisoners who alleged violations of their constitutional right to adequate medical and mental health care. [See: PLN, Feb. 2016, p.32].

The settlement included comprehensive reform of the process for providing medical and mental health treatment as well as services for disabled prisoners. It also included $1.25 million in attorney fees for Donald Specter and Sara Norman with the Prison Law Office in Berkeley, as well as San Francisco attorneys Shawn Hanson and Danielle Ginty. The attorneys will continue to monitor and enforce the consent decree with the defendants paying $150,000 per year in monitoring costs. Further, court-appointed experts will oversee compliance with a remedial plan.

The remedial plan approved by the federal district court includes the following provisions: 1) all prisoners entering the jail will be given a prompt, confidential medical screening by a registered nurse; 2) health care forms will be made available as will locked boxes to deposit completed forms; 3) the completed forms will be collected and triaged daily by health care personnel with urgent concerns being seen that day and routine ...

Kansas Supreme Court Modifies “Exoneration Rule”

In an opinion handed down on December 31, 2015, the Supreme Court of Kansas modified the requirement that a criminal defendant be exonerated prior to suing the attorney who represented him (the “exoneration rule”). Under the modification, reversal of a conviction or other post-conviction relief may count as a form for exoneration.

George Michael Garcia hired attorney Charles Ball to represent him in a probation revocation hearing during which he stipulated to the violation. The court violated the probation and remanded him to the Kansas Department of Corrections (DOC) to serve his originally imposed prison term. However, the journal entry of sentencing erroneously directed Garcia to serve 12-months post-release supervision following his 9-month prison term. This violated state statute, K.S.A. 22-3716(e), which prohibits post-release supervision following a prison sentence due to the revocation of probation.

The DOC sent the district court a letter informing it of the erroneous post-release supervision requirement, but also stating; that it would abide by the court’s order until it was ordered to do otherwise. The court never corrected the erroneous sentence.

Following his release, Garcia was convicted of another offense. Because it was committed while he was on post-release supervision, the ...

California County Settles Suits over Two Jail Prisoners’ Deaths for $1.6 Million

In mid-2014, Sutter County, California settled lawsuits brought by the families of two county jail prisoners who died. The family of Rodney Bock received $800,000 while the family of Nathan Prasad received $825,000. The jail also initiated some health care reforms.

Bock, 56, suffered from mental illness and was having a psychotic episode when his family took him to the county mental health facility in early April 2010, with an order form Superior Court to admit him to the Napa State Hospital for treatment. Instead, he was incarcerated in the jail for failure to appear. According to court documents, on April 29, 2010, Bock experienced “a violent and psychotic episode, including repeated and forceful banging of his head and body against a hard cell wall, causing substantial bleeding and hemorrhaging, and his hanging himself in the jail.”

The lawsuit alleged jail officials ignored obvious signs of Bock’s deteriorating condition with fatal results. As part of the Bock settlement, the jail hired a new medical director, two nurses with emergency room experience, a public health nurse and a licensed vocational nurse. See: Bock v. County of Sutter, U.S.D.C. (E.D. Cal.), Case No. 2:11-cv-00536-MCE-KJN ...

Another Appeal in New York Post-Release Supervision Case

On October 14, 2015, U.S. District Court Judge Shira Scheindlin held she would retain jurisdiction over a class-action civil rights lawsuit in order to determine the damages to be awarded former prisoners for the imposition or continuation of post-release supervision (PRS) by parole and prison officials after that practice was declared unconstitutional. The practice of imposing PRS on parolees when it was not ordered by a sentencing judge was found to violate the due process clause of the Fourteenth Amendment by the Second Circuit Court of Appeals in June 2006, in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006). [See: PLN, April 2010, p.46].

The Earley court held that, as a consequence of U.S. Supreme Court decisions, only a judge could impose PRS – and the only way to impose it on a prisoner whose original sentence contained no mention of PRS was to have a new punishment trial. In ensuing years there were no new trials on punishment for the purpose of imposing PRS.

Despite the ruling in Earley and the lack of new trials, the New York State Department of Corrections and Community Supervision (DOCCS) continued to impose PRS, and the New York State ...

Former Warden, Sheriff, Justice of the Peace Charged in Texas Corruption Scandal

Elberto Esquiel Bravo, 55, the former warden at the East Hidalgo County Detention Center, was arrested in January 2015 and charged with acting as an accessory after the fact in a conspiracy to bribe Hidalgo County Justice of the Peace Jose Ismael “Melo” Ochoa to reduce the bond of a Mexican drug trafficker.

The detention center, operated by LCS Corrections Services at the time, holds prisoners for the U.S. Marshals as well as overflow prisoners from the Hidalgo County Jail. The facility has been the subject of past complaints over inadequate health care, lack of water and lack of recreation.

In February 2010, agents with the U.S. Drug Enforcement Administration asked the Hidalgo County Sheriff’s Office to conduct a traffic stop on Luis Martinez-Gallegos pursuant to an investigation into a major cocaine smuggling operation. Almost 90 kilos of cocaine were discovered in his car, and Ochoa set his bond at $2.45 million.

According to the criminal complaint filed against Bravo, three people who later cooperated with federal authorities conspired with others, including Bravo, to bribe Ochoa to reduce the bond so Martinez-Gallegos, who was in the U.S. illegally, could post bail and be deported to ...

Corizon, CCA Settle Lawsuit Over Solitary Confinement of Elderly Woman

Corizon Health and for-profit prison firm Corrections Corporation of America (CCA) have settled a lawsuit over the solitary confinement of a then-70-year-old prisoner following an alleged false positive drug test caused by Zantac, a heartburn medication.

Carol Lester, a former New Mexico state prisoner and a grandmother, filed a federal civil rights action after she was placed in solitary confinement for over a month at the New Mexico Woman’s Correctional Facility operated by CCA (now known as CoreCivic). Medical care at the prison was provided by Corizon.

Lester suffered from several serious ailments, including bipolar disorder, thyroid cancer and hypertension. While incarcerated she received several medications, including Zantac. After she lost consciousness in a sally port, prison medical staff told her she might have a life-threatening heart condition; however, she was not taken to a hospital or scheduled to see a cardiologist.

Lester and her family became concerned and began to advocate for better medical treatment for her and other prisoners. Lester also encouraged other prisoners to complain about inadequate health care, which allegedly angered prison officials.

As a result of those advocacy efforts, a delegation of state lawmakers visited the facility and spoke with Lester and other prisoners ...


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