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Prisoner Education Guide

Prison Legal News: December, 2004

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Volume 15, Number 12

In this issue:

  1. Business as Usual (p 1)
  2. Death Exposes Inadequate Mental Health Care in Oregon Prisons (p 6)
  3. PAMII Requires Records Release in Connecticut Prisoners' Deaths (p 8)
  4. CMS Must Pay $1.75 Million in Illinois Jail Suicide (p 10)
  5. Exculpatory Evidence Must Be Disclosed at Prison Disciplinary Hearing (p 12)
  6. From the Editor (p 12)
  7. Wisconsin County Settles Negligent Death Claim for $1.2 Million (p 13)
  8. Pro Se Tips and Tactics: The Pro Se Complaint (p 14)
  9. California Prisons' Joint-Venture Program Under Statewide Court Injunction (p 16)
  10. New York Prisoner Informant Awarded $7.65 Million In Failure-To-Protect Suit (p 17)
  11. California Parole Board Must Vacate Parole Denial And Give Lifer New Hearing (p 18)
  12. Private Capitol Punishment: The Florida Model (p 19)
  13. New York City: Thousands Unnecessarily Imprisoned at Enormous cost (p 20)
  14. Judge Barkett Dissents from Expansion of "In Custody" Meaning for PLRA purposes (p 20)
  15. Washington Supreme Court Rejects Federal Mail-Box Rule (p 21)
  16. Washington Prison Labor Program Struck Down (p 22)
  17. Guards Fornicate, Sell Drugs in Pennsylvania Jails (p 23)
  18. Vermont Auditor's Report Blasts CCA and CMS (p 24)
  19. Abuse, Torture and Rape Reported at Unlisted U.S.-Run Prisons in Iraq (p 26)
  20. Iowa Sex Offender Residence Restrictions Unconstitutional (p 28)
  21. Untimely Grievances Satisfy PLRA; $70,000 Beating Verdict Upheld (p 29)
  22. California Lifer Parole Rescission Upheld On One Of Five Grounds Alleged; Federal Ex Post Facto Appeal Is Moot (p 30)
  23. Illinois Appeals Court Reinstates Prisoner's Telephone Disconnect Suit (p 31)
  24. Nevada Prisoner Killed in Rec Yard Riot (p 32)
  25. Wisconsin District Court Reversed; PLRA Fee Limits Constitutional, Says Seventh Circuit (p 32)
  26. "Therapeutic Seclusion" of Civilly Committed Sex Offenders Contrary to Professional Judgment (p 33)
  27. New Jersey Vegetarian Meals Satisfy Halal Dietary Obligations (p 34)
  28. BOP Fires Prison Guard Accused of Rape, Attempted Murder (p 34)
  29. Qualified Immunity Granted for Warrantless Parole Search (p 35)
  30. Hermaphroditic Wyoming Prisoner Awarded $1,000 for 14 Months in Solitary (p 36)
  31. New York Prison Officials Denied Qualified Immunity in Revoking Prisoner's Temporary Release (p 36)
  32. Florida's $4 Administrative Processing Fee for Prisoner Banking Fees Challenged (p 37)
  33. Punitive Transfer After Winning Administrative Appeal Is Actionable (p 38)
  34. International Red Cross Suspects U.S. Hiding Foreign Detainees (p 39)
  35. Arrestee Cannot Be Charged With Bringing Drugs Into Jail (p 39)
  36. News in Brief (p 40)
  37. Seventh Circuit Invalidates Wisconsin News Clippings Ban (p 42)
  38. Prisoner Lawsuits Not Subject to Heightened Pleading Standard in Seventh Circuit (p 42)
  39. Jury's $108,000 Verdict in New York Prisoner's Medical Claim Vacated (p 43)
  40. Oklahoma Family Buries Wrong Man (p 44)

Business as Usual

Wackenhut further angered state officials by saying they must pay for the empty bed space at the Santa Rosa facility caused by transferring prisoners to the Virginia supermax. According to the state's contract, Wackenhut claimed, the state must pay as though the prison is 90 percent full even if it isn't. The company demanded $5,000 a day for the vacant bed space; the state is already paying Virginia approximately $7,000 a day for the 109 prisoners housed at the Wallens Ridge facility.

Corrections Secretary Perry stated he had no intention of paying Wackenhut for the empty beds, citing a letter of agreement signed by Wackenhut president Wayne Calabrese specifying that the 90 percent occupancy requirement did not apply to the Santa Rosa facility. Wackenhut officials countered that the letter was not a "final amendment" to the state's contract.

While the Corrections Department and Dept. of Public Safety are holding a board of inquiry into the Santa Rosa riot and Wackenhut's handling of the disturbance, state lawmakers have also requested an independent investigation coordinated through the Attorney General's office.

On Sept. 10, 1999, Attorney General Patricia Madrid asked the State Board of Finance for ...

Death Exposes Inadequate Mental Health Care in Oregon Prisons

On April 29, 2002, the tormented life of 45-year-old Oregon prisoner William Owens came to a tragic end in the Disciplinary Segregation Unit (DSU) of the Snake River Correctional Institution (SRCI). His death exposed numerous problems with the treatment afforded mentally ill prisoners in Oregon Department of Corrections (ODOC) facilities, according to a September, 2003, investigative report of the Oregon Advocacy Center (OAC), a federally authorized and funded law office established under the Protection and Advocacy for Mentally Ill Individuals Act of 1986 (42 U.S.C. §§ 10801-10851).

Throughout most of his life, Owens was haunted by debilitating mental illness, stemming from severe childhood abuse including such horrors as being tortured with electricity, bullwhipped, hit with a 2 x 4, witnessing a sister's rape and separation from his parents, all before the age of ten. Owens began using methamphetamine, heroin and crack cocaine intravenously and drinking alcohol as a teenager. He dropped out of school in the 10th grade and was later determined to be in the borderline range of intellectual functioning and as having low-average intelligence and possibly brain damage.

In 1987, Owens was charged with the attempted murder of his grandmother and his brother. He had a ...

PAMII Requires Records Release in Connecticut Prisoners' Deaths

A Connecticut federal district court held that the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities (Connecticut P&A), a state agency designated by Connecticut's Governor to provide protection and advocacy services to individuals with disabilities, including persons suffering from mental illness, is entitled to access to deceased prisoners' psychiatric, medical and all other records pertaining to the prisoners' suicide deaths.

Between August 2000 and April 2001, Connecticut P&A became aware of the suicide deaths of five Connecticut Department of Corrections (DOC) prisoners via newspaper accounts of the suicides; another prisoner subsequently died while being transported to a CDOC mental health ward. Connecticut P&A determined it had probable cause to believe each of the prisoners were mentally ill, and they were subject to abuse and neglect.

Connecticut P&A requested the DOC's records on the prisoners. The DOC advised Connecticut P&A they would be contacted at the end of the investigations into the deaths. DOC later refused to provide the records on grounds there was no probable cause of neglect or abuse and the prisoner's next of kin had not authorized release of the records. Connecticut P&A sued for access to the records under the Protection and Advocacy for Mentally Ill Individuals Act, 42 U.S.C. §§ 10801-10827 (PAMII) and § 1983. PAM II allows the P&A to determine when probable cause exists to receive records for persons who are mentally ill, and no other authority may question or re-examine the determination that probable cause exists once made by the P&A.

In order to receive the requested records of each prisoner ...

CMS Must Pay $1.75 Million in Illinois Jail Suicide

CMS Must Pay $1.75 Million In Illinois Jail Suicide


by John E. Dannenberg

Correctional Medical Services (CMS), a private contractor providing all medical and mental health services at the Lake County, Ill. Jail, was ordered by a federal appeals court to pay a federal district court jury award of ...

Exculpatory Evidence Must Be Disclosed at Prison Disciplinary Hearing

Exculpatory Evidence Must be Disclosed at Prison Disciplinary Hearing


by David M. Reutter

The Seventh Circuit Court of Appeals has held that a prisoner is entitled to receive exculpatory evidence in a prison disciplinary hearing when a liberty interest is implicated. This habeas corpus proceeding was brought by Clyde Piggie, a prisoner at Indiana's Maximum Control Facility. After the district court denied the petition, Piggie appealed.

Piggie sought relief from three convictions of insubordination by the prison's disciplinary team. On two consecutive days, Piggie refused to obey an order by defying an order to cuff up and return his food tray. On the second day, Piggie was also charged with battery for pushing a guard during a cell extraction. Piggie was found guilty of all charges. A loss of telephone and recreation privileges for 60 days was imposed on the two refusing to obey charges; the battery conviction resulted in loss of 180 days good time credits and demotion in his good time earning class.

The district court held the loss of privileges did not implicate a liberty interest protected by due process, and Piggie received all process due on the battery charge. On appeal, Piggie challenged only ...

From the Editor

From The Editor


by Paul Wright

As we close the year I would like to remind readers of our matching grant fundraiser where donations will be matched, dollar for dollar from non prisoners, and two dollars for every dollar donated from prisoners. The maximum amount being donated is $25,000.00. As of the first of December, we have raised $5,863.76, for a matching grant total of $8,477.52. The period to raise the full grant amount ends on January 15, 2005. If you have not yet donated, please do so now.

To encourage donations we are offering free books to show our appreciation. The list of titles available is on page 43. The book premiums can be sent to other people as gifts in the event the donor is not interested in the titles being offered. All donations to PLN are tax deductible to those who pay taxes.

Still looking for the perfect holiday gift? Consider a gift subscription to PLN or the books PLN distributes. You can help support PLN and also raise awareness around criminal justice issues at the same time. With our Subscription Madness campaign we pass on the savings of doing mass ...

Wisconsin County Settles Negligent Death Claim for $1.2 Million

Wisconsin County Settles Negligent Death Claim For $1.2 Million


On July 24, 2003, Milwaukee County, Wisconsin, agreed to pay $1.2 million to settle a claim arising from a man's death in the county jail.

The deceased, former president of the University of Wisconsin Board of Regents, Paul ...

Pro Se Tips and Tactics: The Pro Se Complaint

by Daniel Manville

The last column in the September, 2004, issue of PLN discussed "Proceeding In Forma Pauperis."2 That article explains that a prisoner is usually required to pay a partial filing fee before the complaint will be filed by the federal court clerk. The federal court will establish a payment schedule, which prison officials will remove from your prison account, and mail it to court. This issue will discuss what the pro se complaint should contain.


Introduction


When drafting a complaint, remember that judges know what the law is and you should not provide case citations in the complaint. Judges, and their clerks, are interested in hearing facts from you that will support the violations you are claiming.


Requirements of a Complaint


A civil lawsuit starts with a complaint.3 The main object of a complaint is to state a claim against each defendant. This means the complaint should allege facts that, if you can prove them, will establish the defendant violated your legal rights.

A federal court complaint should be separated into numbered paragraphs. Each paragraph should be short and should be limited to "a single set of circumstances" _ usually meaning facts relating to the action ...

California Prisons' Joint-Venture Program Under Statewide Court Injunction

by John E. Dannenberg

On February 17, 2004, the Superior Court of San Diego County entered a two-year injunction against the State of California and its state prison Joint Venture prison-labor contractors, requiring compliance with the California Labor Code as to employer record-keeping and payroll data, as well as to the comparable wage provisions of California Penal Code (PC) § 2717.8. The California Department of Corrections (CDC) was ordered to amend its administrative regulations (California Code of Regulations, Title 15) and operations manual (DOM) to comport with the wage-related provisions of Proposition 139, the voter Initiative Act that authorized the Joint Venture program. Back wages from underpayment were also ordered.

The Joint Venture program authorizing private contractors to set up businesses that employ prisoners on state prison grounds was enacted by California voters in 1990 as a "win-win" concept that would provide contractors with lower operating costs while giving prisoners a chance to gain work ethics, skills and real-world wages during their sentences. Prisoners' wages are to be parceled out in equal portions that offset their incarceration costs and that are paid into victim restitution funds, paid into their prison trust accounts, paid to support their families, and put into ...

New York Prisoner Informant Awarded $7.65 Million In Failure-To-Protect Suit

On May 3, 2004, a federal jury in Manhattan awarded $7.65 million to a New York prisoner who was nearly killed when another prisoner attacked him with a razor.

The plaintiff had alleged in his civil rights lawsuit that prison officials ignored requests to segregate him despite warnings that ...

California Parole Board Must Vacate Parole Denial And Give Lifer New Hearing

by John E. Dannenberg

The California Court of Appeals ordered the Board of Prison Terms (BPT) to vacate its decision denying parole and give a murderer a new parole hearing wherein it shall consider the prisoner's psychological evaluations as favoring parole and shall properly consider all evidence favoring parole suitability, per its regulations.

George Scott was sentenced to 17 years-to-life for the 1987 second degree shooting murder of his wife's lover in front of his wife and son. He was denied parole at his second hearing in September, 2001. Ten months later, his administrative appeal was denied; his habeas corpus petition in the San Mateo County Superior Court was then denied. The Court of Appeal accepted his subsequent petition as an original filing because no evidentiary hearing had been held below. Importantly, the court rejected the BPT's mootness argument [Scott had by then had another unsuccessful parole hearing] because the issue was capable of repetition yet evading review and the controversy was likely to recur.

First, Scott petitioned that California Penal Code (PC) § 3041(a)'s language required the BPT to fix a term proportionate to similar crimes whether or not it found him presently suitable for ...

Private Capitol Punishment: The Florida Model

by Ken Kopczynski, 111 pp. 2004, Authorhouse, softbound

Reviewed by David M. Reutter

As the prison industrial complex has expanded, the privatization of prisons has increased. The pages of PLN have chronicled the mental and physical abuse, as well as medical neglect, suffered by those warehoused in privatized prisons. Private Capitol Punishment: The Florida Model provides a view of the other side of the coin: It details the escapades of officials employed by the State of Florida to oversee and monitor the state's private prisons.

Private Capitol Punishment is the true story of Ken Kopczynski's experiences in exposing the corruption and politics of Florida's private prison industry. While the officials Kopczynski exposed oversaw Florida's private prisons, he uncovered that they were players profiting from the worldwide push to privatize prisons.

The author, Ken Kopczynski, is a Legislative and Political Affairs Assistant for the Florida Police Benevolent Association (FPBA), the union which represents guards working for the Florida Department of Corrections (FDOC). He also is the Executive Director of the Private Corrections Institute (PCI), established to educate the public about the for-profit private prison industry (www.CorrectionsInstitute.org). All profits from Private Capitol Punishment go to PCI ...

New York City: Thousands Unnecessarily Imprisoned at Enormous cost

New York City: Thousands Unnecessarily Imprisoned At Enormous Cost


New York City is spending a fortune to unnecessarily imprison thousands of its citizens for relatively minor offenses. According to the city's Independent Budget Office, in fiscal year 2003 the total yearly cost of imprisonment per prisoner was approximately $92,000. Multiply this by the 13,500 men and women imprisoned at the city's infamous Riker's Island jails and the cost is, roughly, an outrageous $1.24 billion.

This huge outflow of cash is fueled by the city's reliance on imprisonment as policy. For instance, even though the city has seen a reduction in crime in recent years, the proportion of those imprisoned for misdemeanor offenses has jumped from 29% in 1994 to 42% in 2002.

"It really doesn't make sense to spend almost $100,000 a year to keep drug users, petty criminals, [and] people with mental illness jailed," said Nicholas Freudenberg, director of the Program in Urban Public Health at Hunter College. "It's not a good use of public money."

Freudenberg and other experts advocate emptying the city's jails of those imprisoned for relatively minor offensesturnstile jumpers and open container violators, for ...

Judge Barkett Dissents from Expansion of "In Custody" Meaning for PLRA purposes

Judge Barkett Dissents from Expansion of "In Custody" Meaning for PLRA purposes


Judge Barkett has dissented from the denial of en banc review of an Eleventh Circuit Court of Appeals decision that held the Prison Litigation Reform Act (PLRA) applies to lawsuits that claim injuries suffered during custodial episodes, even if such custody occurred outside prison walls.

The underlying action was filed by Louis Napier, who was mistakenly arrested for trespass after two Jacksonville, Florida sheriff deputies mistook him for Jon Napier, Louis' brother. The charge was later nolle prossed, and Louis sued for mistaken arrest and imprisonment. The suit was filed while Napier was confined on an unrelated charge, and dismissed as frivolous.

On appeal, a panel of the Eleventh Circuit he said the suit was barred under the PLRA, holding that when 42 U.S.C. § 1997e(e) states that "[n]o federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury," the word "custody" refers to any instance of "Miranda custody," including prior arrests. See: Napier v. Preslicka, 314 F. 3d 528, 532-34 ...

Washington Supreme Court Rejects Federal Mail-Box Rule

The Washington State Supreme Court has rejected the federal mail-box rule, under which pro se prisoners' pleadings are deemed filed when they are given to prison officials for mailing to the court. This ruling was based on differences between state and federal court rules.

In Washington, collateral attacks on criminal judgments and sentences must be filed within one year of the day the judgment is filed. If a collateral attack is filed late and is not exempt from the one-year rule by statute, it will usually be dismissed as untimely. RCW 10.73.090 and .100.

Monti Carlstad challenged his burglary convictions by way of Personal Restraint Petition (PRP). Brian McClean attempted to withdraw his guilty plea to assault and robbery charges via CrR 7.8 motion in the trial court. Both Carlstad and McClean gave their pleadings to prison officials for mailing before the time limit expired, but the courts did not receive them until after the deadline. Both cases were dismissed as untimely, and both prisoners appealed to the state Supreme Court. They contended that the federal mail-box rule should be applied to revive their collateral attacks, since they had both given their pleadings to prison officials for ...

Washington Prison Labor Program Struck Down

by Roger Smith & Paul Wright

In a rare reversal of its own prior ruling, the Washington state supreme court has ruled that the Washington Department of Corrections (DOC) must stop "letting out" convict labor to private businesses. The court found that practice to violate art. II, sec. 29 of the state constitution.

The suit was filed by free-world water jet workers, who believed the DOC was improperly favoring some businesses over others with cheap, convict labor. Although the Wash. Const. art. II, sec. 29 prohibits "letting out" convict labor to private businesses, the court initially, in a 5-4 ruling, held that the DOC's doing just that under the Free Venture Program (Program) established by RCW 72.09.100(1) was lawful. See: Washington Water Jet Workers Ass'n v. Yarbrough, 148 Wn.2d 403, 61 P.3d 309 (2003). The plaintiffs successfully moved for reconsideration and in another 5-4 ruling, the court now held the program was unconstitutional.

Under the Program the DOC referred prisoners to private business located on the prison grounds. The businesses then hired prisoners to work for them for minimal pay. They then paid the prisoners' earnings to DOC officials, who seized a sizeable portion ...

Guards Fornicate, Sell Drugs in Pennsylvania Jails

Guards Fornicate, Sell Drugs In Pennsylvania Jails


The Allegheny County Jail in Pennsylvania is a den of perversion and sexual predation. To date, eleven guards have been ordered to stand trial on charges they sexually assaulted female prisoners at the jail.

The first 4 guards were arrested on January 16, 2004, for allegedly trading drugs and cigarettes for sex with 9 female prisoners.

The guardsLeShawn Walker, 31, John Pastor, 53, George DiDomenicus, 51, and Joseph Addison, 54were all suspended without pay.

DiDomenicus faces two counts each of institutional sexual assault and criminal attempt for trading cigarettes for oral sex with two prisoners. This allegedly happened 10 times with one of the prisoners.

Addison has been charged with 4 counts of institutional sexual assault and 2 counts of criminal attempt for soliciting views of the breasts and vaginas of 3 prisoners and oral sex from 2 prisoners.

At his preliminary hearing on April 1, 2004, five female prisoners testified that Addison asked them on various occasions over the past two years to raise their tops or lower the bottoms of their jail uniforms in exchange for cigarettes.

Walker faces 4 counts of institutional sexual assault and two counts of criminal attempt ...

Vermont Auditor's Report Blasts CCA and CMS

by David M. Reutter

The Keys to Success report issued by the Vermont State Auditor on May 26, 2004, concludes the Vermont Department of Corrections' (VDOC) "failure to monitor its contracts with private companies and individuals has resulted in significant financial impacts, services that were paid for and not received, and, in some cases, serious reports of poor living conditions, substandard medical and dental care, and inadequate programming" for prisoners.

The October 7, 2003, suicide death of PLN contributing writer James Quigley at Vermont's Northwest State Correctional Facility erupted a firestorm of criticism that has caused a torrent of attention to be beamed on all aspects of VDOC. In March 2004, two New England lawyers, at the State's behest, issued an investigative report into the deaths of seven Vermont prisoners. [PLN, Sep. 2004]. The Auditor's review of VDOC contracts was requested by a number of legislators, prisoners, prisoner rights advocates, and the Vermont State Employees Association.

Since 2000, VDOC has entered into more than 100 contracts at a cost of more than $50 million to provide a wide variety of services to prisoners, from substance abuse counseling and having medical and mental health treatment. This is not ...

Abuse, Torture and Rape Reported at Unlisted U.S.-Run Prisons in Iraq

Abuse, Torture and Rape Reported at Unlisted U.S.-run Prisons in Iraq


by Lisa Ashkenaz Croke

American legal investigators have discovered evidence of abuse, torture and rape throughout the US-run prison system in Iraq. A Michigan legal team meeting with former detainees in Baghdad during an August, 2004, fact-finding mission gathered evidence supporting claims of prisoner abuse at some 25 US-run detention centers, most of them so far not publicly mentioned as being embroiled in the Iraq torture scandal.

"That list was something that we came back with we only knew of three prisons going there," investigator Mohammed Alomari told The NewStandard, referring to the few detention centers in Iraq where concerns over treatment of prisoners have already been raised publicly.

The list includes some actual prisons, such as Al-Salihiya Prison in Baghdad, the notorious prison in Abu Ghraib, and a prison at Camp Bucca, a Coalition-built POW camp in the southern port city of Um-Qasr. Other detention centers have been established at military bases, such as the U.S. Military compound at Al-Dhiloeia, north of Baghdad; a US base outside Fallujah; and the Hilla military compound, a joint US-Polish base where Alomari said he has recently been informed ...

Iowa Sex Offender Residence Restrictions Unconstitutional

by Matthew T. Clarke

A federal court in Iowa has held that the residential restrictions placed upon sex offenders by Iowa Code § 692A.2A are unconstitutional.

John Does I-III, Iowa sex offenders, filed a class-action suit under 42 U.S.C. § 1983 in Iowa federal district court challenging the restrictions of § 692A.2A on numerous constitutional grounds, including the rights to family privacy, freedom to travel, due process and the rights against self-incrimination and cruel and unusual punishment. They also challenged the restrictions as unconstitutional ex post facto laws as applied to class members whose crimes occurred prior to the effective date of § 692A.2A, July 1, 2002.

The restrictions make it a criminal offense for "a person who has committed a criminal offense against a minor, or an aggravated offense, sexually violent offense, or other relevant offense that involved a minor" to reside within 2,000 feet of the property of public or private elementary or secondary schools, or child care center, preschool, or registered child development home (hereafter referred to as "facilities") unless the person established the residence prior to July 1, 2002, the facility was newly located after July 1, 2002, or the person is serving a ...

Untimely Grievances Satisfy PLRA; $70,000 Beating Verdict Upheld

The Sixth Circuit Court of Appeals held that even an untimely grievance satisfied the exhaustion requirement of the Prison Litigation Reform Act (PLRA) so long as the prisoner goes through every step of the grievance process. In doing so, the court upheld a $70,000 damage verdict against an Ohio ...

California Lifer Parole Rescission Upheld On One Of Five Grounds Alleged; Federal Ex Post Facto Appeal Is Moot

by John E. Dannenberg

The California Court of Appeals held that one of the five causes charged by the Board of Prison Terms (parole board) to rescind a life prisoner's unexecuted grant of parole was properly determined by the Board, and thus upheld the rescission. In a subsequent federal habeas action, the Ninth Circuit U.S. Court of Appeals held that the prisoner's Ex Post Facto claim was moot, but permitted amending his petition to include a due process "some evidence" review.

California state prisoner Steven Caswell was convicted in 1976 of four counts of kidnapping for the purpose of robbery, plus assault with a deadly weapon and attempted murder. Caswell was sentenced to "straight life," meaning he would be first eligible for parole in 1983. Denied parole four times, he was finally granted parole in 1986, with his release date set for December, 2006. Following normal progress hearings, his date was advanced for good behavior to September, 2000.

But in 1998, the Board ordered a rescission hearing as they have done for virtually every non-murderer parole date they have granted in the past decade (murderer parole dates are usually reversed by the Governor). At issue was whether ...

Illinois Appeals Court Reinstates Prisoner's Telephone Disconnect Suit

The Illinois Court of Appeals for the Third District reinstated a prisoner's lawsuit against Ameritech over the company's alleged fraudulent intentional early disconnecting of prisoner phone calls.

Johnnie Flournoy, an Illinois state prisoner, filed suit in state court alleging fraud and negligence against Ameritech, the provider of prison phone services for intentionally disconnecting his collect phone calls early so as to force a second call and allow the collection of a second initial calling fee and surcharge. He also alleged that he sent his mother money to pay for the collect calls he made from prison. Ameritech moved for dismissal of the suit, citing the Illinois Public Utilities Act which grants the Illinois Commerce Commission exclusive jurisdiction over complaints concerning excessive rates or overcharges by public utilities companies. 220 ILCS 5/9 252. The circuit court dismissed the suit. Flournoy appealed.

The court of appeals first noted that claims for reparations lie within the exclusive jurisdiction of the Commission. However, if the claim is for civil damages, a circuit court may hear the case. It then held that "the essence of Flournoy's claim is that Ameritech deliberately terminated his collect telephone calls prematurely, forcing him to call ...

Nevada Prisoner Killed in Rec Yard Riot

Nevada Prisoner Killed In Rec Yard Riot


On July 13, 2004, racial tension at the High Desert State Prison in southern Nevada erupted into a deadly riot. The fighting, reportedly between Blacks and Hispanics on the rock-strewn recreation yard, left one prisoner dead and 18 others injured.

The battle began around 2 p.m. after hundreds of medium-security prisoners were released onto the yard for recreation. Dozens of prisoners fought during the 20-minute melee in which at least one prisoner used a rock to crush the skull of another prisoner, 25-year-old Joshua Muniz.

Guards quelled the riot by firing shotgun pellets into the crowd, according to Nevada Department of Corrections (DOC) spokesman Howard Skolnik. Four prisoners were taken to an area hospital, including Muniz and another prisoner who was wounded in the leg by the shotgun blast.

Skolnik would only describe the riot as "racial in nature."

Guards at the prison had long warned that the rockssome of which measured up to 10-inches acrosscould be used as weapons. The guard's union lobbied unsuccessfully for nearly two years to have the rocks removed, prompting them in 2003 to file a grievance over the dangerous "rock problem."

Still, the yard remained ...

Wisconsin District Court Reversed; PLRA Fee Limits Constitutional, Says Seventh Circuit

In a 6-5 decision marked by a plurality opinion and a strongly-worded dissent, the en banc Seventh U.S. Circuit Court of Appeals reversed the U.S. District Court, Western District of Wisconsin, and held that provisions of the Prison Litigation Reform Act (PLRA) limiting recovery of attorney fees in ...

"Therapeutic Seclusion" of Civilly Committed Sex Offenders Contrary to Professional Judgment

"Therapeutic Seclusion" of Civilly Committed Sex Offenders Contrary to Professional Judgment


by David M. Reutter

The Seventh Circuit Court of Appeals has held that civilly committed sex offenders are entitled, as a matter of due process, to the exercise of professional judgment as to the needs of residents, and fact issues exist in this case of whether the use of seclusion could be justified on either security or treatment grounds. This action was filed by an unspecified number of Wisconsin civilly committed sex offenders, who are being held for an indeterminate time beyond their prison sentence. They are nominally considered mental patients. Their claims arise from events while they were held at the Wisconsin Resource Center. In June 2001, the plaintiffs were moved to the Sand Ridge Secure Treatment Center, so this action proceeded for monetary damages only.

Individual treatment plans used at the Resource Center contemplated the possibility that misconduct would lead to what the state calls "therapeutic seclusion": placement in a cell that contains only a concrete platform (which serves as a bed), a toilet, and a sink. Residents in seclusion often were deprived of clothing and other amenities. They were only allowed out of their cell for ...

New Jersey Vegetarian Meals Satisfy Halal Dietary Obligations

by John E. Dannenberg

The Third U.S. Court of Appeals held that legitimate cost and convenience factors supported the New Jersey Department of Corrections' (NJDOC) decision to provide the 280 observant Muslims with only vegetarian Halal (Islamic ritually correct) meals instead of their requested meals made with Halal meat. The court further ruled that providing four Jewish prisoners with Kosher (ritually correct) meals did not violate the Muslims' equal protection rights.

James Williams and other Muslim prisoners sued NJDOC officials under 42 U.S.C. § 1983 to require NJDOC to provide its Muslim population with meals that included Halal meat. They complained that restricting them to a vegetarian Halal diet violated their First Amendment rights to free exercise of religion. They further complained they were being denied equal protection as to Jewish prisoners whom they believed were receiving meat in their specially prepared Kosher meals. The latter issue was easily resolved when the record showed that the Kosher meals being delivered were in fact meatless.

The court analyzed the free exercise claim under the familiar four-part test of Turner v. Safley, 482 U.S. 78 (1987). As to the first part, the court noted that "there must be a ...

BOP Fires Prison Guard Accused of Rape, Attempted Murder

BOP Fires Prison Guard Accused Of Rape, Attempted Murder


A federal prison guard charged with the kidnapping, rape, and attempted murder of an 18-year-old woman has been fired from the Federal Correctional Institution in Sheridan, Oregon.

Robert James Stamper Jr.'s long overdue termination came on July 16, 2004one day after he received a 14-month prison sentence in an unrelated case in which he pleaded guilty to beating and choking his girlfriend.

Apparently a prison sentence is what it takes to get fired from the federal Bureau of Prisons. During the summer of 2004, Stamper, 28, kept his job despite being jailed three times between May and July for violating a restraining order.

While he was out on the domestic abuse charges, prosecutors say Stamper abducted a woman at gunpoint at 3 a.m. on July 12, 2004, from the residential treatment center where she worked. The victim said she did not know Stamper but that he had called her by name.

According to police, Stamper took the woman into the woods, raped her repeatedly, then strangled her into unconsciousness. Believing the woman was dead, Stamper allegedly covered her nude body with brush and fled the scene. The woman regained ...

Qualified Immunity Granted for Warrantless Parole Search

The Second Circuit Court of Appeals held that parole officers' warrantless entry into a homeowner's residence was per se unreasonable and violated the homeowner's Fourth Amendment right to be free from unreasonable searches. The court further held, however, that the officers were entitled, under the "special needs" doctrine and state parole rules to search the home of a parolee without probable cause or a warrant, and, therefore, were entitled to qualified immunity from money damages.

New York State parole officer Angela Vega received information that Rondell Moore, aka Kurt Moore, a parolee who absconded and for whom a parole violation warrant had been issued, was residing at a Brooklyn, New York residence. Vega verified the information with an Agent of the federal Bureau of Alcohol, Tobacco, and Firearms (ATF), who confirmed the information, indicating that he remembered Moore's name.

Based on this information, "at 11:45 p.m. on January 24, [1998], Officers Vega and [Alex] Lavinio, along with five other state parole officers, went to the Brooklyn address" to arrest Rondell Moore. They awakened the residents, ordered them to open the door and said "they were looking for an absconded parolee named Rondell Moore and were ...

Hermaphroditic Wyoming Prisoner Awarded $1,000 for 14 Months in Solitary

Hermaphroditic Wyoming Prisoner Awarded $1,000 For 14 Months In Solitary


In a bench trial, the U.S. District Court for the District of Wyoming has awarded $1,000 to a hermaphroditic Wyoming state prisoner who was made to serve her entire 14-month sentence in solitary confinement.

Miki Ann DiMarco ...

New York Prison Officials Denied Qualified Immunity in Revoking Prisoner's Temporary Release

The U.S. Second Circuit Court of Appeals, reversing the U.S. District Court, Southern District of New York, held that prison officials violated a state prisoner's civil rights by revoking his temporary release program participation without a hearing and were not entitled to qualified immunity on that violation.

Simon Anderson, a prisoner in custody of New York's Department of Correctional Services (DOCS), was a participant in DOCS' Temporary Release/Work Release Program when, in 1996, he was re-incarcerated for alleged cocaine use. DOCS officials held a hearing revoking Anderson's release status without notifying him or permitting him to be present at it. A New York State Supreme Court justice subsequently ordered Anderson's return to the program. Anderson later sued DOCS officials in federal court under 42 U.S.C. § 1983 for violating his civil rights by incarcerating him for fifteen months.

DOCS officials moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). They cited as grounds failure of service of process, failure to exhaust administrative remedies, qualified immunity, and, for Defendant Goord, the DOCS commissioner, failure to allege personal involvement. The district court rejected the process and exhaustion grounds but dismissed Goord ...

Florida's $4 Administrative Processing Fee for Prisoner Banking Fees Challenged

by David M. Reutter

A class action suit filed in Florida's Leon County Circuit Court challenges a new law enacted by the Florida Legislature in its 2004 session. That Legislature amended § 944.516, Florida statutes, to add subpart (1)(h), effective July 1, 2004. The new law allows the Florida Department of Corrections (FDOC) to charge an "administrative processing fee" of up to $6 each month to prisoners for "banking services."

The FDOC decided in July 2004 that it would charge each prisoner $4, to be deducted from each prisoner's account on the last business day of the month. The new law requires FDOC to place a lien on the prisoner's account if no funds are available.

FDOC prisoners are prohibited from possessing cash. To allow prisoners to purchase items at the prison canteen, including writing materials, stamps, radios, food, personal hygiene items, and other items not provided by FDOC, each prisoner has an "inmate account." That account is controlled by the FDOC and is accessible to purchase canteen items by the prisoner using an identification card with a bar code to be scanned by the canteen operator to access the prisoner's account. Prisoners may also ...

Punitive Transfer After Winning Administrative Appeal Is Actionable

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals ruled that the transfer of a California state prisoner to a Security Housing Unit (SHU) punitive segregation facility after his underlying alleged rules violation had been reversed by the granting of an administrative appeal, was a sufficient factual predicate to defeat the prison officials' motion for summary judgment in a 42 U.S.C. § 1983 complaint. The Ninth Circuit thus reversed a district court's earlier ruling that had dismissed the prisoner's complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim.

Charles Jackson had been removed from the general population at the California Correctional Institution at Tehachapi (CCI) on December 16, 1997 and placed in administrative segregation there pending disposition of a rules violation. Jackson had been accused of pushing a doctor's hand away when the doctor attempted to place a stethoscope on Jackson's chest. Jackson was found guilty on January 20, 1998 in a disciplinary hearing. On February 15, 1998, Jackson challenged this finding in an administrative appeal (602). One week later, Classification recommended a one-year SHU term for Jackson at Corcoran State Prison, but he was not ...

International Red Cross Suspects U.S. Hiding Foreign Detainees

The International Red Cross (IRC) said on July 13, 2004, that it suspects the United States is hiding foreign detainees in prisons throughout the world.

According to Antonella Notari, spokeswoman for the International Committee of the Red Cross, terror suspects that the FBI says it has captured have never turned up in detention centers, and the United States has not responded to IRC requests for a list of all detainees.

"These people are, as far as we can tell, detained in locations that are undisclosed not only to us but also to the rest of the world," Notari said.

The United States claims it is cooperating, noting that the IRC has been given access to thousands of detainees in Iraq, Afghanistan, and the U.S. naval base at Guantanamo Bay, Cuba. Pentagon spokesman Bryan Whitman even asserted that "The International Committee of the Red Cross has access to all Defense Department detention operations."

However, U.S. Army Major General Antonio Taguba refutes that assertion. In his report detailing allegations of abuse at the Abu Ghraib prison in Baghdad, Taguba revealed that military police at the prison had "routinely held persons brought to them by other government agencies without accounting for ...

Arrestee Cannot Be Charged With Bringing Drugs Into Jail

The Ohio Second District Court of Appeals has held that an arrestee cannot be charged with knowingly conveying drugs onto the grounds of a detention facility. Stephen Sowry was arrested on charges of disorderly conduct and resisting arrest. A pat-down search revealed no weapons or contraband, and Sowry was transported to the Miami County [Ohio] Jail.

At the jail Sowry was asked if he had any drugs on him. Sowry answered "No." However, a search of his pants during booking uncovered a baggie of marijuana.

Sowry was charged with a violation of Ohio Revised Code (O.R.C.) §2921.36(A)(2), which states "No person shall knowingly convey, or attempt to convey, onto the grounds of a detention facility ... [a]ny drug of abuse as defined in section 3719.011 of the Revised Code." (Section 3719.011 defines marijuana as a "drug of abuse.") At the end of trial, Sowry moved for acquittal on grounds that the evidence was insufficient to sustain a conviction. The trial court denied the motion. Sowry was convicted and sentenced to one year in prison, from which he promptly appealed.

The State of Ohio argued that when Sowry answered "No" to the booking officer ...

News in Brief

News in Brief:


Arizona: In April, 2004, Department of Corrections employee Paul Lamprill was fired after using his state supplied DOC computer to send more than 8,000 e mails to campaign on behalf of former Arizona DOC director Terry Stewart who was running for president of the American Correctional Association, a private lobbying group of prison officials. Lamprill had worked in the DOC's information technology department and also used DOC computers to set up a website for Stewart's efforts. Stewart headed the Arizona prison system from 1995-2000 before leaving in controversy and has since gone on to work for private prison companies and set up the Iraqi and Haitian prison systems.

California: On August 9, 2004, Jacqueline Maristela, 29, a guard at the Elmwood Correctional Center for Women in Milpitas, was arrested on charges she sexually assaulted Linda Thi Vo, 22, a prisoner at the facility. Prosecutors noted that the assault was in fact "consensual" but California, like most states, criminalizes sexual activity between prisoners and employees. Guards Jennifer Daniel, 32, and Muoaz Ismeal, 39, were arrested on charges they knew of the relationship and concealed it. Police found letters and taped phone calls between Maristela and ...

Seventh Circuit Invalidates Wisconsin News Clippings Ban

The Seventh Circuit Court of Appeals held that a prison ban on clippings and photocopies of clippings from newspapers and magazines violates the First Amendment right of prisoners to receive and exchange information. The court also held, however, that the district court's injunction violated the Prison Litigation reform Act (PLRA) because it was too broad.

Nathaniel Lindell, a prisoner at the Wisconsin Secure Program Facility (WSPF), brought suit against prison officials, alleging numerous civil rights violations. The "district court dismissed much of Lindell's complaint after screening it under 28 U.S.C. § 1915A, but granted him leave to proceed in forma pauperis on seven claims." Subsequently, "the court granted summary judgment for the defendants on six of the surviving claims, but it awarded Lindell injunctive relief on the final claim." However, the court found that defendants were entitled to qualified immunity, precluding damages on that claim.

On appeal, the Seventh Circuit noted that the Wisconsin Department of Corrections (DOC) had "implemented a broad `publishers only' rule - a policy of allowing [prisoners] to receive published material only from a publisher or other commercial source." This policy was relied upon to deny Lindell "a clipping of an article from the ...

Prisoner Lawsuits Not Subject to Heightened Pleading Standard in Seventh Circuit

The Seventh Circuit Court of Appeals held that a prisoner's complaint need only state the prisoner's legal claim together with some indication of the time and place: detailed facts need not be supplied.

Brian K. Thomson, an Illinois state prisoner, filed suit pro se under 42 U.S.C. § 1983 alleging that prison officials: (1) confiscated his legal papers, causing him to lose several lawsuits; (2) denied him daily physical exercise; (3) denied him his prescribed diet, causing him to lose 30 pounds; subjected him to second-hand cigarette smoke which he is allergic to; and put him first in solitary confinement, then in a higher-security prison in retaliation for his complaining about these and other prison conditions. The district court dismissed the suit, stating that Thomson failed to allege a serious medical condition that would be aggravated by lack of exercise, departure from the diet, and/or cigarette smoke; didn't sufficiently describe the lawsuit he lost in; and didn't allege a chronology of events that would show retaliation. Thomson appealed.

The Seventh Circuit summed this up as a dismissal for failure to allege sufficient facts. It then noted that the requirement of pleading specific facts (heightened ...

Jury's $108,000 Verdict in New York Prisoner's Medical Claim Vacated

The Second Circuit Court of Appeal has affirmed a district court's order setting aside a jury's verdict of $108,000 in a prisoner's lawsuit alleging deliberate indifference to his serious medical needs. New York prisoner Juan Hernandez sustained multiple gunshot wounds prior to his arrest by New ...

Oklahoma Family Buries Wrong Man

An Oklahoma couple got a real shock upon returning home from a family funeral. They received a call from their son, Kevin Wyckoff, whom they believed they had just buried.

"Hey Dad," Kevin, 23, said in his call from the Lexington Assessment and Reception Center on December 22, 2003. "Huh. Well, damn boy. We just had your funeral today," his father replied, according to a transcript of the call released by the Oklahoma Department of Corrections (DOC).

The man who was buried was believed to be Steven L. Howe, 34, also a prisoner at the Center. Officials planned to exhume the body for identification. Both men had entered the prison on December 5, 2003, and were similar in appearance, according to prison officials.

Kevin is serving a five-year sentence for charges that include kidnapping and contributing to the delinquency of a minor. Howe was serving five years for driving while intoxicated and evading police.

Prison officials were trying to determine how the mix-up occurred, saying that the two may have switched cells without permission. But Kevin said that prison personnel had incorrectly put Howe's name on a cell where he had been moved, and left his name on the ...

 

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