Prison Legal News:
Volume 15, Number 5
In this issue:
- Prisons Nationwide Fail to Treat HCV Epidemic (p 1)
- BOP Doctor Indicted, Pleads Guilty to Sexual Assault (p 6)
- From the Editor (p 6)
- $50,000 HCV Settlement and New Treatment Protocol Approved in Colorado (p 7)
- Colorado Slammed by West Nile Virus But Ignores Prisoners (p 8)
- Denial of Grievance Forms Excuses Failure to Exhaust (p 9)
- Florida Work Release Prisoners Ripped Off by Private Transport Company (p 10)
- Excessive Heat Still Plagues Baltimore Women Detainees (p 11)
- Another Troubled North Carolina Jail (p 12)
- Third-Party Beneficiaries Can Enforce Terms of Settlement (p 12)
- Virginia Legislature Awards Wrongfully Convicted Man $1.5 Million (p 13)
- $13,500 Damages Paid to Two Illegally Detained Washington DOC Prisoners (p 13)
- Mandamus Available to Review Oregon Disciplinary Orders (p 14)
- PLRA Physical Injury Rule Applied to Non-Prison Case (p 14)
- Missed HIV Medication Did Not Create a Serious Medical Need (p 15)
- Washington Medical Claim Reinstated (p 16)
- California Rules Violation for "Repeated Pattern" Must Involve Same Offense (p 16)
- Private Settlement Agreement Prohibits Award of Attorney Fees and Costs (p 17)
- County Public Defender Liable for Wrongful Conviction (p 18)
- Physical Injury Rule Doesn't Bar Strip Search Suit (p 18)
- Local Rule Cannot Justify Summary Judgment When Factual Dispute Exists (p 19)
- Beating Judgment for Jail Affirmed on Appeal; Costs Issue Remanded (p 20)
- PHS Liable for Denying Insulin to Diabetic New Jersey Jail Prisoner (p 20)
- New Jersey Prisoners May Confront Accusers in Disciplinary Hearings (p 21)
- New Jersey Supreme Court Upholds $1.6 Million Harassment Verdict (p 22)
- Two Level Review Required for Publication Rejection, but Qualified Immunity Granted (p 22)
- BOP Rule Denying Early Release Eligibility Violates APA (p 23)
- Certification for Interlocutory Appeal Order Discussed in California Prison Labor Suit (p 24)
- Discipline Without Notice Violates Due Process; BOP Administrative Exhaustion May Be Excused (p 24)
- No Ex Post Facto Violation in Forcing Washington Prisoner to Take Stress and Anger Classes (p 25)
- New Trial Ordered in Washington Strip Cell Conditions Suit (p 26)
- Pretrial Detainee Has Limited Right to Litigate Civil Matters (p 26)
- Applicability of FTCA to BOP Causes Circuit Split (p 27)
- $15 Million Award for Wrongful Conviction Upheld (p 28)
- Absence of AEDPA in Texas Law Library May Toll Limitations (p 28)
- NYPD Commissioner Charged With Stealing $112,733.98 from Jail Prisoner Fund (p 29)
- Dismissal Sanction for Prisoner's Refusal to Be Deposed Without Court Order Reversed (p 30)
- Kansas Grievance Procedures Inapplicable in Negligence Action (p 30)
- Illinois County Necessary Party in Suit Against Elected Official (p 31)
- Confinement for Willful Failure to Pay LFOs Upheld (p 31)
- No Crueler Tyrannies: Accusation, False Witnesses, and Other Tyrannies of Our Times (p 32)
- Texas Monitors Prisoners for-Signs of Al-Qaeda Recruitment (p 32)
- Virginia Prison Vendors Lose Contracts to Out-of-State Supplier (p 33)
- BOP Medical Detainees Not Subject to PLRA (p 33)
- Jailhouse Snitch Enlisted in War on Terrorism Behind Bars (p 34)
- Innocent Ohio Man Paid $750,000 for 10 Years Imprisonment (p 35)
- Tennessee Officials Pay $450,000 to Settle Lawsuit in Detainee's Murder by Guards (p 35)
- Texas Probation Officer Charged With Having Juvenile Probationer's Baby (p 36)
- $252,000 Awarded in Kansas Prisoner's Suicide (p 36)
- Ohio Native American Prisoner Granted Injunction to Grow Long Hair (p 37)
- Dismissal of Prisoner's Divorce Petition Is Abuse of Discretion (p 37)
- DOJ Investigation: Conditions in Arkansas Prisons Unconstitutional (p 38)
- Washington Prisoners Get Credit for Time Spent at Liberty (p 39)
- Tennessee Supreme Court Holds No Procedural Protection Needed for $5 Fine (p 40)
- California's New Governor Must Reconsider Former Governor's Parole Reversal (p 40)
- Washington Failure to Disclose Prison-Phone-Rate Suit Dismissed, State Supreme Court Grants Review (p 41)
- Indiana Appeals Court Allows Prisoner to Sue to Receive Pornography (p 41)
- News in Brief (p 42)
- Minnesota Pay-To-Stay Programs Don't Deliver (p 44)
by John E. Dannenberg
The JeopardyTM answer is: "The national average treatment rate for HCV-infected prisoners." The winning question is: "What is approximately 1%?"
With HCV [Hepatitis-C] infection rates in state prisons nationwide estimated at between 16 and 41%, state prisoners account for ...
Prisons Nationwide Fail To Treat HCV Epidemic
by Bob Williams
On May 14, 2003, Dr. Carlos Baez, 41, a staff obstetrician-gynecologist in the Federal Bureau of Prisons (BOP), was indicted on three counts of sexual abuse of a ward for having sexual intercourse with three prisoners between November 2002 ...
BOP Doctor Indicted, Pleads Guilty To Sexual Assault
This issue marks the 14th anniversary of Prison Legal News. With this issue we will have published 169 issues. At this point, PLN is the longest, continuously publishing independent publication whose content is mostly written and produced by prisoners and ex-prisoners in American history. When PLN was started in 1990 ...
Approved in Colorado
by Bob Williams
The federal district court in Colorado has approved a settlement awarding $50,000 and treatment for hepatitis-C (HCV) infection to six named plaintiffs. The Colorado Department of Corrections (CDOC) has instituted a new treatment protocol as part of ...
$50,000 HCV Settlement and New Treatment Protocol
Loren Gasiorowski, 41, awoke one morning with a big mosquito bite on his forearm and one on his shoulder. Within days he couldn't leave his cell. After being sick for two weeks he couldn't take it any more. He decided to run the gauntlet required for medical access. Once there, ...
Failure to Exhaust
The U.S. Third Circuit Court of Appeals reversed a Pennsylvania federal district court's dismissal of a state prisoner's civil rights suit for failure to state a claim.
Pennsylvania prisoner Mark Mitchell was incarcerated at the State Correctional Institution at Graterford (SCI-Graterford) when ...
Denial of Grievance Forms Excuses
by Private Transport Company
by David M. Reutter
In response to a new law, effective Oc-tober 1, 2003, that prohibited state prisoners from driving state vehicles, the Florida Department of Corrections (FDOC) hurriedly entered into a no bid contract with Sunshine Transportation to transport ...
Florida Work Release Prisoners Ripped Off
Despite a 2002 federal district court Consent Order finding conditions at the Women's Detention Center of the Baltimore City Detention Center (WDC) unconstitutional due to excessive heat and despite an injunction issued to immediately remedy the problem, WDC women continue to suffer through the excruciating heat and humidity of the ...
On March 23, 2003, shortly after 1 a.m., Army Sgt. William Clark ...
Prisoner suicides, mistaken releases, jailers indicted for selling drugs and dispensing sex, prisoners caught with drugsall occurred at the Cumberland County Detention Center, a $36 million North Carolina jail, in the seven months following its February 2003 opening.
The Tenth Circuit court of appeals has held that a prisoner was entitled to seek enforcement of a two-decade old settlement agreement as a third-party beneficiary and invoke the court's continuing jurisdiction. In 1981, Kenneth Floyd and nine other Colorado state prisoners filed a § 1983 complaint against the Department ...
Marvin Anderson was convicted by a Virginia court in December 1982 of abduction, sodomy, rape and robbery. He was sentenced to 210 years ...
The Virginia legislature has passed a bill awarding nearly $1.5 million to a man who spent 15 years in prison for a crime he did not commit.
The Washington state Division of Risk Management (DRM) paid claims totaling $13,000 to two state prisoners who were illegally arrested and incarcerated by the Washington Department of Corrections. Michael Buffington had been sentenced in King County Superior Court to two months county jail for possession of heroin. The court's order ...
For many years, Oregon prisoners could challenge certain prison disciplinary orders on judicial review in the Oregon Court ...
The Oregon Court of Appeals held that prison disciplinary orders may be challenged in a mandamus action. The court also held that the trial court erred in imposing previously deferred filing fees.
to Non-Prison Case
The Eleventh Circuit Court of Appeals has held that the Prison Litigation Reform Act (PLRA) applies to lawsuits that claim injuries suffered during custodial episodes, even if such custody occurred outside prison walls. Louis Napier was arrested for trespass by two Jacksonville, ...
PLRA Physical Injury Rule Applied
Willie Carpenter was diagnosed with the human immunodeficiency virus (HIV) when he ...
The U.S. Court of Appeals for the Second Circuit affirmed a district court's denial of a motion for new trial by an HIV+ prisoner who complained that there was insufficient evidence to support the jury's verdict against him.
WSP prisoner Garrett Linderman sued WSP officials under 42 U.S.C. § 1983 for deliberate indifference to a serious ...
The U.S. Ninth Circuit Court of Ap-peals reversed part of a grant of summary judgment to Washington State Penitentiary (WSP) officials in an Eighth Amendment challenge of WSP medical policies and practices.
The California Court of Appeal held that the California Department of Corrections' (CDC) regulation elevating a repeat infraction of an "administrative" violation to the level of a "serious" rules violation may only be invoked if the new violation is of ...
California Rules Violation For "Repeated Pattern" Must Involve Same Offense
of Attorney Fees and Costs
by David M. Reutter
In a case of great importance to lawyers litigating prisoner actions where private settlement agreements are a consideration, the Eighth Circuit Court of Appeals has reversed a $379,000 award for attorney fees and costs granted after ...
Private Settlement Agreement Prohibits Award
Roberto Miranda was convicted of a 1981 murder and sentenced to death. He spent 14 years on Nevada's ...
The U.S. Ninth Circuit Court of Ap-peals, sitting en banc, reinstated a former Nevada Death Row prisoner's 42 U.S.C. § 1983 suit against Clark County, Nevada, and the County's Chief Public Defender.
Vacating dismissal by the U.S. District Court, Northern District of Illinois, the U.S. Seventh Circuit Court of Appeals held that a prisoner adequately pleaded an Eighth Amendment violation in a prison strip-search and that 42 U.S.C. § 1997e(e) does not bar suit where the only injuries alleged are psychological.
The Ninth Circuit Court of Appeals held the failure to file an opposing pleading, as required by local rule, in response to a motion for summary judgment is not grounds for entry of final judgment against the non-moving party when genuine disputes of material facts exist; additionally, ...
by David M.Reutter
The U.S. Tenth Circuit Court of Appeals affirmed a district court grant of judgment as a matter of law to a Kansas county in an excessive use of force claim brought against county jailers after a jury ruled against the county. The court, however, remanded the district court order as ...
Daniel Natale was arrested by Gloucester Township ...
The U.S. Third Circuit Court of Appeals reversed the U.S. District Court (New Jersey) on its dismissal of a pretrial detainee's state law medical malpractice claims and summary judgment for jail defendants of the detainee's claims under 42 U.S.C. § 1981 and 1983.
In response to a ruling by the Superior Court of New Jersey, Appellate Division, the New Jersey Department of Corrections has announced that they will afford prisoners the opportunity to question their accusers in person during disciplinary hearings, regardless of whether the accusers are other prisoners or guards.
The Supreme Court of New Jersey up-held one of the largest female-on-male sexual harassment compensatory damage awards and fees, sending the even larger punitive damage award back to the trial court for reconsideration.
Robert L. Lockley, a New Jersey Department of Corrections (DOC) guard filed suit ...
by Matthew T. Clarke
The Ninth Circuit Court of Appeals held the failure to provide a two-level review process when rejecting incoming publications violated procedural due process, but granted prison officials qualified immunity for the violation. Arizona prisoner Lawrence Krug filed a 42 U.S.C. § 1983 action seeking injunctive relief and monetary damages. Krug ...
"18 U.S.C. § 3621(b) directs the Bureau of Prisons (BOP) to provide substance abuse treatment to those prisoners who have a `treatable condition of substance addiction or abuse.' As an ...
A federal court in Oregon held that Bureau of Prisons (BOP) drug treatment rules violate the Administrative Procedures Act (APA).
A California federal district court has declined to certify an order for interlocutory appeal because the factual and legal issues in this case are not complex and will not necessitate protracted and expensive litigation. Richard P. Loritz, II, a prisoner at California's R.J. Donovan Correctional Facility, brought this action challenging ...
BOP Administrative Exhaustion May Be Excused
A federal district court in Oregon held that a federal prisoner's procedural default in failing to exhaust administrative remedies would be waived. The court also held that disciplining a prisoner for violation of a rule he had no ...
Discipline Without Notice Violates Due Process;
to Take Stress and Anger Classes
The Washington state supreme court unanimously held that a prisoner determined by the Washington state Department of Corrections (DOC) to require Stress and Anger Management (SAM) classes can be forced to take such classes or ...
No Ex Post Facto Violation in Forcing Washington Prisoner
The Ninth circuit court of appeals has reversed for a new trial a Washington state prisoner's claim that he was placed in barbaric strip cell conditions for ten days because the district court allowed prejudicial hearsay testimony to be admitted in the jury trial held before judge Franklin Burgess in ...
In April 1995, Christopher Simmons was involved in a two-car accident. Michael Mirante ...
The U.S. Court of Appeals for the Ninth Circuit affirmed a district court's dismissal of a state prisoner's claim that he was denied access to court because he was detained in jail on an unrelated criminal matter.
Causes Circuit Split
by David M. Reutter
Three recent federal circuit court rul-ings exhibit a dispute between the circuits as to whether the Federal Tort Claims Act (FTCA) applies to property claims against the federal Bureau of Prisons (BOP). Each of these cases, filed by ...
Applicability of FTCA to BOP
The U.S. Court of Appeals for the Seventh Circuit affirmed a district court's denial of qualified immunity for two Chicago policemen who had concealed evidence and induced witnesses to testify falsely against a man wrongfully convicted of murder.
James Newsome was convicted of ...
$15 Million Award for Wrongful
The Fifth Circuit court of appeals has held that the absence of a copy of the Anti Terrorism and Effective Death Penalty Act, (AEDPA) in a Texas prison's law library coupled with the prisoner's lack of knowledge of the passage of the AEDPA may excuse the ...
by Matthew T. Clarke
from Jail Prisoner Fund
By Matthew T. Clarke
On July 11, 2003, NYPD Deputy Po-lice Commissioner of Community Affairs Fredrick J. Patrick, 38, was arrested on federal charges that he looted close to $113,000 from the New York City Correctional Foundation, a non-profit corporation, ...
NYPD Commissioner Charged With Stealing $112,733.98
The Tenth Circuit Court of Appeals held that considering a prisoner's refusal to be deposed absent a court order, as a factor to enter a sanction of dismissal is improper. The Court further held the failure to enter ...
Dismissal Sanction for Prisoner's Refusal to be Deposed Without Court Order Reversed
The Kansas Court of Appeals held that a state prisoner was not required to follow prison grievance procedures to exhaust administrative remedies before filing a negligence action. The court also held that the prisoner was not required to: file his claim with the prison and legislature's joint committee on special ...
Against Elected Official
In a case of great importance to those seeking damages in suits on jail conditions in Illinois, the Seventh Circuit Court of Appeals held a county must satisfy any judgment or settlement of a lawsuit against a Sheriff in his official ...
Illinois County Necessary Party in Suit
In 1993, John Woodward pleaded guilty to burglary and auto theft charges, for which he was sentenced to 36 months in prison and to ...
The Washington state court of appeals held that confining a criminal defendant for 60 days for failing to pay his legal financial obligations (LFOS) was proper.
Review by Robert Woodman
"There is no crueler tyranny than that which is perpetrated under the shield of law and in the name of justice." These words, uttered by Charles-Louis de Secondat, Baron de Montesquieu, in 1742, inspire the title and the ...
by Dorothy Rabinowitz. 2003. Free Press, ISBN: 0-7432-2834-0
Fears of possible al-Qaeda recruitment among prisoners in U.S. prisons have led officials to take a fresh look at prisoners with a view to their possible recruitment by al-Qaeda. Texas has taken the process to an extreme, closely monitoring the state's ll4 prisons for signs of ...
by Matthew T. Clarke
Three Virginia retailers who made their money from prisoner earnings now find themselves in financial trouble. In August 2003, when the Virginia Department of Corrections (DOC) relinquished management of prison commissaries to St. Louis-based Keefe Supply Co., three Virginia vendors filed suit against the prisons in Richmond Circuit Court.
The court held that civilly committed detainees are not ...
In a brief per curiam opinion, the court of appeals for the Eighth circuit held that a Federal Medical Center detainee in Missouri was exempt from the administrative exhaustion provisions of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a).
Scott Lee Martin couldn't help himself. After a decade locked up in a half-dozen federal prisons where snitches, rats, informantsor whatever the regional prison slang calls those who tell on othersare detested, spat upon, beaten, even killed for their acts, Martin decided to become the honorable snitch. "Whether his idiosyncratic ...
In 1991, Jimmy "Spunk" Williams, 32, was convicted of raping a 12 year-old girl, and sentenced to life in prison. Williams was appointed attorney Tom Watkins to represent him at a December 2001 parole hearing. Convinced of Williams' innocence, Watkins set up a meeting with the victim's father. Three months ...
in Detainee's Murder by Guards
by David M. Reutter
Wilson County and City of Lebanon, Tennessee, jail officials agreed to pay the widow of Walter Steven Kuntz $450,000 to settle a lawsuit that charged jail guards beat him to death. Following a traffic ...
Tennessee Officials Pay $450,000 to Settle Lawsuit
Juvenile Probationer's Baby
by Gary Hunter
Laura Hernandez, a 32 year old probation officer, was arrested October 30, 2003 when it was discovered that the father of her child was only 16 years old.
The boy had been placed on probation for possession of ...
Texas Probation Officer Charged With Having
The suicide of Scotty Ray Sisk, a prisoner at Kansas' Shawnee County Department of Corrections (KDOC) has resulted in an award of $252,000 to his parents. On July 6, 1999, Sharon Sisk called the prison and told guard Joel Manzanares that she thought her son was suicidal and had written ...
to Grow Long Hair
by David M. Reutter
An Ohio federal district court has granted a prisoner at Ohio's Madison Correctional Institute (MCI) a preliminary injunction that allows him to grow his hair in accordance with his religious beliefs. Prisoner Cornelius Wayne Hoevenaar is ...
Ohio Native American Prisoner Granted Injunction
Is Abuse of Discretion
A Texas state court of appeals has reversed the dismissal for want of prosecution of a Texas prisoner's divorce action. Joe Lee Buster, a Texas state prisoner, filed a suit for divorce. He was unable to locate his wife, so he ...
Dismissal of Prisoner's Divorce Petition
Conditions at the McPherson and Grimes Correctional Units in Newport, Arkansas are unconstitutional, the U.S. Department of Justice concluded after an 18-month investigation. According to the investigation report, dated November 25, 2003, investigators found that prisoners at both units experienced deliberate indifference to their serious medical needs, were not adequately ...
The Washington State Supreme Court has held that prisoners mistakenly released early by the State Department of Corrections (DOC) are entitled to credit against their sentences for the time they spend out of custody. In so ruling, the state supreme court adopted the federal equitable doctrine of "credit for time ...
Needed for $5 Fine
by Matthew T. Clarke
On August 23, 2003, the Supreme Court of Tennessee (SCTN) held that 30-days punitive segregation followed by administrative segregation of unstated duration were not "atypical and significant" events in prison life and being so punished ...
Tennessee Supreme Court Holds No Procedural Protection
The California Court of Appeal found that former Governor Davis's reversal of the grant of parole for a second degree murderer was not wholly supported by "some evidence," and returned the case for a new review by recently-elected Governor Arnold Schwarzenegger.
Ernest Smith, a California state ...
by John E. Dannenberg
Division I of the Washington State Court of Appeals has affirmed a trial court dismissal of an action challenging phone companies' failure to disclose the rates for collect calls made by Washington prisoners. Relief was denied because the plaintiffs did not bring the appropriate agency into the suit and did ...
Jerry Montgomery is a DOC prisoner at the Indiana State Prison (ISP). He sought to receive ...
The Court of Appeals of Indiana, partly reversing the Marion Superior Court, held that an Indiana Department of Corrections (DOC) prisoner can sue the DOC for its refusal to let him receive pornographic material.
Alabama: On February 3, 2004, Phillip Brown, 23, a former state prisoner, boarded a work release bus transporting prisoners to work and abducted prisoner Okoni Lattimore, 28, at gunpoint. Lattimore later turned himself in to prison officials. He suffered a severe beating, including the loss of several teeth. Brown had ...
Forcing prisoners to pay for their own incarceration has become a national trend. In the summer of 2003 the Minnesota legislature followed suit, enacting legislation allowing counties to implement ...
Minnesota counties are finding out that charging prisoners for staying in jail is not the cash cow they had hoped for.