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Prisoner Education Guide

Prison Legal News: December, 2005

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Volume 16, Number 12

In this issue:

  1. Privatized Medical Services in Delaware Kill and Maim (p 1)
  2. Washington State Supreme Court Grants PLN Public Disclosure of Washington DOC Medical Malpractice Re (p 10)
  3. PLN Sues Bureau of Prisons for Lawsuit Information (p 11)
  4. From the Editor (p 12)
  5. Mexican Prisons in Crisis: Cartels Murder Prisoners and Guards (p 13)
  6. Excessive Force Claim Nets $3,200 in Attorney's Fees; $1,000 in Damages (p 15)
  7. Guards Flee Texas Prisons After Overtime Eliminated (p 16)
  8. Los Angeles County Settles Two Jail Medical Malpractice Wrongful Death Suits For $325,000 (p 16)
  9. Supreme Court Justice Clarence Thomas Accepts (p 17)
  10. New York Prisoner Assaulted By Guard Awarded $4,200 (p 18)
  11. 28 Die in Philippines Jail Uprising (p 18)
  12. 28 Die in Philippines Jail Uprising (p 18)
  13. Disclosure of Washington State Prisoner Phone RatesDisclosure of Washington State Prisoner Phone Rates Stymied by the Courts (p 19)
  14. Colorado DOC's Medical Oversight Found Remiss (p 20)
  15. $820,000 Damages Upheld Against NY Jailer Who (p 21)
  16. Virginia Governor Warner Restores Felons' Voting Rights, Ignites Controversy (p 22)
  17. Remedial Plan And $427,158 Attorney Fees In Wyoming Failure to Protect Suit (p 23)
  18. Louisiana's 2002 Exhaustion Requirement (Act 89) Not Retroactive (p 24)
  19. $200,000 Failure-To-Medicate Award Granted to California (p 24)
  20. PLN Sues The Geo Group for Public Records (p 25)
  21. Michigan Jail Settles Unreasonable Use of Force Case for $130,000 (p 26)
  22. Ban on Separatist Religious Publication (p 26)
  23. California Youth Prison Superintendent (p 27)
  24. Florida Awards Contracts Putting Sex Offenders on GPS Supervision; Other States to Follow (p 28)
  25. Controversial Ex-Prison Official Lane McCotter Appointed Utah J.P. (p 29)
  26. Politics Keeps Arizona Clemency Approvals Rare (p 30)
  27. Wrongfully Convicted Kentucky Man Wins $590,000 Judgment Against Defense Attorney (p 31)
  28. 85 Year-Old California Prison Doctor Wins $20 Million For Age Discrimination (p 32)
  29. Fourth Circuit Holds Claims Value Relevant to Frivolous Determination (p 32)
  30. 2006 Certain Days: Freedom for Political Prisoners Calendar (p 33)
  31. Florida Violates Sex Offenders for Possessing Common Men's Magazines (p 33)
  32. Louisiana Prisoners Obscenity Conviction for Masturbation Vacated (p 34)
  33. "Actual Innocence" Rule Inapplicable to Breach of Contract by Lawyer (p 34)
  34. California Tort Claim Dismissed For Failure to Fully (p 35)
  35. Georgia Prison Warden Proper Defendant In § 1983, ADA Suit (p 36)
  36. No Qualified Immunity from 57-Day Illegal Confinement (p 37)
  37. PLRA Exhaustion Requirement Has (p 38)
  38. Court May Infer Deliberate Indifference from Obviousness of Risk (p 38)
  39. Washington S.Ct. Upholds Persistent Prison Misbehavior Statute (p 39)
  40. Seventh Circuit Upholds $56.5 Million Jail Murder Verdict (p 40)
  41. Seventh Circuit Reverses Dismissal of Retaliation Claim (p 40)
  42. Dismissal of §1983 Complaint Against Ohio CCA Prison Reversed (p 41)
  43. News in Brief (p 42)
  44. Former California Warden Allegedly (p 44)

Privatized Medical Services in Delaware Kill and Maim

by David M. Reutter

Anthony Pierce was serving a 14 month sentence for parole violation of a burglary charge at Delaware's Sussex Correctional Institution when he discovered a marble-sized lump growing on the back of his head. A prison doctor employed by the Delaware Department of Corrections' (DDOC) medical contractor, Correctional Medical Services (CMS), said the lump was most likely a cyst or an ingrown hair.

Seven months later, the lump had become ten inches in diameter, or like a second head. The growth caused Pierce to be known by cellmates as the "brother with two heads." In August 2001, CMS' medical director, Dr. Keith Ivens, stabbed the bulging tumor five times with an 18-gauge needle, withdrawing a bloody fluid, which he emptied into a trash can rather than send to a lab for analysis.

"Despite the size and rapid growth of Pierce's lump," CMS medical staff ordered no tests or treatment. They just allowed it to grow unhampered. An autopsy report after the 21-year-old Pierce's death determined his lump was cancerous and he died from a brain tumor due to osteoscarcoma of the skull.

"That boy was growing another head," said Michell Thomas, a former CMS ...

Washington State Supreme Court Grants PLN Public Disclosure of Washington DOC Medical Malpractice Re

Washington State Supreme Court Grants PLN Public Disclosure of Washington DOC Medical Malpractice Records

by John E. Dannenberg

Prison Legal News won a big victory for the cause of investigative journalism on July 14, 2005 when it prevailed in the Washington State Supreme Court to gain access to public records regarding Washington state prisoner deaths and prison medical employee malpractice. The court labeled as undemocratic secrecy in government" defendant Washington Department of Corrections' (DOC) attempt to hide behind a statutory law enforcement" exemption to Washington's Public Disclosure Act (PDA). Specifically, the court held that neither providing patient care to DOC inmates nor disciplining medical employees is law enforcement' within the meaning of the PDA.

Commencing in 2000, PLN's editor Paul Wright, who was concerned about suspicious DOC prisoner deaths and a relationship to medical staff qualifications and disciplinary history, requested that DOC provide PLN with prisoner-patient specific and staff-employee-specific records pursuant to Washington's PDA (Chapter 42.17 RCW). The requests included data on disciplinary actions against medical providers, names of all medical staff employed by DOC, any records of their restricted or suspended licenses, records or prisoner deaths in 1999, records of prisoner deaths where medical negligence ...

PLN Sues Bureau of Prisons for Lawsuit Information

On September 12, 2005, Prison Legal News (PLN) filed suit in federal district court to overturn an agency ruling denying it access to documents held by the Federal Bureau of Prisons (BOP).

The lawsuit, filed in federal district court in Washington, DC, appeals a ruling by the BOP denying PLN a fee waiver under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. PLN requested BOP documents related to money the BOP paid for all lawsuits and claims between January 1, 1996, and July 31, 2003. The BOP demanded almost $7,000.00 to search for the documents, which it claims it does not have in any centralized location. PLN sought a fee waiver under § 552 4(a)(iii). PLN appealed to the Department of Justice which delayed a final ruling on PLN's fee waiver request for almost two years. The DOJ eventually denied PLN's request for a fee waiver, effectively denying PLN access to the information. The BOP first claimed there was no public interest in this type of information. The DOJ later claimed PLN lacked the ability to effectively disseminate the information.
According to Edward Elder, PLN's attorney at the DC law firm ...

From the Editor

By now all PLN subscribers should have received our annual fund raiser letter and our reader survey. As you know, subscription and advertising income only cover a fraction of PLN's operating expenses. We operate a very lean operation where all four full time employees and our part time workers and volunteers put in long hours at very modest salaries to bring you the a wide selection of prison and jail related news and information each month. In addition to publishing the magazine PLN engages in advocacy on behalf of prisoners around the country and we are the only media organization that regularly steps up to the plate when it comes to challenging prison and jail mail regulations on behalf of prisoners and publishers alike. This also includes filing friend of the court briefs in U.S. Supreme Court cases and in the lower courts that involve the rights of prisoners. We do all this without a litigation budget but we require your support above and beyond the cost of your subscription to keep doing it.

As this issue of PLN reports, we are also engaged in public records litigation against the federal government, private prison companies and state prison ...

Mexican Prisons in Crisis: Cartels Murder Prisoners and Guards

by Matthew T. Clarke

One of the achievements of which Mexican President Vicente Fox is most proud is the record-breaking number of drug lords who have been arrested and thrown into federal prison during his tenure. He has a right to be proud of that achievement. However, such success does not come without a price both inside and outside the prison walls.

Turf battles by Mexican drug cartels have led to the murder of three cartel-related prisoners, in addition to violence outside the prisons. This, in turn, resulted in a crackdown on federal prison facilities by Mexican authorities. The cartels' response to the crackdown was to murder six prison employees and dump their bodies near the facility where they worked.

Two of the most infamous incarcerated drug lords are Benjamin Arellano Felix and Osiel Cardenas Guillen, leaders of cartels based out of Tijuana and the Gulf area. While imprisoned in adjacent cells at Mexico's second highest security prison -- federal prison No. 1, known as the La Palma federal penitentiary located 50 miles west of Mexico City in Almoloya de Juarez -- the two agreed to combine forces against another drug lord, Joaquin El Chapo" Guzman, leader of a drug cartel ...

Excessive Force Claim Nets $3,200 in Attorney's Fees; $1,000 in Damages

An Illinois Federal District Court has awarded $3,200 in attorney's fees in a prisoner's claim that his Eighth Amendment rights were violated.
The civil rights action was brought by Illinois prisoner Frank Farella against Logan Correctional Center guards Dennis Hockaday and Ricky Skelton. Farella's suit alleged ...

Guards Flee Texas Prisons After Overtime Eliminated

The virtual elimination of overtime pay for guards--a cost-cutting move by the Texas Department of Criminal Justice (TDCJ)--has contributed to rising turnover rates and probably comprised safety in the state's chronically understaffed prisons.

In March 2003, TDCJ began awarding comp" time for the first 240 hours of overtime worked during a year, rather than traditional overtime pay. (Comp time simply allows guards to take off an amount of time equal to that worked in overtime.) The practice realized huge savings on the surface--TDCJ paid $36.1 million in overtime in fiscal year 2002, compared with $2 million in 2004--but has cost money in other areas, such as safety and training.

Prison guards in Texas earn $2,589 a month, roughly one-fifth the salary of TDCJ executive director Brad Livingston. With the elimination of overtime pay guards are leaving in droves, making it difficult for administrators to keep prisons fully staffed. In 2004, 5,511 prison guards quit--roughly 21% of the entire workforce.

It worries me, and I suspect it worries people in charge of these prisons," said Dan Beto, director of the Correctional Management Institute of Texas at Sam Houston State University. It creates additional stress on those ...

Los Angeles County Settles Two Jail Medical Malpractice Wrongful Death Suits For $325,000

Los Angeles County settled two prisoner wrongful death suits for $325,000 that alleged negligent medical care during incarceration at the L.A. County jail.

On May 8, 2002, 39 year-old county jail prisoner Crystal Baize was transferred from the Twin Towers Jail to U.S.C. Medical Center, complaining ...

Supreme Court Justice Clarence Thomas Accepts

Supreme Court Justice Clarence Thomas Accepts Gifts Worth Thousands


by Michael Rigby

Justice Clarence Thomas is the Supreme Court's poorest member -- he's also its most prolific gift taker. From 1998 through 2003, Thomas accepted $42,200 worth of cash, antiques, clothes and other free merchandise. The largess includes a bust of president Lincoln valued at $15,000, a Bible once owned by noted 19th-century abolitionist Frederick Douglas worth $19,000, a $5,000 personal check to help pay for a relative's education expenses, and an $800 Daytona 500 commemorative jacket.

Federal law loosely regulates gifts given to public servants, but a glaring loophole exists. While judges and other federal employees are prohibited from accepting anything of value" from persons with official business before them, gifts of unlimited value can be lavished by those without official business.

Such lax rules have raised ethics concerns in some circles. In October 2004, for instance, a panel of the American Bar Association called for more restrictive rules to bar judges from accepting expensive gifts, free tickets and other valuable items regardless of who gives them.
Why would someone do that -- give a gift to Clarence Thomas? Unless they are family members ...

New York Prisoner Assaulted By Guard Awarded $4,200

On September 8, 2004, a court of claims in Buffalo, New York, awarded $4,200 to a state prisoner who was assaulted by a guard at the Attica Correctional Facility.

Juan Matias, a 36-year-old prisoner, claimed that he was assaulted by a prison guard in April 2002. (The guard was ...

28 Die in Philippines Jail Uprising

A March 14, 2005, botched escape attempt by an Al-Qaida linked Abu-Sayyaf member at the Camp Begang Diwa (CBD) detention center in Tanguig, Manila started as a two-day takeover of CBD that ended with 28 dead.

When the incident began, CBD held 470 detainees, including 129 suspected members and leaders of Abu-Sayyaf group, which is notorious for deadly bombings and ransom kidnappings in which some hostages have been beheaded.
The takeover of CBD began when an Abu-Sayyaf member, who was about to be escorted to a morning court hearing overpowered a guard before he could be handcuffed, took a rifle, and shot the two prison guards around him. Other prisoners then grabbed weapons. Other guards and policeman prevented the prisoner's escape, killing two prisoners in the process.

CBD was then taken control of by 100 prisoners. Police began negotiations, which appeared to reach a settlement the same day. In return for their surrender, police agreed to allow the prisoners to hold a news conference. After the prisoners decided the next day that they wanted to keep their weapons during the news conference, police decided to storm CBD.
Hundreds of police stormed CBD on March 15, firing tear gas grenades ...

28 Die in Philippines Jail Uprising

A March 14, 2005, botched escape attempt by an Al-Qaida linked Abu-Sayyaf member at the Camp Begang Diwa (CBD) detention center in Tanguig, Manila started as a two-day takeover of CBD that ended with 28 dead.

When the incident began, CBD held 470 detainees, including 129 suspected members and leaders of Abu-Sayyaf group, which is notorious for deadly bombings and ransom kidnappings in which some hostages have been beheaded.
The takeover of CBD began when an Abu-Sayyaf member, who was about to be escorted to a morning court hearing overpowered a guard before he could be handcuffed, took a rifle, and shot the two prison guards around him. Other prisoners then grabbed weapons. Other guards and policeman prevented the prisoner's escape, killing two prisoners in the process.

CBD was then taken control of by 100 prisoners. Police began negotiations, which appeared to reach a settlement the same day. In return for their surrender, police agreed to allow the prisoners to hold a news conference. After the prisoners decided the next day that they wanted to keep their weapons during the news conference, police decided to storm CBD.
Hundreds of police stormed CBD on March 15, firing tear gas grenades ...

Disclosure of Washington State Prisoner Phone RatesDisclosure of Washington State Prisoner Phone Rates Stymied by the Courts

Disclosure of Washington State Prisoner Phone Rates Stymied by the Courts

by John E. Dannenberg

When recipients of Washington state prisoner-originated long distance phone calls sought to compel disclosure of the telephone rates for those calls, the Washington superior, appellate and supreme courts held (as of July2004) that relevant Washington statutes which on their faces appear to require such disclosure in fact do not, and instead only provide legal remedies if a complainant demonstrates that underlying Washington regulations flowing from the cited statutes have been violated. The complainants accordingly next sought regulatory relief before the Washington State Utilities and Transportation Commission (WUTC) on remand from the Superior Court, which on July 18, 2005 ordered the complaint to proceed there in the discovery phase. However, on September 6, 2005, the Superior Court summarily dismissed the entire complaint for lack of standing, without explanation.

Plaintiffs Sandra Judd and attorney Tara Herivel (collectively, Judd) for years received collect phone calls from PLN's Editor, Paul Wright, then a Washington state prisoner. They sought to compel the telephone companies, who were charging exorbitant tolls, to disclose their rate structures. The legal vehicle for the inquiry was Washington Revised Code §§ 80.36.510, .520 and ...

Colorado DOC's Medical Oversight Found Remiss

An independent auditor found the Colorado Department of Corrections (CDOC) to be lax in its oversight of medical care contractors.

In April 2005, Navigant Consulting, Inc., reported the results of its audit, commissioned by the Colorado State Auditor, of the CDOC external health care services provided to prisoners. The audit examined the rates paid to external care providers, administration of the utilization management program, and the CDOC's oversight of its external care contractor. It did not examine the quality of care provided to prisoners, the facilities, the credentials of the personnel providing the care, or the appropriateness of medical care provided to any prisoner. Navigant concerned itself only with fiduciary matters. If it had looked deeper, as did other auditors, it likely would have found more problems than it did.

"Another state audit of the five private prisons in Colorado found lax oversight," The Denver Post reported. None of the private prison medical clinics were licensed by the state. The CDOC had not inspected any of the clinics from May 2003 to December 2004. Two prisoner deaths may have been caused by medication changes ordered by private prison doctors who had not even examined the prisoners. Kit Carson Correctional ...

$820,000 Damages Upheld Against NY Jailer Who

$820,000 Damages Upheld Against NY Jailer Who Housed Informant with Defendant

by John E. Dannenberg

The Second Circuit U.S. Court of Appeals upheld $820,000 in damages for injuries suffered by an informant who was severely beaten by the defendant he had testified against, when the Nassau County ...

Virginia Governor Warner Restores Felons' Voting Rights, Ignites Controversy

by Matthew T. Clarke

Then Virginia Governor Mark Warner restored the voting rights of 1,892 felons who had served their sentences, 1,110 of them in 2004. Opposition politicians have accused him of "rubber-stamping" the restoration process.
Virginia is one of only seven states that permanently disenfranchise felons. The others are Alabama, Florida, Kentucky and Mississippi. Seven others have lesser restrictions. The remaining states restore voting rights upon completion of the sentence.

About 1.7 million felons nationwide are denied their voting rights despite having completed their sentences. More than 200,000 of them are in Virginia. Warner's restoration of less than one percent of those persons' voting rights since he took office in 2002 prompted some members of the Virginia General Assembly, such as Bradley P. Marrs (R-Richmond), to complain.

In a letter to Warner, Marrs said he was very disturbed to learn of the "breakneck pace" of restoration, warning Warner not to make the process automatic. Warner heeded the warning and prior to leaving office did not restore any additional voting rights to felons.

Warner counters that he reviews each restoration carefully. His increased pace compared to previous governors is because he is addressing the 732-request ...

Remedial Plan And $427,158 Attorney Fees In Wyoming Failure to Protect Suit

by John E. Dannenberg

The Wyoming Department of Corrections (WDOC) settled an Eighth Amendment-based class action complaint brought by prisoner Brad Skinner for WDOC's failure to protect prisoners from assault by other prisoners. The court (U.S. District Court, D. Wyo.) also awarded Skinner's attorneys $427,158 in ...

Louisiana's 2002 Exhaustion Requirement (Act 89) Not Retroactive

The Louisiana Supreme Court held that retroactive application of a 2002 law, requiring exhaustion of administrative remedies by prisoners before bringing a state tort action, would unconstitutionally deprive prisoners of a vested right. Therefore, the court held that the law has prospective application only when the prisoner was not required to comply with the unconstitutional procedure that existed before 2002.

In 1985, Louisiana enacted the Corrections Administrative Remedies Procedure (CARP), La.R.S. 15:1171--- 1179. Following CARP, the Louisiana Department of Public Safety and Corrections (the Department) adopted an administrative remedy procedure... La.R.S. 15:1171(B). As originally enacted, no state court could entertain an offender's grievance or complaint that fell under the purview of the administrative remedy procedure unless and until the offender had exhausted the remedies provided by the procedure. La.R.S. 15:1172(B)." Initially, Section 1171 of the CARP provisions" made no reference to tort actions. However, in 1989, the Legislature amended Section 1171 to expressly include personal injury in medical malpractice within the type of claims encompassed by CARP[.]
In 1997, Louisiana enacted the Louisiana Prison Litigation Reform Act (LPLRA), which, operating in conjunction with CARP, sought to curtail baseless ...

$200,000 Failure-To-Medicate Award Granted to California

Jail Detainee Who Lost Testicle

by John E. Dannenberg


On July 18, 2005, a Solano County, California jail pre-trial detainee, whose infected testicle was not promptly treated, won a $200,000 damage award in Solano County Superior Court after suffering necrosis and subsequent amputation of the testicle.

Wayne Crowder, 46 ...

PLN Sues The Geo Group for Public Records

On Dec. 2, 2005, Prison Legal News filed a civil suit against The Geo Group, Inc. (formerly Wackenhut Corrections) in the Circuit Court for Palm Beach, Florida, demanding access to public records held by the company.
The Geo Group is a for-profit company that operates privatized prisons, including two Florida prisons, and its contract-based fees are paid with public (taxpayer) funds. Pursuant to Florida's public records law, The Geo Group is required to produce requested public records pursuant to Public Records Law, F.S. 119.01(1).

Prison Legal News's editor, Paul Wright, submitted written public record requests to The Geo Group in April, 2005, requesting information related to lawsuits that resulted in settlements or verdicts against the company, as well as contract audits, violations and court-ordered injunctions. While The Geo Group provided a limited amount of information related to one category of the requested records, it ignored the other requests and never responded to a second record request submitted in September.

In its lawsuit, Prison Legal News alleges The Geo Group's failure to provide the requested public records is illegal, malicious and willful, and is designed to delay Prison Legal News from obtaining the records because ...

Michigan Jail Settles Unreasonable Use of Force Case for $130,000

On March 1, 2005, the Wayne County jail in Detroit, Michigan settled an excessive use of force case for $130,00. Plaintiff, Victor Walker, alleged that on October 12, 2000, while being held in the Wayne County Jail in Detroit, Michigan, he was punched in his left eye by a ...

Ban on Separatist Religious Publication

Ban on Separatist Religious Publication Reversed by Eighth Circuit


The Eighth Circuit Court of Appeals reversed a lower court's grant of summary judgment to prison officials related to the refusal to deliver a religious publication they deemed to be racially inflammatory
Missouri Department of Corrections (MDOC) prisoner Michael Murphy was a practicing member of the Christian Separatist Church Society (CSC), a religious group that holds as a central tenet the belief that its members must all be Caucasian because they are uniquely blessed by God and must separate themselves from all non-Caucasian persons.

Murphy sought formal recognition and group worship accommodation for CSC within the" MDOC. Group worship was denied but MDOC granted members of CSC solitary practitioner accommodation." This entitles a prisoner to practice his religion privately in his cell, to keep a sacred religions text, to receive their literature,... to have access to clergy visits, to adjust activities in order to observe holy days, and to wear a religious symbol,...

Prison officials subsequently refused to deliver Issue 36 of The Way, a religious publication, finding that the issue was so racially inflammatory as to be reasonably likely to cause violence."

Murphy brought suit seeking injunctive and monetary ...

California Youth Prison Superintendent

California Youth Prison Superintendent Removed For Using Unreasonable Force


The Superintendent of a California youth prison was permanently removed from his position for using unreasonable force against a ward, and then not reporting it.

Steve Kruse, Superintendent at the N.A. Chaderjian Youth Correctional Facility in Stockton, was placed on administrative leave shortly after the May 27, 2005 incident and was terminated from the position effective August 10, 2005. In an August 4, 2005 report, the State Inspector General (IG) determined that Kruse had grabbed a handcuffed ward's hair and jaw as he was being escorted to another unit following a fight involving 44 youths at the prison. Kruse said he was using reasonable force because the ward was struggling with his escorts, but investigators found the youth was already under adequate control. The 19-year old ward's complaint that Kruse slammed his head against the wall was dismissed because there were no witnesses or visible injuries. The prison remains under an active and ongoing" investigation by the U.S. Department of Justice over repeated complaints that wards' civil rights are being violated there.

Kruse's failure to report the incident violated the department's use-of-force policy, a procedure ...

Florida Awards Contracts Putting Sex Offenders on GPS Supervision; Other States to Follow

The Florida Department of Corrections (FDOC) has awarded three contracts for Global Positioning System (GPS) satellite monitoring of sex offenders. The contracts come on the heels on legislation that allocated $3.9 million over a three-year period to put certain sex offenders on lifetime GPS supervision, even if their sentences or parole terms have expired.
Two of the contracts will keep constant watch over child sexual predators as part of the Jessica Lunsford Act, which was named for a 9-year-old girl who was kidnapped and killed by a registered sex offender in February 2005. The Lundsford Act was passed unanimously by the Florida legislature and signed into law by Gov. Jeb Bush on May 2, 2005. It requires a minimum 25-year sentence for offenders convicted of sexually assaulting a child 12 or younger plus lifetime electronic monitoring upon release, and expanded monitoring of sex offenders who commit crimes against older children. The act only applies prospectively; i.e., to crimes committed from the date of the legislation forward, but could apply to released sex offenders currently under state supervision.

The GPS monitoring contracts were initially awarded to Satellite Tracking of People (STOP) for northern Florida, and G4S Justice Services, a ...

Controversial Ex-Prison Official Lane McCotter Appointed Utah J.P.

Lane McCotter, once the director of the Utah Department of Corrections, has been appointed to a justice of the peace bench in Utah. The McCotter era remains a high-point of prison violence in Utah's history cumulating in the death of a prisoner who had spent 16 hours strapped naked to a restraining chair in 1997. Forced out of office two months after the restraining chair incident, McCotter became a prison consultant and an executive for Management Training Corporation, a Utah-based private prison company. Meanwhile, Utah ceased using restraint chairs in its prisons and settled the civil rights lawsuits against McCotter and the prison system for $200,000.

McCotter started his first job as prison system director in the Texas prison system in 1985. By 1987, he was forced out of that position by allegations that he intentionally erased portions of a videotape showing the beating of a handcuffed, shackled prisoner. McCotter claimed the erasure was an accident. From there, McCotter went to work as director of the New Mexico prison system, where he stayed until 1991. In 1992, he took over as head of the Utah prison system.

McCotter was hired by the federal government in 2003. He and ...

Politics Keeps Arizona Clemency Approvals Rare

by John E. Dannenberg

Only seven Arizona prisoners were granted clemency in 2004, four of whom were on their death beds. This gaunt statistic is the natural progression resulting from Arizona's abolishing parole a decade ago, replacing justice with politics in the form of the Board of Executive Clemency (BEC) and governor's veto.

Prior to 1994, Arizona prisoners with determinate sentences (i.e., a fixed number of years) were eligible to apply for parole after serving half of their term. Under the 1994 Truth in Sentencing" guidelines, such parole was abolished, and prisoners must now do at least 85% of their time, at the discretion of the Department of Corrections (ADOC). In addition, the 1994 laws provide for a mid-term clemency review by the new BEC, subject to approval of any case by the governor. As a result, clemency applications have jumped from 28 in 1994 to 1,014 in 2004, with grant recommendations rising from 3 to 75, respectively.

Of those 75, 46 were unanimous. A unanimous vote portends automatic commutation, unless the governor intervenes. All other grants require affirmative gubernatorial approval to become effective. However, Governor Janet Napolitano did not permit any automatic grants to proceed ...

Wrongfully Convicted Kentucky Man Wins $590,000 Judgment Against Defense Attorney

On June 3, 2004, a Louisville, Kentucky, jury awarded $590,000 to a wrongfully convicted man who spent two years in prison because his defense counsel was negligent.

Plaintiff Gary Puckett and his mother Peggy Puckett were at their home on October 23, 1993, when a fire broke out. Gary ...

85 Year-Old California Prison Doctor Wins $20 Million For Age Discrimination

The chief physician and surgeon at California State Prison, Lancaster, still practicing medicine at age 85, successfully sued the California Department of Corrections (CDC) for age discrimination when CDC forced him to retire. On July 18, 2005, a Los Angeles superior court jury awarded the doctor $20 million, including $1 ...

Fourth Circuit Holds Claims Value Relevant to Frivolous Determination

The Fourth Circuit Court of Appeals held that a district court may consider the value of the prisoner's claim when determining whether to dismiss it as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i), the in forma pauperis statute.


Federal prisoner Paul Nagy was confined at the Federal Medical Facility (FMC) in Butner, North Carolina. On April 3, 2002, Nagy delivered a bag of clothes to the FMC laundry for cleaning. The laundry's practice is to place a tamper proof security tie on laundry bags when they are turned in, and to remove the security tie when they are later picked up. When Nagy collected his laundry the day after dropping it off, however, the bag was open and his clothes could not be found. Apparently the security tie fell off during washing or drying. The FMC replaced Nagy's institutional clothing but not his private clothing, which was a sweat suit worth about twenty five dollars.

Pursuant to 28 U.S.C. § 2672 of the Federal Tort Claims Act (FTCA), Nagy filed an administrative claim against the FMC on April 17, 2002, seeking twenty-five dollars in compensation for the lost sweat suit. The Regional ...

2006 Certain Days: Freedom for Political Prisoners Calendar

The 2006 Certain Days calendar features 12 full color imagesincluding collages, murals, paintings and moreand over a dozen pages of writing created by and about former and current American political prisoners and prisoners of war. This wall calendar is the fifth of its kind, produced by a collective of organizers living in Montreal and New York City, in collaboration with three long-term political prisoners being held in New York for their action in anti-imperialist and anti-racist struggles: Herman Bell, Robert Seth Hayes and David Gilbert.

Certain Days is an educational and fundraising project whose goals are to educate people about the important role political prisoners and prisoners of war have playedand continue to playin liberation movements, and to raise money for grassroots organizations struggling against the prison industrial complex in the U.S. and Canada. This year, proceeds will be divided among The New York State Task Force on Political Prisoners, No One Is Illegal, All of Us or None, The Midwinter Harvest Program, and the Critical Resistance Katrina Effort.

To purchase your copy of Certain Days, visit www.certaindays.org, or write to us at:
Certain Days
Old Chelsea Station
PO Box 64
New York, NY 10113
Calendars cost ...

Florida Violates Sex Offenders for Possessing Common Men's Magazines

Florida Violates Sex Offenders for Possessing Common Men's Magazines

The State of Florida, in a crackdown on sex offenders, is sending probationers to jail for probation violations because they possessed racy magazines or sex manuals. The crackdown comes from increased surveillance of sexual offenders after the March murder of Jessica Lunsford, a 9-year-old Florida girl allegedly killed by a convicted sex offender on probation.

Probation officers and a local police searched the homes of sex offenders to make sure they are following the terms of their release. The Florida Department of Corrections (FDOC) contends it is enforcing existing court orders as part of its "zero tolerance" policy.

When Andrew Calderon's home was searched on May 18, 2005, officers found a sexy calendar, a racy poster, and a few copies of Maxim Magazine. Calderon, 23, was jailed for six days on a probation violation for possessing "sexually stimulating" material. Calderon's probation stems from the sexual battery of a mentally disabled relative. He awaits a hearing to determine if the materials warrant return to prison.

"Anything that is sexually stimulating, we are going to violate them on and the judges are going to make those decisions," said Debbie Buchanan ...

Louisiana Prisoners Obscenity Conviction for Masturbation Vacated

The Louisiana Court of Appeals vacated a prisoner's obscenity conviction and sentence for masturbating in a public shower, within view of a female guard.

Louisiana prisoner, Bobby Holmes, was charged with two counts of obscenity in violation of La.R.S. 14:106. The first alleged act of obscenity occurred on August 14, 2001, when a female prison guard accused [Holmes] of stroking his erect penis with his hand in a masturbating manner' while in the prison shower... The second act occurred on April 22, 2002, when [Holmes] allegedly exposed his penis to another female guard and masturbated.

At the time of the August 14, 2001 incident, La.R.S. 14:106(A)(1) provided that the act of obscenity must occur in any public place or place open to the public view[.]" However, the statute was amended on August 15, 2001, or five hours and fifty one minutes after [Holmes'] conduct occurred." The 2001 amendment provided that the obscenity could occur in any public place or place open to the public view, or in any prison or jail[.]" The 2001 amendment was apparently applied to the August 14, 2001 incident
Holmes pled guilty to both counts and was ...

"Actual Innocence" Rule Inapplicable to Breach of Contract by Lawyer

"Actual Innocence" Rule Inapplicable to Breach of Contract by Lawyer

The Seventh Circuit Court of Appeals reversed a district court's dismissal of a diversity suit, holding that the actual innocence" rule does not bar claims of breach of contract/fiduciary duty.

Hillary Winniczek was charged with federal crimes stemming from a scheme to help people obtain commercial drivers' licenses fraudulently. He hired a lawyer to represent him and was later approached by Sheldon Nagelberg, another lawyer, who told Winniczek and his wife that the lawyer he hired was inexperienced in criminal actions and they should fire him and hire Nagelberg; which they did.

Nagelberg then told them that Winniczek had a good defense... but that it would cost... $150,000 in fees, plus $20,000 in expenses, to present the defense. They paid him the $170,000 over the course of the year preceding the scheduled date of the criminal trial.

As soon as Nagelberg was fully paid, he told Winniczek's that he wouldn't take the case to trial because Winniczek had made statements to the authorities when he was represented by [the first lawyer] that scotched any defense he might have had, and as a result ...

California Tort Claim Dismissed For Failure to Fully

California Tort Claim Dismissed For Failure to Fully Exhaust Administrative Remedies

by John E. Dannenberg

The California Court of Appeal held that a prisoner's tort claim must be dismissed without prejudice for failure to fully exhaust administrative remedies even though the response to his administrative appeal was allegedly overdue. Separately, the court held that as public entities, the state respondents were immune from state law liability from intentional infliction of emotional distress and negligence.

Prisoner Justin Wright sued the California Department of Corrections (CDC) in state court under 42 U.S.C. § 1983 alleging medical malpractice after the October 31, 2001 attempted repair of his two detached retinas resulted in extensive vision loss. Additionally, he complained that CDC failed to provide him medical care beginning on August 22, 2001, for which he filed a CDC Form 602 administrative appeal on March 24, 2002. On March 31, 2002, he filed a government tort claim with the State Board of Control, which was denied on May 10, 2002.

On December 13, 2002, Wright filed his first amended complaint in state superior court. The defendants demurred, arguing that because CDC had not yet answered his 602 at the third level, his complaint ...

Georgia Prison Warden Proper Defendant In § 1983, ADA Suit

by Michael Rigby

The U.S. Eleventh Circuit Court of Appeals held that a Georgia prison warden was suable under the Eighth Amendment and Title II of the Americans with Disabilities Act (ADA).

Plaintiff Tracy Miller is a wheelchair-bound paraplegic at the Georgia State Prison (GSP). Miller suffers from a completely paralyzed right leg, a partially paralyzed left leg, and a neurogenic bladder causes urinary incontinence.

Since 1998, Miller has been in disciplinary isolation in GSP's maximum-security K-Building" due to multiple disciplinary infractions. Miller is slated to remain there until at least 2012. Because the isolation cells are tiny, prison policy calls for beds to be removed daily to allow wheelchair-bound prisoners additional space in which to move around.
In his lawsuit, Miller alleged that the conditions he was subjected to in K-Building violated the Eighth Amendment's prohibition against cruel and unusual punishment and Title II of the ADA. Miller named as defendants the State of Georgia, the Georgia Department of Corrections (GDOC), GSP Warden Johnny Sikes in his official and individual capacities, Inmate Discipline Hearing Officer Ronald King, and GDOC Commissioner Wayne Garner. Miller sought monetary and injunctive relief.

Miller made multiple allegations in his complaint. First ...

No Qualified Immunity from 57-Day Illegal Confinement

The Eighth Circuit Court of Appeals held that several prison officials were not entitled to qualified immunity for their roles in confining a prisoner 57 days beyond his ordered release.

In December, 1977, Daryl Davis was convicted of theft under Missouri law. He was then sentenced as a prior offender, to seven years in the custody of the Missouri Department ofaCorrections (MDOC).

In March, 1999, the Missouri Court of Appeals reversed Davis's conviction and granted a new trial. On remand, Davis entered an Alford plea and was sentenced to one year, with credit for time served. Since he had already served approximately 18 months, the court ordered his immediate release.
Despite the judge's order that Davis was to be released immediately, county officials placed Davis back into county jail to await transport back to" the MDOC. He was transferred four days later.

After returning to [prison], Davis repeatedly protested his continued incarceration but was ignored, met by indifference, or admonished for refusing to accept responsibility for his crime." Prison officials failed to check records or asked that Davis produce his Judgment and Sentence Order. Rather, they scolded that Davis for his criminal thinking' in continuing to demand release ...

PLRA Exhaustion Requirement Has

PLRA Exhaustion Requirement Has Procedural Default Component


The Third Circuit Court of Appeals held that the administrative exhaustion requirement of the Prison Litigation Reform Act (PLRA) includes a procedural default component. The court also held that the determination whether a prisoner has properly' exhausted a claim (for procedural default purposes) is made by evaluating the prisoner's compliance with the prison's administrative regulations governing inmate grievances, and the waiver, if any, of such regulations by prison officials.

Pennsylvania Department of Corrections (DOC) prisoner Robert Spruill suffered from a chronic and debilitating lower back disorder, spondylotic spinal stenosis with recurrent compression of L3 and/or L4 nerve root on right" which caused him excruciating pain and which caused him to fall and injure himself on two occasions.

Despite numerous requests to receive a physical examination and treatment, prison medical staff ignored the requests, accusing him of faking his injuries, and playing games." Twelve days after Spruill's initial complaints in his filing of the separate grievances, Dr. [Shawn] McGlaughlin had Spruill brought into the medical examination room, where Dr. McGlaughlin deliberately bent and twisted Spruill's legs as if he was trying to shape a pretzel.'" He did not examine ...

Court May Infer Deliberate Indifference from Obviousness of Risk

The Seventh Circuit Court of Appeals vacated a district court's grant of summary judgment to prison officials in a prisoner's claim that officials were deliberately indifferent to his safety when they had him strip insulation from a live 480-volt wire without protective gloves.
Indiana prisoner Christopher Hall worked as an electrician, even though he was not a journeyman electrician, at the Food Industry Plant of the Correctional Industrial Facility. He was supervised by electrician Foreman Allen Bennett and Plant Engineer Stan Russell.

On July 29, 1997, Russell directed Bennett's team to locate an electrical circuit in the plant capable of handling the additional load of another machine." Russell refused to allow the team to perform the work after hours with the power off.

The team obtained a circuit tracer, a voltage meter, and a lineman's pliers with protective insulation on the handles. Hall insists that he also asked Bennett for protective gloves but was refused.

Hall says that his first task with respect to each potential circuit was to attach the circuit tracer by stripping the insulation from the line and attaching alligator clips to the exposed wire...Hall was using a lineman's players to ...

Washington S.Ct. Upholds Persistent Prison Misbehavior Statute

In a 54 decision, the Washington State Supreme Court upheld a law that makes it a felony for a Washington prisoner to commit a serious prison infraction after losing all potential earned early release credits. The majority concluded that the statute was not void as an unconstitutional delegation of legislative authority and that it does not violate equal protection.

The Washington Legislature adopted RCW 9.95.070, creating the crime of persistent prison misbehavior. Under the law, it is a Class C felony for a Washington prisoner, serving a sentence for a crime committed on or after August 1, 1995, to knowingly commit a serious prison disciplinary infraction, after losing all potential earned early release time credit. The statute does not define serious prison discipline infraction," leaving that up to the Washington Department of Corrections (DOC).

In 1999, Division Three of the Washington Court of Appeals held that RCW 9.94.070 constitutes an unlawful delegation of authority to the DOC. See: State v. Brown, 95 Wn. App. 952, 977 P.2d 1242 (1999) (Brown I), aff'd on other grounds, State v. Brown, 142 Wn. 2d 57, 11 P.3d 818 (2000) (Brown II).

In 2000, Joseph Goodrich Simmons ...

Seventh Circuit Upholds $56.5 Million Jail Murder Verdict

The Seventh Circuit Court of Appeals upheld a $56.5 million jury verdict against former jail guards who murdered a pretrial detainee. This is the largest verdict for abuses against a single victim in an American jail/prison case that we are aware of.

On October 25, 1997, Christopher Moreland ...

Seventh Circuit Reverses Dismissal of Retaliation Claim

The Seventh Circuit Court of Appeals reversed a district court's dismissal of an Illinois prisoner's retaliation claim.

On January 17, 2003, Illinois prisoner Robert Hoskins worked in the Dixon Correctional Center (Dixon) cafeteria when Food Services Supervisor Connie Lenear called him a racial epithet because he could not help relocate cartons of chocolate milk." Hoskins reported the incident and filed a grievance.

On January 20, 2003, Lenear approached Hoskins and he told her that he was not speaking to her." Another prisoner later told Hoskins that Lenear& said she intended to get Hoskins transferred out of Dixon." Shift Supervisor Captain Schott was also overheard telling Lenear to issue Hoskins a disciplinary ticket for insolence." She did so, and on Schott's instructions, Hoskins was placed on investigative status' and taken to segregation.

On January 21, 2003, Hoskins filed grievances against Lenear and Schott, alleging that they issued the falsified insolence" disciplinary report in retaliation for his January 17, 2003 grievance.

On January 28, 2003, Hoskins was found guilty of insolence and sanctioned to loss of his job. Although he was not sanctioned to serve a segregation term, he remained there on investigative status.

On February 17, 2003, Schott ...

Dismissal of §1983 Complaint Against Ohio CCA Prison Reversed

by Bob Williams

The United States Court of Appeals for the DC Circuit has reversed the dismissal of a 42 U.S.C. § 1983 prisoner complaint against the CCA facility at Youngstown, Ohio, finding the complaint did state a claim of municipal liability against the District of Columbia who contracted with the Ohio-based private prison.

Morris J. Warren was a District of Columbia (the District) prisoner incarcerated at the Corrections Corporation of America (CCA) prison in Youngstown, Ohio, pursuant to a contract between the CCA and the District. While there, Warren alleges he was subject to inhumane treatment including being forced to lie on a cold floor naked between 15 to 20 hours" every day; denied cell running water or toilet water [for] over 72 hours, weeks at a time;" tear gas sprayed in cells and pods daily; deprived of medication for a month; forced to endure a blood draw with others in his pod using common needles; and destruction of property. As a result, Warren claims he caught pneumonia, suffered a stroke, and was infected by yellow jaundice.

Warren claimed the District knew or should have known" about his treatment and did nothing to stop it. In support of ...

News in Brief

News in Brief:

Arkansas: In 2001 prison guards used force 12 times to remove prisoners from their cells. By 2005 they did it at least 40 times. Prison officials attribute this to more hardened prisoners and not more brutal guards.

Arkansas: On December 1, 2005, an unidentified prison guard at the Varner Unit super max prison, resigned after confessing to engaging in oral sex with an unidentified 33 year old male prisoner at the facility. The guard claimed the sex was consensual, even though Arkansas outlaws sex between prisoners and staff. The prison claims he was raped and the assaults occurred on more than one occasion. The prisoner reported the assault by calling a special sexual assault hotline installed by the DOC to comply with the Prison Rape Elimination Act.

Brazil: On December 17, 2005, Henrique Fernandes da Silva, 35, security chief of the Bangu 3 prison complex in Rio de Janeiro, one of the largest in Brazil, was shot and killed in his home in front of his wife and children. Da Silva had received threats after searching the prison to confiscate cell phones, drugs and weapons. He is the fifth official from the prison to be murdered in ...

Former California Warden Allegedly

Former California Warden Allegedly Assaults News Reporter

The former warden of Salinas Valley State Prison (SVSP), Anthony Lamarque, allegedly swung a cane at Sacramento News and Review reporter Stephen James and then pinned him against a wall, when Lamarque apparently objected to being photographed at a civil lawsuit deposition being taken in the Embassy Suites Hotel in Seaside, California on July 11, 2005. Lamarque is being sued for alleged retaliation against SVSP prison guard Donald Vodicka, who exposed SVSP's "Green Wall" [code of silence] guard's gang in testimony to the California State Senate. (See: PLN, Sep. 2004, p.17.) In his deposition, Lamarque dismissed the Green Wall as "only a fraternal or social group," whereas Vodicka had testified that they assaulted prisoners, intimidated other SVSP guards, and enforced a code of silence among them.

Lamarque's counsel, Deputy Attorney General Mary Cain Simon, said she deemed the deposition private, and when James persisted, threatened to have him ejected from the hotel, a response media lawyer Terry Francke called an overreaction. Cain-Smith accused Vodicka's lawyer of malevolently arranging for the photographer, whereupon she terminated the deposition and left the room. When James then entered the room with his ...


 

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