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Prisoner Education Guide

Prison Legal News: March, 2005

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Volume 16, Number 3

In this issue:

  1. California Corrections System Officially Declared Dysfunctional" - Redemption Doubtful (p 1)
  2. Pay To Play: Guard Union Spreads the Wealth (p 5)
  3. New York Jail Settles Strip-Search Suit For $2.7 Million (p 8)
  4. Five Florida Cases Remanded for Award of Jail or Prison Credits (p 9)
  5. South Carolina Prison Officials Cheat Charity, Attempt Coverup (p 10)
  6. Washington Guards Settle Lawsuits For $7,270,000 And $810,000, Lose Third (p 12)
  7. Ohio Lawyer Suspended for Promising Favor from Judge for Money (p 13)
  8. Harsher Oregon Parole Statute Cannot Be Applied Retroactively (p 14)
  9. From the Editor (p 14)
  10. Problems Plague Illinois Jails And Prisons, Employees Watch Television for Pay (p 15)
  11. Connecticut Woman Gang-Raped In Sheriff's Van Settles Suit For $480,000 (p 16)
  12. Prison Population Still Rising in Mid-Year 2003 (p 17)
  13. Exhaustion of Administrative Remedy Requirement May be Excused (p 18)
  14. Wrongfully-Convicted Missouri Woman Receives $7.5 Million After 16 Years in Prison (p 18)
  15. Judges Of Death (p 19)
  16. U.S. v. Booker: The Left Wing Gives and the Right Wing Takes Away (p 20)
  17. Delaware Prisoner's $100,000 Damage Award For Retaliation Upheld (p 21)
  18. Fulton County Jail under Federal Control (p 22)
  19. 9th Circuit Explains Habeas Jurisdiction Under 28 U.S.C. § 2254, Upholds Washington Transfer to Priv (p 24)
  20. NO FTCA or IIED Claims Stated in Oregon Testicular Radiation Case (p 25)
  21. Uprising by Vermont Prisoners Damages CCA Prison in Kentucky (p 26)
  22. Destruction of Exculpatory Disciplinary Evidence May Violate Due Process Clause (p 28)
  23. New York Jail's Strip Search Policy Permanently Enjoined (p 29)
  24. Oregon Ban On Sexually Explicit Mail, Fantasy Games Upheld, State Law Claims Remanded (p 30)
  25. Washington Community Custody Sanctions Upheld (p 30)
  26. Delaware Prisoner Killed In Hostage Standoff, Counselor Raped (p 31)
  27. Summary Judgment Reversed In Los Angeles Jail Over-Detention Suit (p 32)
  28. Harsh Pre-trial Conditions of Confinement Justify Reduced Federal Sentence (p 32)
  29. Fourth Circuit Reinstates Federal Prisoner's FTCA Claim (p 32)
  30. Pennsylvania Statute Banning Sex Between Staff and Prisoners Upheld (p 34)
  31. $78,435 in Attorney Fees for Successful Challenge to Pennsylvania's Megan's Law (p 35)
  32. PHS and Florida Sheriff Fight Over Liability in Jail Beating Death Suit (p 36)
  33. Mailbox Rule Applies to Texas Prisoners Civil Filings (p 36)
  34. Civil Punitive Damages On Top Of Criminal Punishment Is Not Double Punishment (p 37)
  35. Arizona Appellate Court Vacates Restitution Order In Escape Case (p 38)
  36. Idaho Prisoner States Valid Retaliation Claim Against Parole Commission (p 38)
  37. Lucasville: The Untold Story of a Prison Uprising (p 39)
  38. Missouri Post-Conviction Proceedings Not Encompassed By PLRA Payment Scheme (p 40)
  39. Massachusetts Court Imposes Time Limits For Unrepresented Criminal Defendants (p 41)
  40. News in Brief: (p 42)
  41. Washington Absconding Does Not Toll LFO Collection Statue (p 44)

California Corrections System Officially Declared Dysfunctional" - Redemption Doubtful

California Corrections System Officially Declared
Dysfunctional" - Redemption Doubtful

by Marvin Mentor

Culminating a multi-year crescendo of criticism leveled at California's Corrections system from frustrated legislative, judicial and executive leaders, the Corrections Independent Review Panel (CIRP) recently tasked by Governor Schwarzenegger declared in its 359 page June 30, 2004 report, Reforming Corrections, that Corrections was in such disrepair as to be dysfunctional." The panel, chaired by former California Governor George Deukmejian (under whose earlier leadership Corrections more than doubled in size), was unflinching in its derogation of Corrections' past management as well as of the overly influential prison guards union, the California Correctional Peace Officers Association (CCPOA). This system is in chaos," said Joseph Gunn, executive director of the blue ribbon CIRP, when testifying at a California Senate hearing. He unabashedly described the system as so far gone it can't reform itself without independent outside public oversight from a [civilian] commission," which he called the linchpin" of the CIRP report's 239 recommended changes. But less than 24 hours after the report's release, Governor Schwarzenegger flatly rejected the civilian oversight commission concept because it would diminish his executive branch power. Corrections Oversight Committee co-chair Senator Gloria Romero was ...

Pay To Play: Guard Union Spreads the Wealth

From January 3, 2000 to February 9, 2004, 26 of the 40 California state Senators and 50 of the 80 Assembly Members received funds - ranging from $1,000 to $333,000 - from the California Correctional Peace Officers Association (CCPOA), the guards union, and/or Native Americans and Peace Officers Political Action Committee (NAPO). [NAPO acts as a shill to funnel CCPOA money to legislators, as do Senate and Assembly Leadership Funds.] Legislators responded in July, 2004, when, feigning to abate the state budget crisis, they inked a controversial renegotiated" guards' contract. But the deal that was cut has been harshly criticized by U.S. District Judge Thelton Henderson as giving the guards power that frustrates the repair of prisoners' constitutional rights violations the court has been trying to make for fifteen years.

In exchange for a 5% pay raise delay for six months (worth $108 million, out of a total 37% pay raise), the CCPOA gained new controls over prison management. It also was guaranteed previews of confidential video tapes that are in evidence pending excess-use-of-force and other employee misconduct investigations. Senator Gloria Romero said this would have a chilling impact on prisoners and guards who seek to file complaints ...

New York Jail Settles Strip-Search Suit For $2.7 Million

On March 10, 2004, the parties involved in a class action lawsuit over unlawful strip-searches performed during intake at the Rensselaer County (New York) Jail agreed to settle the case for $2.7 million.

On various occasions between June 26, 1999 and July 1, 2002, the 11 named plaintiffs in ...

Five Florida Cases Remanded for Award of Jail or Prison Credits

Florida's Second and Fifth District Courts of Appeals have remanded five separate cases for the award of jail or prison credit. Each case was filed under Florida Rules of Criminal Procedure 3.800(a) alleging illegal sentences were imposed for failure to award jail or prison credits they were entitled to.

In the first case, Florida prisoner Connie C. Thomas claimed her sentence was illegal because she was entitled to credit for an additional 32 days spent in the Hillsborough County Jail and 135 days spent in the Pinellas and Hillsborough County jails. Thomas was sentenced to two years in prison after she violated her probation.

Florida's Second District Court of Appeals held Thomas was not entitled to the 32 days credit because this time was included in the thirty-five days of jail credit she had already received. Turning to the 135 days credit claim, the Court said that a defendant is not entitled to jail credit for time spent on detainer in another county's jail on unrelated charges. Thomas, however, was actually arrested in Pinellas County for violation of probation on a Hillsborough warrant. The matter was remanded to award credit or to attach records to ...

South Carolina Prison Officials Cheat Charity, Attempt Coverup

South Carolina Prison Officials Cheat Charity,
Attempt Coverup

by Michael Rigby


Officials at South Carolina's Lieber Correctional Institution (LCI) were supposed to be supplying free prison labor to a charity that builds portable housing for the elderly. Instead, they were stealing building materials and trying to extort money from the charity's director, according to lawsuits filed by two former employees.

When the corruption was exposed, LCI officials apparently used intimidation and lies to hinder the investigations. An audit by the State Law Enforcement Division (SLED) supported the allegations, but two county solicitors still declined to prosecute. The FBI has now been asked to investigate.

From June 1999 until October 2001, prison officials assisted the United Methodist Relief Center, a Mount Pleasant-based charity, with its elderly housing program. LCI supplied prison labor to construct the wood houses on mobile home frames. The charity provided the materials. To speed things along, LCI officials were authorized to make the necessary purchases on the Relief Center's Lowe's account.

Soon after the program began, Roger Goodman, a carpentry and plumbing teacher at the prison, said his supervisor told him to order thousands of dollars worth of tools on the charity's ...

Washington Guards Settle Lawsuits For $7,270,000 And $810,000, Lose Third

by Michael Rigby


When most people hear prison lawsuit," they think of prisoners as the initiators. But the truth is, guards and other disgruntled prison workers are prolific litigators as well. In 2004, for instance, Washington's Pierce County Superior Court entertained three class-action lawsuits brought by Washington prison employees ...

Ohio Lawyer Suspended for Promising Favor from Judge for Money

Ohio Lawyer Suspended for Promising
Favor from Judge for Money

by Robert H. Woodman


Overruling a more lenient recommendation from the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court indefinitely suspended Dayton attorney Daniel L. O'Brien from the practice of law. O'Brien was found guilty by the Board of promising a client in a criminal case that he could obtain a favor from the trial judge in exchange for $12,000.

Kurtis Wallace was O'Brien's client and had been represented by O'Brien on several matters. Charged with theft and forgery, Wallace agreed to plead to theft in exchange for a nolle prosequi on the forgery charge. O'Brien assured Wallace he would get no prison time. On the day of sentencing, however, Judge Michael T. Hall told O'Brien he intended to imprison Wallace. Shocked, Wallace fled the courthouse.

Wallace contacted O'Brien several days later and said that his brother would lend him $12,000 to pursue withdrawal of the guilty plea. Two days later, Wallace again called O'Brien, this time secretly recording the conversation. O'Brien told Wallace that for $12,000 he would find someone to whom the ...

Harsher Oregon Parole Statute Cannot Be Applied Retroactively

by John E. Dannenberg


A divided panel of the Ninth Circuit U.S. Court of Appeals ruled that Oregon's Revised Statute § 144.125(3)(a) (1993) was an ex post facto law as applied to denying parole to an Oregon prisoner whose crime predated the statute.

Gilbert Brown was convicted in 1982 of four aggravated sexual charges resulting in an indeterminate sentence of 60 years. His parolability, in turn, depended upon psychological evaluations presented to the Oregon State Board of Parole (Board). The Board relied upon Rev.Stat. § 144.125(3)(a) as amended in 1993 to permit denying parole based upon a diagnosis that the prisoner had a psychological disorder predisposing" him to commission of a dangerous crime, whereas the pre-1993 statute (§ 144.125) required a diagnosis of present severe emotional disturbance such as to constitute a danger to society...." Although his actual psychological diagnosis found Brown did have some signs of emotional disturbance of a passive-dependent nature," it concluded he [does not have] a severe or extreme emotional disturbance ... [n]or is [he] a danger to ... others in the community." Nonetheless, the Board denied him parole using the 1993 formulation when they interpreted the psychological analysis to ...

From the Editor

by Paul Wright

On February 1, 2005, the Ninth Circuit US court of appeals upheld the injunctions in Prison Legal News v. Lehman, 272 F. Supp.2d 1151 (WD WA 2003) which require that the Washington Department of Corrections deliver PLN's subscription renewal letters, book and subscription flyers and similar mailings to its prisoners regardless of the postage rate at which they are sent. The court held the Washington DOC's ban on catalogs" was unconstitutional. We will report the full details of the ruling in next month's issue of PLN.

On January 31, 2005, we concluded our matching grant fundraiser and the results were very disappointing. An anonymous donor had agreed to match all donations made to PLN up to $25,000.00. Unfortunately, PLN subscribers only donated $8,371.05 for which PLN will receive $13,010.87 in matching grant funds, which means we did not qualify for almost half of the potential funds available.

The last time PLN raised its subscription rates was in 1999 and in the meantime we have gone from 32 pages in size to our current 48 pages. In addition to bringing readers more news and information than ever before ...

Problems Plague Illinois Jails And Prisons, Employees Watch Television for Pay

Problems Plague Illinois Jails And Prisons,
Employees Watch Television for Pay

by Michael Rigby


While Illinois Governor Rod Blagojevich was using Department of Corrections (DOC) resources to monitor his image on television, sex, drugs, and violence reigned supreme in the state's jails and prisons.

In 2002 and 2003, Illinois was reeling from its worst financial crisis in decades. State prisons were staggered by staff shortages resulting from deficit-related layoffs. And DOC employees around the state were busy watching television rather than prisoners.

Under a practice implemented in 1991, prison employees videotape and review television newscasts, then pass on relevant segments to the governor's office through interoffice mail. Most state prisons are set up to record the newscasts, said DOC spokesman Sergio Molina. But the practice has been expanded under Blagojevich. According to Molina, more time is being spent on videotaping now than under previous administrations.

In light of the budget deficit and staff shortfalls, many state politicians voiced concerns about the blatant waste of resources. With all of these problems facing Illinois, perhaps the governor should focus on those issues and not worry about how his hair looks on television," said Illinois GOP spokesman Jason Gerwig.

The criticism ...

Connecticut Woman Gang-Raped In Sheriff's Van Settles Suit For $480,000

by Michael Rigby


The State of Connecticut has paid $480,000 to settle a lawsuit brought by a female prisoner who was gang-raped by male prisoners in the back of a sheriff's van.

On August 18, 1999, S.C. was a prisoner being transported in a New Haven County ...

Prison Population Still Rising in Mid-Year 2003

by Robert H. Woodman


In May, 2004, the Bureau of Justice Statistics (BJS) reported that as of June 30, 2003, the total State prison and jail population rose 2.6% from the same date in the previous year, while the Federal prison population rose 5.4% during the same period. The total number of prisoners in both State and Federal jurisdictions (including those held in jails) rose by 40,983 persons, the largest increase in the prisoner population since 1999. PLN has previously reported on BJS surveys of prisoner populations (for example, PLN, May 2003, page 33).

The United States now incarcerates 715 people per 100,000 residents in Federal and State prisons and in jails. This is up from 703 per 100,000 in June 2002, and 672 per 100,000 in 1999. Stated another way, on June 30, 2003, about one in every 140 U.S. residents was in prison or in jail. The figure is higher if only adults are included.

Since December 1995, the overall prisoner population has experienced a 3.7% annual growth rate, with the Federal Bureau of Prisons (BOP) population growing at 8.0% annually, all States combined growing at 2.9% annually ...

Exhaustion of Administrative Remedy Requirement May be Excused

The Second Circuit Court of Appeals has held that the failure to exhaust administrative remedies may be excused in limited circumstances and should be excused in this case. This civil rights action arose from events that occurred while Ivan Rodriguez was incarcerated in New York's Westchester County Jail (WCJ) from July 1997 to November 1998. Rodriguez's complaint alleged he was beat by jail personnel and that EMSA Correctional Care denied him proper medical treatment for his injuries.

The defendants moved for summary judgment based on Rodriguez's failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a) (2000). Rodriguez admitted he did not exhaust administrative remedies, but sought to excuse his omission primarily for two reasons. First, he contended that he did not think exhaustion was required for a single episode of prisoner mistreatment, as distinguished from continuing prison conditions. Second, he contended that by time the Supreme Court ruled in Porter v. Nussle, 534 U.S. 516 (2002) [PLN June 2002, pg. 17], that all prisoner complaints required exhaustion, he had been transferred from WCJ, and administrative remedies were no longer available to him.

The district court granted the defendant's judgment, and ...

Wrongfully-Convicted Missouri Woman Receives $7.5 Million After 16 Years in Prison

Wrongfully-Convicted Missouri Woman Receives
$7.5 Million After 16 Years in Prison

by Matthew T. Clarke


On September 14, 2004, the St. Louis suburb of Dellwood settled a suit by a woman wrongfully convicted of murder for $7.5 million.

In January 1983, Ellen Maria Reasonover, a 5'-7, 120-pound ...

Judges Of Death

As the nation pondered the fate of a young California man being sentenced to death, the case of another man, one lesser-known, one without wealth or whiteness, comes back before the nation's highest court, after having been shunted through a series of killing courts in Texas.

Thomas Miller-El, 53, was just before the U.S. Supreme Court about 2 years ago, when 8 of the 9 justices determined that the Court of Appeals erred in denying a certificate of appealability" (COA) on Miller-El's claim of racial discrimination in his jury selection.

Back before the Texas state and federal courts, Miller-El expected them to respect the decision of the U.S. Supreme Court. But, as the saying goes, he had another thing coming.

Both the Texas Court of Criminal Appeals (sort of a Texas Supreme Court for criminal cases), and the 5th Circuit U.S. Court of Appeals, promptly denied Miller-El's claims, by virtually ignoring what the majority of the Supreme Court said, and glomming onto what was written by the lone dissenter in the case, Associate Justice Clarence Thomas, to support their denials.

In legal circles, this is almost unheard of. One former chief judge, John J ...

U.S. v. Booker: The Left Wing Gives and the Right Wing Takes Away

U.S. v. Booker: The Left Wing Gives
and the Right Wing Takes Away

by David Zuckerman


As federal prisoners are well aware, the facts found by a jury often bear little relation to the facts relied on at sentencing. Under the federal Guidelines, the sentencing judge determines a wide variety of factors -- such as drug quantity, monetary loss, or role in the offense -- that can increase the sentence astronomically. In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d (2000), and Blakely v. Washington, 542 U.S. --, 124 S. Ct. 2531, 159 L. Ed. 2d 493 (2003), the Supreme Court invalidated state sentencing schemes under which a judge made findings that increased the maximum sentence authorized by the jury's verdict alone. In United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105, the defendants argued that the same principle should apply to the federal Guidelines.

On January 12, 2005, the U.S. Supreme Court issued its decision. United States v. Booker, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). By a vote of five to four, the Court held that the Guidelines were unconstitutional. Four of ...

Delaware Prisoner's $100,000 Damage Award For Retaliation Upheld

by Michael Rigby


A disabled Delaware prisoner's $100,000 damage award for retaliation will stand, a federal district court in Delaware has held.

On August 20, 1999, Roger Atkinson, a blind prisoner with a host of medical problems, sued Delaware prison officials under 42 U.S.C. § 1983 after ...

Fulton County Jail under Federal Control

by David M. Reutter


For the second time since 1999, Georgia Federal District Judge Marvin H. Shoob has taken over supervision of the Fulton County Jail. Fulton County Jail Sheriff, Jacquelyn H. Barrett, told the court to go ahead, telling the court that appointing a receiver to oversee the jail, which holds over 3,000 prisoners, was a positive step.

The Court acted quickly after a lawsuit was filed in June 2004 on behalf of FCJ's prisoners by Stephen Bright, Director of Southern Center for Human Rights. That complaint made FCJ sound like a dungeon that the Sheriff had no control of.


A Modern Day Dungeon


Even before FCJ opened in the mid-1980's, it was evident the jail and its systems would deteriorate sooner rather than later. While it was under construction, it was determined FCH was smaller than what the county required to house its prisoners. Instead of spending more money to expand the jail, officials decided to pack 'em in." To make this happen the number of bunks were doubled even though the number of showers, toilets, and other utilities remained the same. A third bunk was recently added to each cell.

Dr. Robert B. Griefinger ...

9th Circuit Explains Habeas Jurisdiction Under 28 U.S.C. § 2254, Upholds Washington Transfer to Priv

9th Circuit Explains Habeas Jurisdiction Under 28 U.S.C. § 2254, Upholds Washington Transfer to Private Prison


The U.S. Court of Appeals for the Ninth Circuit has held that a state prisoner serving time on a state court judgment must seek habeas relief under 28 U.S.C. § 2254.

In October of 1999, Joel White was serving time in a Washington state prison as a result of a judgment issued by a Washington state court. White, along with several hundred other Washington state prisoners, was transferred to Crowley County Correction Facility (CCCF), a privately owned, for-profit prison in Colorado. The transfers were the result of an administrative decision made by the Washington Department of Corrections (DOC) in an attempt to alleviate overcrowding therein.

On January 18, 2000, White petitioned the Washington Supreme Court for a writ of habeas corpus. He argued that his transfer to CCCF was illegal; thus CCCF had no authority to detain him. On that basis, White sought his immediate release as a remedy. The Washington Supreme Court dismissed White's petition, along with several other similar petitions. That order became final on May 18, 2001.

On March 1, 2002, White petitioned the U.S. District ...

NO FTCA or IIED Claims Stated in Oregon Testicular Radiation Case

The Ninth Circuit Court of Appeals held that a prisoner who voluntarily participated in testicular radiation experiments while in prison did not establish a Federal Tort Claims Act (FTCA) violation. The court also held that the prisoner did not establish a prima facie claim for intentional infliction of emotional distress (IIED) against the United States.

Harold Bibeau, a former prisoner of the Oregon Department of Corrections (ODOC) participated in government funded research experiments which exposed his testes to high levels of radiation while incarcerated from 1963-1969. These experiments, known as the Heller Experiments,' were designed to produce information regarding the effects of radiation on the male reproductive system. For voluntarily participating in the Heller Experiments, Bibeau was paid $5 per month for agreeing to radiation exposure, $10 per biopsy, and $100 for undergoing a vasectomy.

Bibeau and his wife brought suit against the United States and researchers, alleging conspiracy to fraudulently induce his participation in the experiments, fraud, battery, breach of fiduciary duty, strict liability for ultra-hazardous activity and the intentional infliction of emotional distress. The action was certified as a class action.

A federal court in Oregon granted summary judgment to the Defendants, see: Bibeau v. Pacific Northwest Research ...

Uprising by Vermont Prisoners Damages CCA Prison in Kentucky

by Matthew T. Clarke


On September 14, 2004, a prisoner uprising rocked the 816-bed, 88-acre Lee Adjustment Center (LAC), a private prison owned and operated by Corrections Corporation of America (CCA) in Lee County, Kentucky.


The Prison


LAC was built in 1990 as a 400-bed, minimum-security prison by a private company under contract with the Kentucky Department of Corrections (KDOC). In 1999 CCA bought the prison and converted it into an 816-bed medium security prison used to house both KDOC and out-of-state prisoners. Apparently CCA cut costs during the conversion because during the uprising prisoners were able to move freely about the prison by pulling up the interior fences. At the time of the rebellion, it held 376 Kentucky DOC prisoners and 427 prisoners from the Vermont Department of Corrections (VDOC). Kentucky pays CCA $38.44 per prisoner per day while Vermont paid $42.50 per prisoner per day under a 29-month contract involving up to 700 prisoners and up to $29.5 million.


The Uprising


The rebellion began when nine prisoners, five from Kentucky and four from Vermont, attacked a round wooden guard tower in the center of the recreation yard after about 150 prisoners were let out on ...

Destruction of Exculpatory Disciplinary Evidence May Violate Due Process Clause

The U.S. Court of Appeals for the Second Circuit has affirmed the U.S. District Court for the Southern District of New York's order denying prison officials' motion for summary judgment on qualified immunity grounds in a prison discipline case.

In 2003 Anthony Palmer was incarcerated at New York's Sing Sing Correctional Facility, where, he was involved in an altercation with a guard named Ronald Goss. Goss charged Palmer with several rule infractions, including violent conduct. Deputy Superintendent Paul Richards presided over Palmer's disciplinary hearing. Palmer was convicted and sanctioned 90 days solitary confinement, loss of commissary and telephone privileges, and expulsion from the Family Reunion Program (FRP), in which prisoners are allowed extended visits with their wives and children in a trailer on the prison grounds. Palmer was also transferred to another prison where he served 77 days in a Special Housing Unit (SHU).
During Palmer's appeal of Richards' decision, Palmer discovered that a segment of the tape recorded hearing had been erased. On that portion of the tape a guard named Wyllie provided testimony that would have exonerated Palmer in the disciplinary proceeding. Palmer contended that Richards erased the tape to undermine his ...

New York Jail's Strip Search Policy Permanently Enjoined

A federal court in New York held that the Orange County Correctional Facility's (OCCF) strip search policy violated the Fourth Amendment by authorizing strip searches without individualized reasonable suspicion that a detainee possessed contraband. The court found that the balance of hardships tipped in favor of plaintiffs and warranted the issuance of a permanent injunction against the policy's unconstitutional aspects.

In January 2002, a class of pre-trial detainees charged with misdemeanors and admitted to OCCF from January 1, 1999 forward, brought suit alleging that they were subjected to strip searches upon admission to OCCF which violated the Fourth Amendment. See: Dodge v. County of Orange, 280 FRD 79 (S.D.N.Y. 2002). In October 2002, a group of pretrial detainees charged with felonies and admitted to OCCF from January 1, 1999, forward, filed suit alleging that they were strip searched in violation of the Fourth Amendment. See: Rango v. County of Orange, Case No. 02Civ-8451 (S.D.N.Y. 2002). Subsequently, the cases were consolidated for a single trial on plaintiffs' requests for permanent injunctive relief in both cases.

Prior to August 2001, OCCF employed a blanket strip search policy whereby every new arrival at OCCF was ...

Oregon Ban On Sexually Explicit Mail, Fantasy Games Upheld, State Law Claims Remanded

The Ninth Circuit federal Court of Appeals held that Oregon prison officials did not violate a prisoner's rights to freedom of speech and due process by refusing to deliver publications purportedly containing sexually explicit and role-playing or similar fantasy games or materials. The court also upheld a grant of qualified immunity for the censorship of a comic book mailed via standard rate mail, aka bulk mail." However, the court ordered the district court to address the prisoner's supplemental state constitutional claims.

Oregon prisoner Afshin Bahrampour subscribed to the Green Lantern comic book, and purchased issues of Muscle Elegance magazine and White Dwarf magazine." Prison officials refused to deliver the Green Lantern comic book because prison regulations prohibited the receipt of bulk mail." Once the bulk mail regulation was declared unconstitutional in Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001), prison officials purchased a subscription to Green Lantern comic book for Bahrampour.

Prison officials rejected issue number eight of Muscle Elegance magazine due to sexual context." The basis of the rejection was [a]dvertisements - portrayal of actual or simulated sexual acts or behaviors[.]" Prison officials also rejected three issues of White Dwarf magazine because of their role-playing ...

Washington Community Custody Sanctions Upheld

The Washington State Court of Appeals for Division 2 has affirmed a trial court's imposition of sanctions for community custody violations, for which the State Department of Corrections (DOC) had previously sanctioned Michael David Collins.

In January 2002, Collins was convicted of assault with sexual motivation and failure to register as a sex offender. He was sentenced to one year in jail and community custody to be served concurrently. In November 2003, Collins was again arrested for failure to register as a sex offender and other charges. The DOC found the new charges to amount to a violation of the terms of his community custody and imposed a sanction of 180-days incarceration.

In January 2003, the DOC found Collins to have committed new community custody violations. This time the trial court modified Collins' judgments and sentences to require Collins to serve 150-days for the new violations. Collins appealed, contending that double jeopardy barred his again being jailed for violations of his community custody on the first two convictions.

On appeal, Division 2 found that RCW 9.94A.737 authorized the modification of Collins' first two sentences for violations of community custody. Division 2 also found that the more recent ...

Delaware Prisoner Killed In Hostage Standoff, Counselor Raped

By Michael Rigby


On July 12, 2004, Scott A. Miller, a Delaware prisoner serving a 699-year sentence for rape, assault and kidnapping, was shot to death by a prison guard at the Delaware Correctional Center. The shooting ended a 6 ½ hour standoff in which Miller had taken 27-year-old counselor Cassandra Arnold hostage in her office. Though the Department denies it, poor security and inadequate staffing likely contributed to the standoff.

The episode began shortly after 10 a.m. as Miller, 45, was leaving a counseling session in the prison's medium-high security unit, according to Delaware Department of Correction (DOC) Commissioner Stan Taylor. Supposedly, Miller requested additional counseling and passed through two security doors with or a few steps behind Arnold. As they neared her office, said Taylor, Miller grabbed Arnold and put an 8-inch nail-like shank to her throat. No guards were present. Miller then dragged Arnold into her office, turned off the lights, covered the windows with paper, and pushed all the furniture against the door, said Taylor. Miller then raped Arnold and threatened to kill her.

Armed guards quickly took up positions in the ceiling while negotiators talked to Miller. When Miller quit talking, the guards ...

Summary Judgment Reversed In Los Angeles Jail Over-Detention Suit

In a suit for damages against Los Angeles County Sheriff Leroy Baca for over detention of jail prisoners court-ordered for release, the Ninth Circuit U.S. Court of Appeals held that summary judgment for Baca was not available where the facts showed a practice of deliberate indifference to the constitutional rights of the affected prisoners.

Rodney Berry was arrested on October 5, 2000 and held for a trial that ended in early February, 2001 with a hung jury. The Superior Court ordered the charges dropped and authorized Berry's release on February 1, 2001 at 11:30 a.m. On February 2, at 2:02 p.m., Berry was released 26 ½ hours after the court's order and 16 ½ hours after his release order was entered into the computerized Automated Justice Information System. Two other prisoners, Anthony Hart and Roger Mortimer, had similar court-ordered releases from the Los Angeles County Jail but were delayed for over 29 hours each. All three sued Baca in U.S. District Court (C.D. Cal.) under 42 U.S.C. § 1983 for violation of their civil rights.

The district court granted summary judgment to Baca, relying on Brass v. County of Los ...

Harsh Pre-trial Conditions of Confinement Justify Reduced Federal Sentence

Harsh Pre-trial Conditions of Confinement
Justify Reduced Federal Sentence

by Matthew T. Clarke


A New York federal court has held that harsh pre-trial conditions of confinement justify a downward departure in the Federal Sentencing Guidelines. Jubelequis Mateo, a New York federal prisoner, filed a motion for downward departure under the sentencing guidelines, alleging she was a minor participant in the drug conspiracy and that harsh pre-trial conditions of confinement and family hardship justified downward departure.

Mateo, who was having financial problems after having become pregnant following a rape, met a drug dealer. The dealer set her up as a cushion between him and his potential customers. Mateo was arrested for providing heroin samples on behalf of the dealer in an attempt to broker drug deals involving two kilograms of heroin with people who called her.

Mateo was pregnant when incarcerated in MDC Brooklyn. She was examined by MDC medical staff who set her due date at November 25, 2002. On October 30, 2002, she complained of contractions and was examined by medical staff who found no signs of labor. On November 5, 2002, she awoke at around 3:00 a.m. with labor pains. Other prisoners notified the guard, who ...

Fourth Circuit Reinstates Federal Prisoner's FTCA Claim

In an unpublished decision involving a prisoner's lawsuit under the Federal Tort Claims Act (FTCA), the U.S. Fourth Circuit Court of Appeals held that genuine issues of material fact precluded summary judgment of the prisoner's claim.

Dwayne Manning, a federal prisoner, alleged that during a search of his prison cell, guards confiscated and failed to return a photo album. Manning also alleged that after completing the search, the guards failed to lock his storage box which resulted in the loss of various items. Manning responded by filing a pro se complaint against the Department of Justice, the Bureau of Prisons, and the warden (collectively defendants) under the FTCA, 28 U.S.C.S. §§ 1346(b) et seq. The FTCA permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred.'

The U.S. District Court for the District of Maryland granted summary judgment to the Defendants, reasoning that Manning's photo album had been returned and that he had failed to prove that the other items had been taken or establish their value. Manning appealed.

The Fourth ...

Pennsylvania Statute Banning Sex Between Staff and Prisoners Upheld

In a unanimous decision, the Pennsylvania Supreme Court reversed a trial court ruling that had found a Pennsylvania statute prohibiting sex between prisoners and prison staff unconstitutional. The court remanded the case to the lower court for trial.

Eileen Mayfield was a guard at the Montgomery County Correctional Facility (MCCF) when she allegedly engaged in sexual acts with three inmates, including performing oral sex on an inmate, rubbing her buttocks on an inmate's groin area, and grabbing an inmate's buttocks." She was charged with three counts of institutional sexual assault," as defined by 18 Pa.C.S. § 3124.2. She moved to quash the bills of information and have the charges dismissed. The trial court granted the motion after finding § 3124.2 unconstitutionally vague, overbroad, and violative of due process for lacking an express mens rea requirement.

The trial court opinion infuriated Montgomery County District Attorney Bruce Castor, who appealed the decision to the Supreme Court. You can't have the prison guards having sex with the inmates," Carter said. Consent can't be an issue, or you'd have sex in all the prisons all over Pennsylvania." Other District Attorneys often teased Castor about Montgomery County's ...

$78,435 in Attorney Fees for Successful Challenge to Pennsylvania's Megan's Law

by Matthew T. Clarke


A federal court in Pennsylvania has awarded the plaintiff's attorneys $78,435 in attorney fees and costs in an action that challenged the application of the community notification provision-of Pennsylvania's Registration of Sex Offenders Act (Megan's Law), 42 Pa. Cons. Stat. § 9791-9799.6 ...

PHS and Florida Sheriff Fight Over Liability in Jail Beating Death Suit

Florida's Second District Court of Appeals has reversed the grant of summary judgment to the Florida Association of Counties Trust (FACT) and the Sheriff of Polk County in a lawsuit seeking indemnification by Prison Health Services (PHS).

On April 17, 1994, while a prisoner at Florida's Polk County ...

Mailbox Rule Applies to Texas Prisoners Civil Filings

The Texas Supreme Court has held that the mailbox rule applies to civil litigation filed by Texas prisoners in Texas state courts, overruling at least two previous court of appeals decisions.

Charles Clay Warner, Jr., a Texas state prisoner, brought suit against a prison employee in Texas state district court. Warner had to file the suit within 31-days following the decision in the second step of the prison system's grievance procedure or risk dismissal due to the statute of limitations for prisoner litigation, Texas Civil Practices and Remedies Code, § 14.005(b). He turned over the suit to prison officials, properly addressed and with sufficient postage, on the 30th day after the step two grievance was decided. Not shown in the record is the postmark date or the date the clerk actually received the suit; however, the clerk filed the suit seven days after Warner turned it over to the prison officials. The district court dismissed the suit as being filed after the 31-day limitations period had run out. Warner appealed. The court of appeals affirmed the dismissal. 96 S.W.3d 640. Warner petitioned the Texas Supreme Court for a writ of error.

The Texas Supreme Court reasoned ...

Civil Punitive Damages On Top Of Criminal Punishment Is Not Double Punishment

Civil Punitive Damages On Top Of Criminal Punishment
Is Not Double Punishment

by John E. Dannenberg


The California Court of Appeals held that a drunk driver convicted of vehicular manslaughter was not constitutionally immune from the second punishment of punitive damages obtained in a subsequent civil suit by the decedent's family.

Deborah Gurnett, while driving under the influence, struck and killed James Shore, an American Airlines pilot, while he was riding his bicycle in a designated lane. She was convicted of gross vehicular manslaughter while intoxicated (California Penal Code § 191.5) and sentenced to ten years in state prison. Shore's wife sued for wrongful death on behalf of herself and their two children. A civil jury awarded them $7.5 million in compensatory damages and $35,000 in punitive damages. The gravamen of Gurnett's appeal was that the $35,000 amounted to a second punishment obtained in violation of the Fifth, Eighth and Fourteenth Amendments of the United States Constitution. The Court of Appeals disagreed.

Under her Fifth Amendment claim, Gurnett argued that some courts had expressly denied such added punitive damages. The court rejected this, noting that the precedent cited was for preventing the government from ...

Arizona Appellate Court Vacates Restitution Order In Escape Case

The Arizona Court of Appeals (COA), Division II, has vacated a trial court's restitution order requiring a state prisoner to reimburse the Arizona Department of Corrections (ADOC) for costs allegedly incurred as the result of a prison escape.

On September 29, 2000, Clayton Guilliams, an ADOC prisoner assigned to a maintenance crew, allegedly helped another prisoner, Steven Hummert, escape by driving him off the prison grounds concealed in an air conditioner box. Hummert was recaptured nearly two months later in Oregon. For his involvement, Guilliams pled guilty to attempted escape and was placed on 3-years' probation. Guilliams was also ordered, over his objection, to pay $47,626.55 to the ADOC in restitution. The restitution order included $25,283.94 for prison operations costs, including salaries, wages, overtime, and incidentals such as gasoline and sack lunches incurred the day of Hummert's escape; $1,455.11 for hotel and airfare costs for an investigator's trip to Oregon; and $20,887.50 to the ADOC's Criminal Investigation Bureau (CIB) for wages paid to personnel investigating the incident from the time of Hummert's escape until several days after his capture.

Through a petition for post-conviction relief, Guilliams challenged ...

Idaho Prisoner States Valid Retaliation Claim Against Parole Commission

Idaho Prisoner States Valid Retaliation
Claim Against Parole Commission


The Idaho Court of Appeals held that material fact issues regarding a prisoner's claim that he was retaliated against because of his litigious activities precluded summary judgment of his lawsuit against the parole commission.

Richard Drennon, a prisoner at the Idaho Maximum Security Institution, was denied parole in July 1999. Drennon subsequently filed a pro se habeas corpus petition alleging that the parole commission violated his constitutional and other rights by: denying him access to the materials used in reaching their decision; not affording him full consideration of the favorable material he presented; basing their decision on false and inaccurate information; and denying his parole in retaliation for his activities as a prison litigator. As to the retaliation claim, Drennon alleged that during his parole hearing the commissioners focused on his legal activities and berated him for filing lawsuits and for helping others to do so. In a memorandum decision, the District Court of the Fourth Judicial District summarily dismissed Drennon's habeas petition and denied his motion for appointment of counsel. Drennon appealed.

The Court of Appeals (COA) affirmed in part, reversed in part, and remanded.

The COA first ...

Lucasville: The Untold Story of a Prison Uprising

By Staughton Lynd; Temple University Press, 2004; soft cover, 244 pages.

$16.95

Reviewed by Karen G. Thimmes



Death Row in Ohio is located at Mansfield Correctional Institution, a stone's throw from the fabled Mansfield Penitentiary, where much of the Shawshank Redemption was filmed. But for four men, conveniently categorized as worst of the worst," Death Row is a tiny cell with a solid steel door and 23-hour-a-day lockdown. They are housed in Ohio's SuperMax prison in Youngstown and, together with George Skatzes (kept at Mansfield for attention to his medical problems), are known as The Lucasville Five.

Ohio has branded them riot leaders" in the Lucasville prison uprising of 1993.
Retired attorney, prisoner advocate and former labor activist Staughton Lynd describes conditions in his book, Lucasville: The Untold Story of a Prison Uprising at Lucasville (actually SOCF, Southern Ohio Correctional Facility), a maximum security facility and one of the most violent prisons in the country, in the late 1980's. It had its factions--the Muslims, the Aryan Brotherhood, the Black Gangster Disciples--but each kept pretty much to itself, and there was little conflict. Men were mostly single celled. [Editor's Note: Lucasville was the prison at issue ...

Missouri Post-Conviction Proceedings Not Encompassed By PLRA Payment Scheme

Missouri Post-Conviction Proceedings Not
Encompassed By PLRA Payment Scheme



The Missouri court of appeals has held that because a Missouri Supreme Court Rule 29.15 motion is not a civil action encompassed by the state's Prison Litigation Reform Act (PLRA), Mo. Rev. Stat. § 506.360 to 506.390 (2000), a Rule 29.15 movant cannot be required to pay costs associated with the proceedings.

After being convicted of forcible rape and having his sentence upheld on appeal, James Roberson filed a pro se Rule 29.15 motion in the Circuit Court of Cole County and was granted leave to proceed in forma pauperis. The court appointed counsel to Roberson's case, who filed an amended motion. The court dismissed the amended motion without an evidentiary hearing and assessed costs of $92 against Roberson pursuant to the PLRA. Roberson appealed arguing that the PLRA does not encompass Rule 29.15 as a civil action requiring the payment of costs.

The Missouri Court Of Appeals, Western District, agreed. The appellate court noted that when a prisoner files a motion to proceed as an indigent in a civil action pursuant to § 506.366, § 506.369 provides a mechanism for the court to ...

Massachusetts Court Imposes Time Limits For Unrepresented Criminal Defendants

The Supreme Judicial Court of Massachusetts held that if an attorney is unavailable to represent an indigent criminal defendant, the defendant must be released within 7 days and the case against that defendant dismissed within 45 days.

This consolidated case arose from separate actions brought by the Committee for Public Counsel Services (CPCS) and the American Civil Liberties Union of Massachusetts (ACLU) on behalf of indigent criminal defendants who were being detained without representation due to a shortage of attorneys in the Hampden County bar advocates program.

The CPCS action, filed on May 6, 2004, involved Nathaniel Lavallee and 18 other indigent criminal defendants who were being held in lieu of bail or under preventive detention by orders of judges in the Springfield District Court. CPCS claimed that its public counsel division was unable to provide the defendants with representation due to under-funding and staffing limitations. The ACLU pursued its action on behalf of five similarly situated defendants being held by order of judges in the Holyoke District Court.

The CPCS and the ACLU both filed petitions in the Supreme Judicial Court one day after the respective district courts (Springfield and Holyoke) denied their motions to compensate assigned counsel at ...

News in Brief:

Alaska: On February 5, 2005, Alaska attorney general Gregg Renkes (R)resigned after it came to light that while promoting a trade deal with a Taiwanese energy company he held some $100,000 worth of stock in the company and had served as its lobbyist and adviser before becoming attorney general.

Argentina: Some 2,000 prisoners rebelled on February 10, 2005, in the maximum-security San Martin prison in Cordoba, taking 24 guards and the prison director hostage. The revolt apparently erupted after a prison guard pushed the wife of a prisoner. On February 11, some 1,000 police and National Guard troops arrived and surrounded the prison as concerned family members gathered outside. When the conflict ended with the prisoners' surrender later that day, five prisoners, two guards and a police agent had been killed and dozens of people were wounded. The prison was built a century ago for 900 prisoners; relatives say the prisoners are treated like animals.

California: On December 30, 2004, the California Youth Authority (CYA) suspended all work and public service crews after two of its prisoners, Thao Lor, 22, and Yatau Her, 21, escaped from the Cal Expo, annual state fair site, where they were ...

Washington Absconding Does Not Toll LFO Collection Statue

The Washington State Court of Appeals for Division 1 has held that RCW 9.94A.753 affords the state 10 years from a prisoner’s release from total confinement in which to collect Legal Financial Obligations (LFOs) from prisoners. The court also held that a probationer’s absconding does not toll that period of time.

Gordon Adams was convicted of possession of stolen property and forgery 1988, and was convicted of similar charges in 1990. Both cases were in Washington courts, and both ordered Adams to pay court costs. Adams paid neither debt.

Pursuant to the 1990 conviction Adams was sentenced to prison, where he was released to Oregon authorities in 1993. He did a short stint in an Oregon prison and was again released in 1994. In 1995 Adams absconded without paying his LFOs. He was jailed on new charges in Spokane, Washington in 2002, and the DOC attempted to collect the old LFO debt, but the trial court refused to so order, asserting that the time for collecting those debts had run. The DOC appealed.

On appeal the court recognized that LFO debt collection was governed by RCW 9.94A.753, which allows the state to collect LFOs ...

 

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