High-powered tasers are the new fad in law enforcement. They are becoming ever more prevalent even as their safety is increasingly in question. The proliferation of tasers in police departments across the country has led to unconventional uses. Among those hit by tasers are elderly people, children as young as one year old, people apparently suffering diabetic shock and epileptic seizures, people already bound in restraints, prisoners and hospital mental patients. Police used tasers against protesters at the 2003 Miami Free Trade Area of the Americas demonstration and against rowdy fans at the 2005 Fiesta Bowl. School systems are employing the weapons, with some officers carrying tasers even in elementary schools.
But doctors, reporters, and human rights groups have raised questions about the safety of the devices, which shoot two barbs designed to pierce the skin. The barbs are at the end of electrical wires carrying 50,000 volts. Last summer, The New York Times reported that at least fifty people had died within a short time after being hit with a taser. By April 1, 2005, when Amnesty International released its own report, that number had risen to more than 101. An earlier Amnesty report ...
by Anne Marie Cusac
On December 13, 2001, 14-year-old Melissa Bittler was found raped and ...
On July 15, 2004, the Multnomah County, Oregon, Board of Commissions voted unanimously to pay $150,000 to settle a wrongful death action filed by the family of a teenage girl who was raped and murdered by a parolee.
A $436,484 shortage in the Colorado Department of Corrections's pharmacy budget in 2003 prompted an internal audit. The audit found that close to a half-million dollars worth of drugs have been lost by the prison system.
The DOC Pharmacy dispenses $8 million in drugs to nearly 20,000 prisoners annually. The audit found large errors in inventory records for many drugs, including expensive anti-psychotic medications. 20 of 22 drugs audited showed inventory discrepancies with some showing amounts above stock levels while others showed amounts below stock levels. The shortfalls for Zyprexa and Risperdal, two anti-psychotic drugs, totaled 35,000 doses valued at $195,419.
Prison officials believe that sloppy bookkeeping and an outdated inventory system are at fault.
We have no allegations of Schedule I or Schedule II narcotics, psychotropics, things like that are being diverted. There's no evidence of that," according to Mike Rulo, DOC Inspector General. But with no adequate means of record keeping, who knows.
Barry Pardus, DOC Director of Clinical Services, also ruled out fraud or theft stating that: the problem was nothing that sensational.
To the contrary, inappropriate blister packaging, combined with arcane regulations may be partially to ...
by Matthew T. Clarke
The Florida Department of Juvenile Justice (DJJ) will pay $1.45 million to settle a federal lawsuit arising from the 2003 death of Omar Paisley at the Miami-Dade Regional Juvenile Detention Center, the Miami Herald reported on November 2, 2004. A separate settlement was reached with Miami Children's Hospital ...
On November 22, 1998, Robert Hicks experienced pain in the area of his left waist. He said he laid on his bed, went to the restroom, and then returned ...
A New York Court of Claims has awarded a former Collins Correctional Facility prisoner $160,000 in a medical malpractice suit.
I would like to thank everyone who has written, called or e mailed us with favorable comments about last month's 15th anniversary issue of PLN. It was quite the milestone and one which we are very proud of. We hope the next decade of publishing allows us to both expand the size and further improve the quality of PLN. This issue of PLN also includes comments from supporters about PLN that should have been in the anniversary issue but which were inadvertently excluded. But, better late than never.
Many readers have commented that they liked the 56 pages of the anniversary issue. We were able to run 56 pages thanks to the additional ads in the issue. We remain committed to maintaining a ratio of 25% ads to 75% editorial content. As our advertising content increases, so too will our overall size so we can bring readers more news and information.
Advocacy and outreach on prisoner rights issues remain another important part of the work we do at PLN. At least once a month I give presentations on prisoner rights issues and abuse within American prisons and jails around the country. In March I spoke at ...
by Paul Wright
In the months following its 1999 opening, the Michigan Youth Correctional Facility (MYCF) was criticized over assaults, staff turnover, and suicide attempts. Now critics contend that MYCF, coarsely referred to as the punk prison," is gouging taxpayers for high security costs when the majority of its young prisoners could be housed more cheaply in lower security prisons. MYCF is operated by the Geo Group Inc., formerly known as Wackenhut Corrections Corporation [see PLN, June 2004, pg. 16].
Approved in 1996 during the height of the get tough on crime" craze, MYCF was part of a juvenile justice reform package that promised adult time for adult crime." The prison comes complete with two adult-sized gun towers and an armed perimeter patrol.
But when the hordes of young superpredators" propagandized in the 1990s never materialized, says Elizabeth Arnovits, executive director of the Michigan Council on Crime and Delinquency, the state simply decided to fill the prison with other kids. The numbers bear this out. In late March 2004, two-thirds of the prisoners were low security (levels 1 and ...
Five years after beginning its first flirtation with for-profit prisons, Michigan is learning an invaluable lesson: Despite the hype, private prisons are not cost-effective.
Stay and Abeyance
Stay and abeyance" is the legal name for what happens when the federal court holds onto (stays and abets) a federal habeas petition while the petitioner goes back to state court to exhaust one or more unexhausted claims that were included in the petition. In this column we will look at this important means for timely exhausting habeas corpus claims, and I'll give you some Habeas Hints" for how to most effectively employ stay and abeyance in the wake of the U.S. Supreme Court's recent decision in Rhines v. Weber, 124 S.Ct. 1528 (2005).
A mixed" habeas petition is one which contains at least one exhausted claim and one or more unexhausted claims. A federal court has no power to hear a mixed petition, and must either (1) dismiss the entire petition without prejudice (meaning you can file again in federal court without running ...
This column is intended to provide habeas hints" to prisoners who are handling habeas corpus petitions as their own attorneys (in pro per). The focus of the column is post-conviction practice under the AEDPA, the 1996 law which now governs habeas corpus practice throughout the U.S.
Director, Institutions Project
Columbia Legal Services
Prison Legal News is the one publication that I read cover-to-cover every issue. In these days of struggle, when prisoners have so few resources to support and sustain their legal work, Prison Legal News remains a beacon of hope in a dark and forbidding judicial landscape.
National Prison Project
The celebration of PLN's 15th Anniversary is a truly momentous occasion. Not only does this birthday remind us of the bold passion, the unsparing dedication, and the certain perseverance of PLN's staff, it is a tribute to the presence that PLN has carved into the lexicon of freedom and justice in America.
Prisons are better places today because of the tireless work of PLN. Prison guards and administrators are beginning to understand that there is a voice ...
As a civil rights litigator specializing in prison cases, I have read virtually every issue of PLN since its first newsletter was published 15 years ago. This publication is an essential resource for everyone concerned about human rights. Congratulations to PLN for reaching this great milestone. We all look forward to your next 180 issues.
Sean Tapp was a prisoner at Attica Correctional Facility on January 28, 2000, when he was seen by ...
On February 5, 2004, a New York Court of claims awarded a prisoner $1,000 for the negligence of an oral surgeon under contract with the New York Department of Correction (NYDOC).
by Marvin Mentor
A well-intentioned but struggling new rehabilitative in-cell, tutored, self study program for California parole violators (Bridging Program), participation in which cuts five days per month off eligible violators' return-to-custody time, is having the anomalous effect of increasing the state's recidivism" statistics. The paradox is that as fast as the California Department of Corrections (CDC) empties parole violators' prison beds with the benefit of their new life-skills schooling, poised prison-guards-union parole agents sweep the streets to refill those beds with technical parole violation recidivists.
As a result, rather than saving $51.5 million in the first year and $71 million in the second, the Bridging Program is costing $14.5 million more so far. If recidivism" in CDC were instead restricted to only new offenses, thereby eliminating the practice of bed-vacancy driven parole violations," California would not suffer its stigmatic 40% recidivist" violator population that exceeds that of 39 other states combined. The deception goes deeper than just a gloss on the term recidivism."
The [Bridging Program] is a front, a fake, a way CDC can say, We are offering education," declared State Senator Gloria Romero, who ...
California's Parole-Violator Cell-Study Education Program Portends Increase In Recidivism
In an extremely limited," unanimous decision, the United States Supreme Court held that an Alabama death row prisoner properly utilized 42 U.S.C. § 1983 to challenge a procedure to be utilized during his execution.
In 1979, David Nelson was convicted of capital murder and sentenced to death. His appeals were finally exhausted in 2003 and the Alabama Supreme Court set Nelson's execution by lethal injection for October 9, 2003.
Due to years of drug abuse, Nelson's veins are severely compromised, making them inaccessible by standard intravenous access techniques. Therefore, prison officials planned to utilize a cut-down" procedure to access Nelson's veins before and during his execution.
Prison officials refused to provide Nelson's attorney with a copy of the State's written protocol for gaining venous access prior to execution. However, they assured her that medical personnel' will be present during execution and the prison physician would evaluate and speak with" Nelson before the execution.
On September 10, 2003, Nelson was told prison personnel would cut a 0.5 - inch incision in [his] arm and catheterize a vein 24 hours before the scheduled execution." However ...
U.S. Supreme Court Holds § 1983 Proper to Challenge Execution Procedure
Article VI, § three of the Washington Constitution prohibits all persons convicted of infamous crimes' from voting until they have their civil rights restored." Under R.C.W. 29A.04.079 all felonies are considered infamous crimes.'
A person convicted of a felony under the Washington Sentencing Reform Act of 1981 may restore their civil rights, including the right to vote, only after completing all the requirements of the sentence, including any and all legal financial obligations.' RCW 9.94A.637.
Washington has a long and ever-growing list of LFO's, including but not limited to: $500 victim penalty assessment fee; domestic violence penalties; restitution orders (which cannot be reduced or waived due to indigency); County and interlocal drug fund penalties; trial costs, including fees for court-appointed counsel, defense costs and jury fees; incarceration costs; community supervision costs; and costs of adding defendants' DNA to a law enforcement database.
One or more of these and many ...
On October 21, 2004, the American Civil Liberties Union (ACLU) of Washington brought suit in state court, challenging a law which prohibits Washington ex-felons from voting solely because they owe legal financial obligations" (LFOs) such as court filing fees and costs, restitution and incarceration costs.
A byzantine disenfranchisement scheme has cast a pall over the electoral process in Washington.
On November 2, 2004, Democrat Christine Gregoire won the state's gubernatorial race by the narrowest margin in state history--129 votes. Republican challenger Dino Rossi's camp quickly cried foul and sued to have the election results nullified. Their claim: voter fraud.
At the center of controversy is a list produced by Rossi containing the names of 1,135 alleged felons who supposedly voted. The list was hotly contested in Chelan County Superior Court. Rossi's lawsuit was later dimissed. But it has already caused an uproar.
Democrats claim the list is riddled with errors and smears the names of innocent people." Investigations launched by a number of counties after the list was released seem to confirm that assertion. In court documents filed in March 2005, Democrats reported a 75 percent error rate" in the Whatcom County list. Of the 13 people on the list, Whatcom County investigators found that 2 had never been convicted of a felony, 4 had been convicted but had their voting rights restored, and 3 hadn't even voted in the November elections.
Other inaccuracies have also surfaced ...
by Michael Rigby
Prisoners who joined in a hunger strike at the Colorado State Penitentiary from January 15-26, 2005, were hoping their protest would attract a media feeding frenzy -- and put pressure on officials to modify harsh conditions at the state's supermax prison.
Instead, they just got hungry.
The official story of the strike is that it was a complete dud. Participation dropped off quickly, Colorado Department of Corrections officials say, and the protest accomplished nothing, since prison administrators weren't about to negotiate policy matters with a bunch of disgruntled prisoners.
But the protesters say that isn't how it went down. DOC administrators misled the public about the number of prisoners involved, they claim, and went to great lengths to muzzle the effort -- including intercepting prisoner mail, denying medical attention and threatening disciplinary action in an effort to break the strike. And since DOC policy bans media interviews with high-security prisoners, the prisoners had little chance to tell their side of the story.
They lied so blatantly about what was really going on," wrote Troy Anderson, one of the organizers of the strike, in a letter to Westword. They think they are immune to any accountability. If ...
by Alan Prendergast
The incidents started shortly after prisoner Nakia Huggins was questioned by guards concerning a knife that another prisoner told guards Huggins was intending to use to stab him with.
Huggins, who is serving two life sentences for murder, was sentenced to another 30 years, four years ago, for setting his mattress on fire while incarcerated at Everglades Correctional Institution.
Upon being confronted, Huggins assaulted one guard and began running when four guards isolated him between two fences. Seeing that running further was no longer an option, Huggins turned his aggression on the guards. Taking the knife in hand, he began frantically waving it at the guards. Close proximity, isolation, plus four on one, equaled little success for Huggins.
Huggins was then rushed from behind with one of the guards grabbing him. Huggins, attempting to wrestle lose, consequently stabbed the guard.
Meanwhile, additional guards were called to the recreation yard to quell the uprising by other prisoners. Once the guards reached the recreation field, some 200 prisoners begun attacking the guards ...
A riot at Florida's Apalachee Correctional Institution (ACI) resulted in one guard being stabbed and eleven others beaten. As a result, over 100 prisoners were transferred to other prisons.
The Los Angeles, California County Sheriff's Department sought $95,000 authority from the L.A. County Claims Board (Board) to settle a wrongful incarceration federal civil rights lawsuit brought by a plaintiff whose conviction had been predicated upon an admittedly false detective report, even though the detective was subsequently acquitted of criminal proceedings brought against him for that falsification of records, perjury and false imprisonment.
On June 26, 2001, Sheriff's deputies executed two narcotics search warrants in the city of Compton. Reyes Cardenas was at one location. One deputy (Detective) reported seeing Cardenas throw a bag of narcotics onto the neighboring roof. Notebooks recovered at both locations revealed apparent drug courier lists, including Cardenas' name. The Detective arrested Cardenas for possession and sale of cocaine, to which he pled no contest and was sentenced to four years. However, Cardenas always denied that it was he who threw the bag of drugs.
When an investigation ensued into allegations that an unknown suspect had stolen money during service of the warrants, it turned up that a Sheriff's Deputy at the scene stated she saw the Detective's informant, not Cardenas, throw the drugs information not ...
by John E. Dannenberg
Juan Chavarria, a Texas state prisoner at the Eastham Unit, filed suit under 42 U.S.C. § 1983, alleging constant illumination in his segregation cell for sixteen months had caused chronic sleep deprivation in violation of the Eighth Amendment prohibition against cruel and unusual punishment. Chavarria alleged that, in response to a hunger strike protest against the lighting, Major Richard Alford claimed constant illumination was necessary for security reasons. Alford also denied a request to dim the lighting except when a guard was actually looking into a cell, stating that such a practice would be even more disruptive of sleep. Without serving defendants, the magistrate judge held a Spears v. McCotter, 766 F.2d 179 (5th Cir. 1999) hearing. Therein Michael Unit Warden Jason Heaton testified that the lights were dimmed except when presently used by a guard at his unit, the exact practice Chavarria sought to have implemented at the Eastham Unit. None of the defendants testified at the hearing. The magistrate ...
The Fifth Circuit court of appeals, in an unpublished opinion, held that alleging sleep deprivation caused by constant illumination was not a claim with an arguable basis in law for which a prisoner may be granted relief.
An amendment to the 2001 Texas law allowing compensation of the wrongly convicted requires that people applying for compensation present a letter from the district attorney who convicted them certifying the person's innocence.
In 2001, State Senator Rodney Ellis, D-Houston, introduced a bill to allow people who were wrongfully convicted in Texas to receive $25,000 per year of incarceration up to $500,000. The compensation was conditioned on the person being able to document having served all or part of a sentence and having received a pardon based on innocence or relief from a court based on innocence. The new provision was added without Ellis's knowledge or approval.
Someone has slipped into state law in the dark of night a provision that says--even if you have a pardon--you have to have a letter from the district attorney saying you are actually innocent," said Ellis. It's ridiculous.
The ridiculous" amendment was included in the voluminous fiscal matters bill, a routine bill passed every legislative session.
Jesse Ancrica, Associate Deputy Comptroller, said the amendment resulted from a discussion about moving the responsibility for determining who should receive compensation from the Comptroller to a more ...
by Matthew T. Clarke
by John E. Dannenberg
A convicted swindler whose direct appeal of his federal conviction was denied, but whose subsequent habeas corpus petition was granted, was not entitled to reimbursement of $77,507 in court-ordered victim restitution payments made after his direct appeals became final. The court ruled that he was only entitled to the return of $850 in court costs paid to the U.S. Government.
H. Wayne Hayes ran a Ponzi [pyramid] scheme between 1984 and 1986 wherein he collected $1,187,800 that he supposedly invested in oil exploration and development. In a 1993 jury trial for fraud, it came out that he put $981,000 of the funds instead into his personal account, of which $644,000 was traced to his purchases of a home in Florida, a Rolls-Royce and expensive jewelry. His oil exploration" venture produced only $10,554 in revenue.
Hayes, who represented himself at trial, was sentenced to 20 years in the Bureau of Prisons (BOP) and ordered to pay $424,705 in restitution plus $850 in court costs. Thereafter, he unsuccessfully appealed his conviction through the ...
Restitution Payments By Federal Defendant Whose Direct Appeal Was Final Held Not Reimbursable Upon Later Collateral Relief
A federal district court in New York has held that Correctional Services Corporation (CSC) may be liable for retaining an employee at a CSC-run halfway house after his sexual abuse of female prisoners was reported to another CSC employee.
Yvette Adorno and Stephanie Womble, federal prisoners formerly confined at Le Marquis Community Correctional Center, a New York city halfway house for state and federal prisoners, filed suit against CSC in New York federal court, alleging CSC employee Miguel Correa sexually abused them at Le Marquis. Correa's job was Resident Advocate. He was responsible for protecting prisoners' rights in disciplinary actions.
On the evening of November 13, 1998, Correa allegedly picked up Adorno's shirt, touched her breasts, made various inappropriate sexual comments ..., kissed her and pushed his body up against her," only allowing her to leave his second-floor private office after she threatened to scream and promised not to report the incident." Adorno did not report the incident to any federal Bureau of Prisons (BOP) or CSC official because of threats by Facility Administrator Josette Nelson-Dabo to send prisoners who complained about conditions at Le Marquis back to prison. Adorno told another prisoner about the ...
by Matthew T.Clarke
An Ohio prisoner should be awarded $1,402.92 for 11 days of false imprisonment, a magistrate recommended to the Ohio Court of Claims on October 21, 2004.
On September 14, 1999, plaintiff Glen Wilson was sentenced to two years in prison and up to 3 years ...
by Michael Rigby
By Bob Williams
The United States Court of Appeals for the Sixth Circuit has ruled that Ohio state prisoners have a liberty interest under the Sandin atypical & significant hardship" analysis in placement in the state Supermax. The Court, however, reversed the district court's specific modifications of substantive Ohio prison regulat-ions as beyond the power of the federal court.
On January 1, 2001, Charles Austin and 28 other prisoners filed a class action 42 U.S.C. § 1983 suit against Reginald Wilkinson, director of the Ohio Department of Rehabilitation and Correction (ODRC) and 10 other defendants concerning conditions of confinement at the Ohio State Penitentiary (OSP) supermax. The prisoners' claims included Eighth Amendment violations in the areas of inadequate medical and psychiatric care, inadequate outdoor recreation facilities, and harsh restraints, including the use of black box" wrist restraints during non-contact visitation. The Fourteenth Amendment claim concerned due process in the selection and retention of prisoners at OSP under ODRC policy 111-07.
The prisoner class was certified and a bench trial was held in January 2002. The prisoners' Eighth Amendment claims were settled before trial. See: Austin v. Wilkinson, No. 4:0l-CV-71 (N.D. Ohio Apr. 5, 2001) (order approving settlement agreement). After hearing class objections, the final stipulated settlement provided for injunctive relief prohibiting placing certain mentally ill and chronically ill prisoners at OSP. The ODRC must also construct outdoor recreation facilities and eliminate the use of black box" restraints during visitation. The injunction is in effect for two years with an award of $150,000 in attorney fees and $10,000 per year in monitoring fees.
On the eve of trial, the ODRC issued a new 111-07 policy which became the focus of trial. On February 25, 2002, the district court issued its post-trial findings and conclusions finding the new 111-07 lacking in that prisoners do not receive notice of all the evidence relied upon in their classification hearings; they are not allowed to call witnesses; placement criteria gives insufficient notice of the amount of drug possession sufficient to trigger OSP placement; the criteria is unnecessarily vague regarding gang activity that would trigger OSP placement; as final decision maker, the Bureau of Classification was not required to describe the facts and reasoning used in its decision; lack of adequate notice before reclassification hearings; and a lack of notice of what conduct is necessary in order to qualify to leave OSP. See: Austin v. Wilkinson, 189 F.Supp.2d 719 (N.D. Ohio 2002). [For more on the conditions at OSP and the district court's ruling see: PLN, Feb. 2003, P.6.]
On March 26, 2002, the district court issued its injunction for specific relief under 18 U.S.C. § 3626(a)(I)(A) prohibiting further placement of prisoners at OSP until a rewritten and court approved 111-07 was issued. The court ordered specific changes to be made to this policy ...
Ohio Supermax Placement is Atypical & Significant Hardship; Supreme Court Grants Review
James McAlphin, an Arkansas state prisoner, filed suit against prison officials under 42 U.S.C. § 1983, alleging defendants' refusal to provide dental treatment caused him to lose five teeth, two more than would have been extracted had he received prompt treatment, and that two more teeth still needed to be extracted due to the lack of treatment. McAlphin is incarcerated at the Varner SuperMax which is attached to the Varner Unit. His complaint alleges that Warden Rick Toney and Dr. Stanley Ware ignored his requests and had not allowed him to be escorted down the hall to receive treatment at the Varner Unit Infirmary." He also alleged that Toney and Grievance Officer Terri Brown refused to treat his situation as an emergency and had shown deliberate indifference" to his dental treatment needs when McAlphin's gums became infected.
The district court dismissed the suit without serving the defendants because McAlphin was subject to the three-strikes provision of 28 U.S.C. § 1915 ...
The court of appeals for the Eighth Circuit held that a prisoner's allegation of denial of dental treatment cannot be split into three separate sub-claims then dismissed for failure to exhaust state remedies on the sub-claims.
Parolee Aaron Nicholson unknowingly had a Board of Prison Terms warrant issued for his arrest six days before he routinely appeared at the Redwood City, California parole office. When he showed up, several parole agents escorted him to give a urine sample, a ruse for their intent to arrest him. As he went down the hall to comply, the agents told him to get on the wall and that he was under arrest. But when they tried to cuff him, he literally slipped loose due to a Vaseline-like substance on his arms. Less than an hour later, he phoned the parole office threatening to shoot up the agents" and blow up the parole office." Watch your back. It's on...," he warned. The next night, acting on a tip, Highway Patrol officers spotted him at a nearby Palo Alto mall. Nicholson sped off in his car, which he abandoned after a high-speed chase, and fled. Police found a loaded .32 caliber gun and 43 cartridges in the ...
The California Court of Appeal held that a parolee who fled an attempted arrest by his parole agent was a prisoner" nonetheless and that his actions supported his later conviction of felony escape.
On November 8, 2004, the Los Angeles County, California Claims Board granted authority of $32,500 to settle a claim by a prisoner for legal malpractice on the part of the Public Defender, wherein the prisoner had been incompetently advised to accept a felony plea-bargain for ...
by John E. Dannenberg
Thomas Pasco, an Ohio state prisoner, was transferred from the Ohio State Penitentiary (OSP) to the Belmont Correctional Institution on October 29, 2003. However, Pasco claimed that ...
The Ohio Court of Claims awarded $500 to a prisoner who claimed prison personnel lost various items of property when he was transferred.
A federal court in New York awarded a former prisoner $179,900 in attorney's fees and costs, against the prison guard who sexually assaulted her. The court concluded that the fee cap provisions of the Prison Litigation Reform Act (PLRA) did not apply, but reduced the requested fee by ...
The facts of the complaint show that Soyars admitted to prisoners and prison staff that he was infected with AIDS. He often threatened to infect other prisoners with the virus. While cleaning the prison restrooms, Soyars urinated on the floor, spit in the sinks and water fountains, and smeared fecal matter on the floor. After King reported to Unit Manager Lisa McFletcher that he disapproved of the way Soyars cleaned" the bathroom, Soyars and King got into a fight. Soyars spit in King's face. Soyars cut his lip, and his blood came into contact with an open wound on King's hand ...
The Eighth Circuit Court of Appeals has held that prison officials are not entitled to qualified immunity in a civil rights action filed by three prisoners at South Dakota's Mike Durfee State Prison. The prisoners alleged that prison officials failed to protect them from Paul Soyars, an HIV-positive prisoner. Plaintiffs Richard Nei and Alvin King also alleged they were retaliated against for filing the suit and denied access to the prison law library. After the district court denied prison officials motion for summary judgment based upon a qualified immunity defense, prison officials filed an interlocutory appeal.
California Muslims' Prayer Attendance And Religious Beard Injunction Made Permanent; $289,011 Awarded in Fees
by John E. Dannenberg
The U.S. District Court (E.D. Cal.) granted summary judgment and entered a permanent injunction (PI) against the California Department of Corrections (CDC), authorizing Muslim prisoners to leave their job ...
Consider the situation of Moazzam Begg. He is a 35 year old man with dual British and Pakistani citizenship. In early 2002, he was seized from his apartment in Islamabad, Pakistan, by Pakistani and U.S. agents. He was arrested without explanation in the middle of the night, in front of his wife and his two young children and thrown into the trunk of a car. He managed to call his father, Azmet Begg, from his cell phone in the car trunk, and whisper that he had been kidnapped.
According to Azmet, Moazzam had been in Afghanistan doing humanitarian work. He had traveled there with his family planning to open a school, but when he couldn't get a permit from the Taliban government, he began working on a water purification project in a small village. After the US bombardment started, he fled to Pakistan with his family, and that is where he was when he was arrested. In February of 2002, Moazzam was transferred from Pakistani custody to the custody of the U.S. military, and detained at Kandahar air force base, in Afghanistan. He was detained on the base for a year, without access to ...
By Rachel Meeropol
An immigration detainee of seven years, who had unsuccessfully sued his jailer, Corrections Corporation of America (CCA) and its employees for severely beating him during a medical emergency transport, was granted a new trial with appointed counsel. The Ninth Circuit U.S. Court of Appeals held that the complexity of the case should have alerted the district court to grant the detainee's original motion for appointment of counsel, the lack of which reduced his chances of prevailing to virtually nil.
Emmanuel Agyeman, a native of Ghana deemed an illegal alien by the Immigration and Naturalization Service (INS), had been detained" since February 4, 1997. He was found deportable on July 28, 1997, but the ruling was overturned on July 23, 2002, (Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002)) and remanded for a full and fair hearing. Meanwhile, part of his unending federal detention was spent in facilities operated by private contractor CCA, where he claimed he was mistreated.
Agyeman complained that on October 11, 1998, while he was a pre-trial detainee at CCA's Central Arizona Detention Center, he was beaten by shift supervisor Captain Lopez, by Lt. Egber and by a ...
by John E Dannenberg
The Marin County, California Superior Court ruled that a lifer who was twelve years overdue for release when he was finally granted parole, but who was then referred back to the Board of Prison Terms (BPT) by the Governor to have a pre-release rescission hearing, was entitled to immediate release upon having prevailed at the rescission hearing. The court further ordered credit against his parole term retroactive to the date of the rescission hearing.
Edward Lee was convicted of kidnap-for-robbery with use of a gun and sentenced to seven years to life in 1982. On February 26, 2003, the BPT granted parole and fixed his term at 100 months, net of behavior credits. Five months later, then-Governor Davis recommended a rescission hearing. (California Penal Code § 3041.1.) On August 12, 2003, the en banc BPT ordered the hearing, citing seven charges" as to why the grant of parole had been improvident."
Defending himself at the December 17, 2003 rescission hearing, Lee prevailed against all seven charges" and the BPT reaffirmed his parole grant. Per BPT regulation 15 CCR § 2468, he should have been released immediately" but he was not. Then San Quentin State Prison Warden Jeanne ...
by John E. Dannenberg
Eric Martin, a Michigan state prisoner, underwent bladder surgery in April 2002 while imprisoned at the Michigan Correctional Facility (MCF). Martin's treating physician, Dr. Pinson, scheduled Martin for a follow-up visit around May 18, 2002. However, Martin was transferred to the Baraga Maximum Correctional Facility before he could be reexamined.
In December 2002, Martin filed a pro se complaint in the U.S. District Court for the Western District of Michigan seeking his return to MCF for treatment by Dr. Pinson. Martin styled his complaint Petition For Writ of Habeas Corpus" and improperly filed it pursuant to 28 U.S.C. § 2241.
On review, the district court interpreted Martin's petition as a 28 U.S.C. § 2254 habeas corpus action and recharacterized it as such. The court then determined that Martin's claim was more properly addressed under 42 U.S.C. § 1983. After making these two determinations, the district court applied Rule 4 of the Rules Governing § 2254 ...
The U.S. Sixth Circuit Court of Appeals held that a Michigan prisoner's improperly filed medical claim should not have been recharacterized without his consent or an opportunity to withdraw, nor should it have been dismissed with prejudice.
A three year old federal wrongful death lawsuit brought by the family of a Yolo County, California jail detainee who hanged himself was settled for $840,000 on September 1, 2004. Contract health care provider California Forensic Medical Group, Inc. agreed to pay $825,000 of the total, based upon ...
Prison Health Services (PHS) has killed another patient. According to a highly critical 10-page report released by the New York State Commission of Correction on June 23, 2004, the 2001 death of Brian Tetrault, a prisoner in the custody of the Schenectady County Jail, was the result of grossly inadequate and incompetent treatment of his Parkinson's disease. Health care at the jail was provided by PHS, a private, for-profit company based in Tennessee.
Tetrault, a long time sufferer of Parkinson's, was arrested for burglary, larceny, and harassment on November 10, 2001, and placed in the Schenectady County Jail. At the time of his imprisonment, Tetrault, 44, was taking a total of seven drugs to control the psychiatric and physical symptoms associated with the disease. Under the care of the Albany Medical College Parkinson's Disease and Movement Disorders Center (AMCH), the drugs had kept Tetrault alive for a decade.
But when Tetrault arrived at the jail, his medication regimen was drastically altered. Dr. W. Duke DeFresne, a PHS physician, discontinued all but one of Tetrault's medications, and even that was reduced. (Notably, none of the discontinued medications were found in the jail's pharmaceutical ...
by Michael Rigby
In June, 2004, Jonathan L. Cobbs was promoted to the $97,000/yr. Chief Deputy Warden position at the California Correctional Institution in Tehachapi. But this honor seemed incongruous with disparaging court papers filed against Cobb by his employer, the California Department of Corrections (CDC), which accused him of misconduct and for refusing to pay for his defense against two prisoner lawsuits that were eventually dismissed by the federal courts.
Cobb's history goes back to 1995, when he led a group of masked guards on Ninja Day" to storm cell blocks under the guise of a fire drill injuring seven prisoners with alleged excessive force. In 1997, Warden George M. Galaza recommended Cobbs be fired for his role in the raid. Cobbs cut his losses on administrative appeal to a 5% pay cut for six months, when Administrative Law Judge Shawn P. Cloughesy ruled that Cobbs had no reason to believe that using masks was forbidden because CDC had no rules on their use. Cobbs' only error was determined to be failing to file the required use of force" reports.
Cobbs was then ...
Veteran California Prison Official Promoted Despite Checkered Past; Folsom Lieutenant Fired After Being Convicted Of Lying
The South Carolina Supreme Court upheld the decisions of two circuit courts regarding the application of South Carolina's Prevailing Wage statute to prisoners.
South Carolina's prevailing wage statute, S.C. Code Ann. 24-3-40, -410, -430 (Supp. 2002), requires the Department of Corrections (DOC) to pay prisoners in the Prison Industries Program (PIP) the prevailing wage for similar work performed in the private sector. In Adkins v. South Carolina Department of Corrections, 360 S.C. 413; 602 S.E.2d 51 (SC 2004), prisoners at the Tyger River Correctional Institute were employed making Anderson Hardwood Floors." The prisoners began with a training wage of 25 cents to 75 cents per hour, which increased to the minimum wage of $5.15 per hour after 320 hours. (The policy of paying a training wage ended June 1, 1999). The prisoners, represented by Harry Leslie Devoe, Jr., of New Zion, filed action pursuant to the South Carolina Tort Claims Act claiming that their training and hourly wage violated S.C. Code Ann. § 24-3-430(D) because the prevailing wage for similar work was $9.00 to $12.00 per hour.
The Richland County Circuit Court dismissed holding that prisoners have ...
by Michael Rigby
The U.S. Eighth Circuit Court of Appeals reversed a grant of summary judgment by the U.S. District Court for the Southern District of Iowa in a complaint filed by a pretrial detainee alleging that jail personnel were deliberately indifferent to his serious dental needs.
Napoleon Hartsfield was a pretrial detainee in the Scott County Jail in Iowa in 2001. On October 20, 2001, he filed a written request asking to be examined by jail medical staff because of a severe toothache and three loose teeth. Nurse Janice Colburn and Dr. Ludwig examined him, the jail doctor. Hartsfield alleged nothing was done despite his continued complaints of pain. He filed a grievance on November 28, 2001, and was seen by a dentist on December 5, 2001. The dentist pulled three teeth, prescribed antibiotics and ibuprofen, and told Hartsfield the treatment delay had caused a bad mouth infection.
Hartsfield sued Nurse Colburn, Dr. Ludwig, Captain McGregor, Sheriff Conord, and Lt. Brundies under 42 U.S. § 1983, claiming that jail personnel were deliberately indifferent to his serious medical needs and that the jail had a custom or policy of not providing adequate treatment for pretrial detainees to ...
by Robert H. Woodman
On June 2, 1998, Timothy Gamradt, a Bureau of Prisons (BOP) guard, was hurt during a training exercise at the Federal Prison Camp in Duluth, Minnesota. The injury was caused by a smoke grenade which was detonated near him in a stairwell. Gamradt was not issued a gas mask and inhaled the smoke from the grenade. As a result of chemicals in the smoke, Gamradt experienced ongoing coughing, shortness of breath, and a 60% loss in his aerobic capacity.
Defense Technology Corporation of America-Wyoming (DTCA Wyoming) manufactured the grenade and sold it to the BOP without providing any warning about the danger of detonating the grenades indoors. Later, another branch of DTCA acquired DTCA-Wyoming.
Gamradt brought a product liability action against DTCA in the U.S. District Court for the District of Minnesota (district court). The district court found an issue of material fact as to whether DTCA's acquisition of DTCA-Wyoming amounted to a de facto merger between the two companies. If so, DTCA might be liable for DTCA-Wyoming ...
The U.S. Court of Appeals for the 8th Circuit reversed a lower court's grant of summary judgment against a prison guard who was injured by a smoke grenade.
As the trend towards secrecy in the U.S. judiciary continues to grow, so does the constitutional debate over such practices as sealing cases, hiding proceedings, and conducting clandestine searches. Recent decisions by the D.C. and Second Circuits have been favorable, but a lawsuit involving a controversial provision of the Patriot Act--and the super-secret court charged with overseeing it--has yet to be resolved.
In Washington, D.C., the Superior Court's practice of sealing cases led the District's Public Defender Service (PDS) to obtain an appellate court ruling condemning the practice. PDS asked the D.C. Circuit Court of Appeals (COA) to elaborate on the conditions under which cases could be sealed after one of its attorneys, Janet Mitchell, was ejected from a criminal proceeding. Mitchell, who was representing a defendant in a murder case, had planned to attend a hearing in which a co-defendant was expected to plead guilty. The co-defendant had agreed to testify against her client in exchange for leniency. Mitchell sought to evaluate the plea agreement, but prosecutors objected. Alluding to the co-defendant's safety, they asked the judge to order Mitchell out of the courtroom. The judge, citing only his ...
by Michael Rigby
This action was filed by the Administration of the Estate of Ralph Joseph Tortorici, who committed suicide on August 10, 1999, while a prisoner at New York's Sullivan Correctional Facility (SCF). Less than a month earlier, Tortorici had been discharged from the Central New York Psychiatric Center (CNYPC), a maximum security inpatient hospital operated by the New York State Office of Mental Health (OMH) for New York's Department of Corrections (NYDOC) prisoners in need of forensic mental health services.
The lawsuit's main claim is that Tortorici's suicide resulted from DOC's and OMH's failure to create discharge criteria that adequately addressed his need for inpatient psychiatric treatment. The complaint also alleges Tortorici was discharged not because it was medically appropriate to do so, but rather because CNYPC had limited inpatient capacity. It is alleged CNYPC's discharge criteria compelled the discharge of any prisoner who remained hospitalized for a period of one continuous year, despite the patient's ongoing need for inpatient psychiatric treatment." The defendants ...
In two separate rulings, a southern district of New York federal district court has expounded upon the deliberative process privilege, which is a sub-species" of the work product doctrine.
It should be noted that this report pre-dates any effect from the recent Plata v. Schwarzenegger settlement agreement to remedy CDC's constitutionally inadequate health care services statewide. Plata requires implementing more stringent (and expansive, e.g., HCV treatment ) standards for prisoner health care estimated to add hundreds of millions of dollars exposure per year. The report concludes with twelve recommendations to CDC [and reports CDC's invited response] on how better to manage procedures in contracting with outside healthcare facilities. But it does not even address the overriding cost driver: a rapidly aging population of over ...
In a detailed 98 page report to Governor Arnold Schwarzenegger and the California Legislature, the California State Auditor criticized the California Department of Corrections' (CDC) lax management of contract outside-hospital medical services for CDC prisoners. The July 27, 2004 report observed that CDC's costs rose at a rate of 21% per year between 1999 and 2003, versus the national average hospital services consumer price index growth of 8% per year. The growth in in-patient hospital costs was attributed to the need for more expensive services, while the growth in out-patient costs was driven by both more expensive and more numerous hospital visits.
Guaranteeing due process, training, and a centralized review committee for appeals, the Colorado Department of Corrections (CDOC) has settled a 2000 lawsuit brought by publishers and prisoners challenging a system-wide practice of unconstitutional censorship.
The 42 U.S.C. § 1983 suit was originally filed on March 22, 2000, by eight publishers, the Association of Alternative Newsweeklies, and seven Colorado state prisoners. [See: PLN Sep. 2000, p. 25] At issue was the arbitrary, erratic, inconsistent and irrational regime of censorship that repeatedly violated the constitutional rights of publishers as well as prisoners," according to Colorado ACLU legal director Mark Silverstein.
The suit challenged censorship of eight publications of the publisher plaintiffs, 11 additional magazines, and six books including a sign language book intended for a prisoner to use to communicate with a hearing-impaired visitor. This was only a sampling of censored material which also included political commentary from both the left and right; religious periodicals and music magazines; critiques of the criminal justice system; publications that advocated for prisoner's rights" and even a report by the European Parliament or a book criticizing hate groups by the Southern Poverty Law Center.
Publishers have a First Amendment right to ...
by Bob Williams
The Fifth Circuit court of appeals issued an opinion vacating the district court's dismissal of a prisoner's suit alleging prison officials confiscated his property in retaliation for his criticism of the prison.
Billy Fredrick Allen, a Texas state prisoner, filed a civil rights suit under 42 U.S.C. § 1983, alleging major Johnny M. Thomas, and guards Ronnie Major and Robert Dickey confiscated his radio and word processor in retaliation for his having given to the prison's mail room for mailing typed letters to state newspaper editors critical of the prison for holding prisoners beyond their release dates. According to Allen, shortly after the letters were tendered to the mail room, Thomas ordered Major to confiscate his radio and word processor, using the false allegation that they were altered" and therefore violated prison Administrative Directive 03.72. Allen claims they were not altered and the confiscation was in retaliation for the letters.
The defendants filed a motion for summary judgment based upon qualified immunity which District Judge Nancy Atlas granted. Bizarrely, Atlas said Allen's free speech rights had not been violated because only the method by which he may communicate his speech ...
by Matthew T. Clarke
Crimes By Guards
by Matthew T. Clarke
The Cook County Jail in Chicago, Illinois, remains the scene of controversy involving beatings of prisoners, stealing of drugs held for evidence, and guards having sex with female prisoners.
As reported in the February ...
Chicago Jail Still Rife With Prisoner Abuse,
The U.S. Sixth Circuit Court of Appeals has held that when a prisoner's medical malady is so obviously serious that even a layman would easily recognize the need for medical attention, verifying medical evidence" is not required.
Thomas Blackmore was arrested for driving with a suspended liscense in the early morning hours of May 27, 2000, and placed in the Kalamazoo County, Michigan, Jail. Within an hour of his 5:25 a.m. arrival at the jail, Blackmore began experiencing severe abdominal pain and told a jailer that he needed medical attention. When none was forthcoming, Blackmore continued to complain. At around 5:00 p.m. the next day jailers gave Blackmore some antacids but took no other action. Sometime on May 29, 2000, Blackmore submitted a Request for Medical Care" complaining of sharp, severe abdominal pain lasting 26 hours for which he needed medical attention right away." A jail nurse examined Blackmore at 6:30 a.m. that morning--48 hours after he began complaining--and diagnosed him as displaying classic signs of appendicitis." He was transported to the hospital a half-hour later, where doctors performed a successful appendectomy.
Sixth Circuit Clarifies "Verifying Medical Evidence" Requirement Of Napier
By Michael Ratner and Ellen Ray Chelsea Green Publishing Company, 184 pages
Review by Jules Siegel
We have by now all seen much of this material before, but reading it all in one piece, told by human voices in this book-length interview, is not easy to take. Guantánamo: What the World Should Know becomes a heart-stopper once you cross the line and realize that you could be any of these victims.
Michael Ratner, President of the Center for Constitutional Rights, is co-counsel in Rasul v. Bush, the historic case of Guantánamo detainees in which the U.S. Supreme Court held prisoners on the island could access the U.S. courts. His interviewer, Ellen Ray, is President of the Institute for Media Analysis, and a widely published author and editor on U.S. intelligence and international politics.
It's hard to say which is more disgusting, the descriptions of the torture or the bone-chilling analyses of how the president of the United States gave himself the powers of an absolute military dictator. Under Military Order No. 1, which the president issued without congressional authority on November 13, 2001, George W. Bush has ordered people captured ...
Guantánamo: What the World Should Know
And Crime Reduction Act Of 2004
by Michael Rigby
On October 30, 2004, George W. Bush signed into law the Mentally Ill Offender Treatment and Crime Reduction Act of 2004 (Public Law No. 108-414). The Act provides $50 million in grant money to promote various criminal and juvenile justice programs aimed at keeping mentally ill offenders out of jails and prisons.
For mentally ill persons in the U.S., needless imprisonment sometimes becomes a way of life. All too often, people with mental illness rotate repeatedly between the criminal justice system and the streets of our communities, committing a [series] of minor offenses," said former Senator Tom Daschle in a statement attached to the bill. These offenders generally wind up in prisons or jails, where they receive little or no appropriate treatment, he said.
Not surprisingly, a 2003 Human Rights Watch report found that jails and prisons have become the Nation's default mental health system," said Daschle. [See PLN, September 2004, p. 24 for a review of that report.] The report's first recommendation, he said, was that Congress enact this bill.
Daschle went on to say that more than 16% of ...
President Bush Signs Mentally Ill Offender Treatment
California: In February, 2005, police arrested Glen Westberg, 35, in Redwood City, for violating his parole conditions for his child molestation conviction. Westberg used the state's internet registry of sex offenders to contact other child molesters he found attractive and solicit them for sex. Apparently one of the sex offenders reported the advances to police who set Westberg up for a sting. His parole conditions include a ban on contact with convicted felons. Some would say it is better for public safety for child molesters to have sex with each other than with children. Apparently that view is not shared by local police.
California: On February 5, 2005, Anthony Gibson, 34, and Jose Manuel Vera, 24, guards at the Yolo County Monroe Detention Center were arrested on kidnapping, rape of a drugged victim and sexual penetration with a foreign object charges. The men are accused with another person of kidnapping, drugging, and raping a 21 year old woman in Gibson's SUV.
California: On January 31, 2005, two prisoners were seriously stabbed and six others suffered minor injuries in a scuffle between some two dozen prisoners at the Salinas Valley State Prison in Soledad. The incident ...
News in Brief:
Experts have long known that prisons are incubators for disease. Some diseases such as H.I.V. and hepatitis C are by some estimates ten times more common in prison than in the general population [PLN, June 2003, p.10]. Yet the health care of prisoners is typically of little or no concern to the public, many believing that prison health issues don't directly affect anyone but the prisoners. The harsh reality, however, is that prison health issues affect everyone, both inside and outside the walls.
The prevalence of confirmed AIDS cases in prison is three times that of the general population, according to the Bureau of Justice Statistics (BJS). The BJS cites the rate of H.I.V. infection as 1.9%, but that figure is questionable since only 19 states conduct mandatory H.I.V. testing. Most experts believe the rate is much higher. Moreover, in the decades that AIDS has spread, the prison population has also ballooned to more than 2.1 million. Now, with roughly 600,000 prisoners reentering society each year, scientists are beginning to view imprisonment rates and H.I.V. transmission as intertwined epidemics that ...
by Michael Rigby
Under pressure from U.S. District Judge Thelton E. Henderson, who earlier in 2004 threatened wholesale federal court takeover of the California Department of Corrections (CDC), the CDC stipulated to an order aimed at ending the use of untrained, unqualified and/or incompetent doctors, nurses and physician assistants in its $1 billion per year prison health care program. The centerpiece of the September 17, 2004 Order is its requirement for CDC to hire an independent entity" for these purposes within 60 days, thus wresting control of past questionable medical staffing practices from prison bureaucracy. The Order issued under the court's continuing oversight of prison medical care under Plata v. Schwarzenegger, wherein the prisoners are represented by attorneys Steve Fama and Alison Hardy of the San Quentin, California based Prison Law Office.
Designed to weed out incompetent physicians, the expected shake-up could result in 261 prison doctors being stripped of their ability to practice medicine in CDC's prisons until they complete a stringent medical training course. This is a concrete step toward getting rid of those who have been harming patients," Hardy said.
While admittedly, the news of proper health care is rarely reported, the stories of improprieties reverberate ...
In October 2002, 6,100 gallons of diesel fuel were spilled at the McNeil Island Corrections Center. The Department of Ecology (DOE) levied the fine because prison officials failed to timely notify it of the accident and because about 2,500 gallons of the diesel contaminated a nearby wetland.
Another 3,600 gallons leaked into a local wastewater treatment plant. DOE officials found trace amounts of fuel in the plant's discharge, which flows into Puget Sound.
According to the DOE, had the prison followed its own procedures the damage could have been minimized. If the facility's spill contingency plan had been followed appropriately, the cleanup would have gone quicker and it's possible that less environmental damage would have occurred," said DOE spill response manager Dave Beyers.
The spill was caused by a faulty automatic shut-off switch on a fuel tank at the prison's emergency generator building, the DOE said.
Source: The News Tribune (Tacoma)
The Washington Department of Corrections (WDOC) has been fined $22,503 for polluting the environment with thousands of gallons of diesel fuel, the Tacoma News Tribune reported on September 3, 2004.
The great thing about being a county's top lawman is having a cadre of free labor for your own personal use. Or so many Georgia sheriffs think. Although it is a felony under state law to use prisoner labor for personal gain, no less than six Georgia sheriffs have been implicated in scandals involving just that since 1991.
Jenkins County Sheriff Bobby Womack, 69, improperly profited from prisoner labor for more than a decade, according to a May 2004 article in the Augusta Chronicle. In the course of its two month investigation, 31 prisoners and 2 former deputies related numerous instances of Womack using prisoners from the Jenkins County Jail for his timber business, his rental properties (he owns more than a dozen trailers and several houses), and his personal home.
The prisoners said the sheriff had them running chainsaws in the woods, patching holes in the walls of trailer homes, and laying sod and cutting grass at the sheriff's private residence. State prisoner William Oglesby said he drove a truck for Womack's Red Acres" logging company for more than a month after being convicted of child molestation in September 2002.
Several prisoners worked ...
by Michael Rigby
Arkansas: In April, 2005, an unidentified sergeant was fired by the state DOC after the February, 2005, death of Wrightsville Unit prisoner Victor Wright, 28, while on a work detail. Wright complained to the sergeant that he was not feeling well while on a work detail clearing weeds and chopping grass. Apparently the sergeant denied the prisoners water breaks and hurried them. Upon returning to the prison Wright went to the prison infirmary where he collapsed and died. The sergeant apparently violated prison regulations and then lied about it to investigators when questioned.
California: On April 11, 2005, federal prisoner Peter Scopazzi, 37, was in a fight with five other prisoners at the U.S. Penitentiary Victorville in Adelanto during which he was stabbed several times. Another prisoner was also hospitalized with injuries. On April 16 Scopazzi died. BOP officials had initially denied any altercation had occurred at the prison when contacted by media. Only later did they change their story and reveal the incident and injuries that ensued. No reason was given for the altercation. Scopazzi had been serving a 170 month sentence for possessing methamphetamine and a firearm.
California: On April 21, 2005, 75 black ...
News in Brief: