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Prisoner Education Guide

Prison Legal News: March, 2006

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Volume 17, Number 3

In this issue:

  1. Federal Court Seizes California Prisons' Medical Care; Appoints Receiver With Unprecedented Powers (p 1)
  2. Ten Deaths At San Quentin from Macabre" Healthcare (p 7)
  3. California Prison Doctor Suspended Following Three Prisoner Deaths (p 9)
  4. From the Editor (p 10)
  5. Los Angeles County Pays $900,000 to Parents of Murdered Informant in Jail (p 10)
  6. NY DOC's 60% Telephone Call Surcharge" Violates First and Fourteenth Amendments (p 11)
  7. Dallas Fake Drug Cases Settle For Millions, Jury Awards Damages (p 12)
  8. Wisconsin Prison Employee Raped By Prisoner Awarded $366,000 (p 13)
  9. New York City Pays $75,000 for 28.5 Days False Imprisonment (p 14)
  10. Supreme Court: Prisoners' ADA Right to Sue for Damages Trumps State's Sovereign Immunity (p 14)
  11. Michigan Jail's Disproportionate Treatment of Women Results in $855,000 Settlement Agreement (p 15)
  12. Texas Legislature Requires HIV Testing for Prisoners (p 16)
  13. Texas Prisoners Again Have Limited Right to Appear in Civil Cases (p 16)
  14. New York City Jail Strip Search Suit Settles For $30 Million (p 17)
  15. Florida Awards $2 Million to Wrongfully Convicted Man (p 17)
  16. California Enacts Strong Sexual Abuse in Detention Elimination" Act (p 18)
  17. Police Department Class Action Fraud Suit Filed Against Stun Gun Maker (p 18)
  18. New Mexico Jail Prisoners Raped by Judge and Guards Settle for $890,000 (p 19)
  19. PLN Questions John Ashcroft on the Death Penalty (p 20)
  20. Wackenhut Settles Pennsylvania Suicide Suit For $125,000 (p 20)
  21. Appointment Of Counsel Ordered To Determine California Prisoner's Request For Post-Appeal DNA Testin (p 21)
  22. Washington Jail Pays Teenager $400,000 for Rape While Imprisoned (p 21)
  23. New York Governor Illegally Halts the Release of 12 Sex Offenders (p 22)
  24. BOP Enjoined from Terminating Boot Camp Program (p 22)
  25. Sixth Circuit Upholds Michigan Ban On Prisoner Appeals of Discretionary Denials of Parole (p 23)
  26. Wrongfully Imprisoned D.C. Disabled Man Settles Suit For $1.74 Million (p 24)
  27. Former Riker's Island Head Goes to Prison (p 24)
  28. $3.6 Million Awarded in Rape and Murder by Erroneously Released NY Prisoner (p 25)
  29. BOP Awards Unisys Corp. Nationwide Prison Phone Contract (p 25)
  30. Federal Government Bans Medicaid Impotence Drugs for Sex Offenders (p 26)
  31. BOP Secret Squirrel Photo File" Suit Remanded (p 26)
  32. New York Jail Prisoner Injured In Assault Awarded $750,000 (p 27)
  33. Rebellion at CCA Prison in Texas (p 27)
  34. Arkansas Juvenile Prisons Cornell Kills a Prisoner, Hires Guard DOC Fired (p 28)
  35. Washington State Forensic Scientist Helps Convict the Innocent, FBI Assists (p 28)
  36. Avalon Correctional Services Delisted From NASDAQ (p 30)
  37. Civil Commitment of Massachusetts Sex Offenders Expanding (p 30)
  38. California Lifer's Understanding of Plea Agreement Does Not Create Entitlement to Parole (p 30)
  39. York County, Maine, Settles Class Action Strip-Search Suit for $3,300,000 (p 31)
  40. Florida DOC's Copy Cost Assessment Rule Declared Invalid (p 31)
  41. New Jersey's Legal Mail Policy Enjoined; Qualified Immunity Granted (p 32)
  42. Michigan Jail Settles Suicide Suit for $280,000 (p 32)
  43. Pre-Trial Defendant Released on Recognizance Is Not Subject to Warrantless Search Without Probable C (p 33)
  44. Los Angeles County Pays Prisoner $42,500 for Legal Malpractice by Public Defender (p 33)
  45. California Pays Innocent Prisoner $328,000 for Nine Years in Prison (p 34)
  46. California DOC Watched Over by Toothless Bureau of Independent Review (p 34)
  47. New Jersey Settles Prisoners Freedom of Religion Suit (p 34)
  48. COPS Program Fails To Arrest Crime, Funding Improprieties (p 35)
  49. Withholding Legal Mail States Legal Access Claim (p 36)
  50. Florida Closes Scandal Ridden Girls Facility, Takes Over Control of Another Juvenile Facility (p 36)
  51. Theft of Prisoners Book by Guards Valid Legal Basis for Texas Civil Suit (p 37)
  52. Nebraska Supreme Court Reverses Dismissal of Prisoners Drug Testing § 1983 Claim (p 37)
  53. Fourth Circuit Reverses $35,934.66 Habeas Fee Award; Habeas Corpus Not Civil Action Under EAJA (p 38)
  54. Court Orders Mob Boss Released from SHU (p 38)
  55. New York Jail Detainee Awarded $233,000 in Damages and Fees for Excessive Force Claim (p 39)
  56. Sixth Circuit PLRA Fee Set at $169.50 Not $135 (p 40)
  57. Qualified Immunity on FRCP 12(b)(6) Motion Faces Formidable Hurdle in Hepatitis Case (p 41)
  58. Washington Settles Prisoners Medical Indifference Suit for $370,000 (p 42)
  59. News in Brief (p 42)
  60. Ninth Circuit Reverses Dismissal of ADA Suit for Failure to Exhaust (p 44)

Federal Court Seizes California Prisons' Medical Care; Appoints Receiver With Unprecedented Powers

Federal Court Seizes California Prisons' Medical Care;
Appoints Receiver With Unprecedented Powers

by Marvin Mentor

The California Department of Corrections and Rehabilitation (CDCR) is forcefully having its failed healthcare system both corrected and rehabilitated. Despite court-ordered healthcare remediation and monitoring over the past 25 years, CDCR's performance continued to fail Eighth Amendment standards proscribing cruel and unusual punishment. Citing continuing preventable prisoner deaths in CDCR at the rate of 64 per year, a frustrated but undeterred Senior U.S. District Court Judge Thelton E. Henderson stripped the $1.2 billion CDCR healthcare authority from then Corrections Secretary Roderick Hickman and, after appointing interim receiver John Hagar in November 2005, appointed highly acclaimed health administrator Robert Sillen, 63, on February 14, 2006, to take control. Effective April 17, 2006, Sillen will begin his $650,000/yr. post to take over CDCR's healthcare by hiring his own management team.

Judge Henderson's February 14th order granted Sillen the unprecedented power to hire, fire and discipline staff; to make and break contracts; to write and discard policies; and to control every healthcare dollar he orders used for CDCR's 160,000 prisoners. If a state law, regulation or contract, including labor ...

Ten Deaths At San Quentin from Macabre" Healthcare

Ten Deaths At San Quentin from Macabre" Healthcare

by Marvin Mentor

San Quentin State Prison (SQ), a scant 25 miles from the San Francisco courtroom of Plata v. Schwarzenegger Judge Thelton E. Henderson, was high on the court's agenda for improved medical care. [See related story, p.1.] In the four-phase Plata statewide healthcare improvement rollout, SQ was due to finish court-ordered upgrades by January 1, 2005. The court appointed nationally renowned experts Dr. Michael Puisis and Dr. Joe Goldenson, along with Madie Lemarre, CFNP, to inspect and evaluate SQ's healthcare commencing January 24, 2005. Judge Henderson personally toured SQ with these experts on February 10, 2005. The experts' shocking 53 page report to the court of macabre" healthcare issued April 18, 2005.
We begin with its summary. [SQ] is so old, antiquated, dirty, poorly staffed, poorly maintained, with inadequate medical space and equipment and over-crowded that it is our opinion that it is dangerous to house people there with certain medical conditions and is also dangerous to use this facility as an intake facility. In addition, the overcrowding and facility life-safety and hygiene conditions create a public health and life-safety risk to inmates who are housed there ...

California Prison Doctor Suspended Following Three Prisoner Deaths

by Marvin Mentor

A San Quentin State Prison physician, Dr. Garen Vong, whose alleged negligence contributed to the deaths of three prisoner patients since 2002, was suspended with pay ($11,381 per month) on February 3, 2005 pending investigation. The three preventable" prisoner deaths were part of the incompetence and outright depravity in the rendering of medical care" characterized by U.S. District Judge Thelton Henderson in the court's formalized order of October 3, 2005 naming a trustee to take over the California Department of Corrections and Rehabilitation's (CDCR) health care program.

San Quentin prisoner Bobby Lee Duren, 48, went to sick call on February 3, 2005 where he was diagnosed with bronchitis. He was prescribed cough syrup, Tylenol, Benadryl and antibiotics. While returning to his cell, he collapsed. Thirty hours later he was taken out to Marin General Hospital's emergency room exhibiting high fever, low blood pressure, a high pulse, and a fast respiratory rate. This was a very serious medical problem" that could have been diagnosed by a fourth-year medical student, according to testimony last June by Dr. Joe Goldenson, San Francisco's jail health services director, appearing at Judge Henderson's request. Duren died ...

From the Editor

by Paul Wright

Sometimes I am asked what PLN does, besides publish a magazine. The answer is quite a lot and we are going to try to do a better job of letting people know about it.

In addition to publishing PLN we also have a top notch website that is the number one source of information on all things related to detention facility news and litigation. All 190 PLN back issues are on line in a searchable database and the full text of all court decisions we have reported is also online. Users can search on many different criteria, including subject, location, case name, title, case outcome, and much more. We also have a brief bank with pleadings, settlements and similar documents and a publications section that has a wide variety of government reports, advocacy manuals and much more on it. Everything is designed so it can be easily printed and mailed to prisoners who do not have access to the internet.

PLN's website has the largest collection, over 1,000 at last count, of prison and jail verdicts and settlements. When trying to value a case before filing it or determine a reasonable value for settlement purposes ...

Los Angeles County Pays $900,000 to Parents of Murdered Informant in Jail

The County of Los Angeles (L.A.) agreed to pay $700,000 to the mother, and $200,000 to the father, of a 20 year old county jail prisoner murdered in his cell by a free-roaming prisoner against whom he had just testified in a murder trial.

Raul Tinajero, a ...

NY DOC's 60% Telephone Call Surcharge" Violates First and Fourteenth Amendments

NY DOC's 60% Telephone Call Surcharge" Violates First and Fourteenth Amendments

by John E. Dannenberg

The U.S. District Court (S.D. N.Y.) ruled that the 60% surcharge (kickback) that the New York State Department of Corrections (NYDOC) receives from MCI, Inc. for the privilege of MCI being awarded a sole-source contract for all NYDOC prisoner collect phone calls violates the First Amendment plus the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The court therefore permitted a suit brought by prisoners' families in federal court to proceed against NYDOC, but dismissed co-defendant MCI (after delaying the case two years to await MCI's emergence from bankruptcy proceedings).

Over fiscal years 1996-1999, gross NYDOC prisoner telephone call revenue collected by sole provider MCI exceeded $155 million. Of this sum, a staggering $93 million (approximately 60%) was kicked back as a commission" to NYDOC.

Plaintiff Mary Byrd, 79, suffering from chronic lung disease, is unable to visit her two sons who have been incarcerated since 1983. Her voice contact with them is by collect phone calls. But with MCI's exorbitant charges, she was unable to pay her $150/mo. bills, and was cut off. Although she ...

Dallas Fake Drug Cases Settle For Millions, Jury Awards Damages

by Michael Rigby

In 2001, police officers in Dallas, Texas, made 33 arrests in what has since become known as the fake drug scandal." The victims were all charged with possessing cocaine, based on supposedly positive field tests of seized substances, when in fact there was little or no trace ...

Wisconsin Prison Employee Raped By Prisoner Awarded $366,000

On April 8, 2005, a federal jury awarded $366,000 to a Wisconsin prison employee who was raped by a prisoner.

The 51-year-old female plaintiff, a non-security employee of the Wisconsin Department of Corrections was raped by a knife-wielding prisoner on December 28, 2001. Eight days prior to the attack ...

New York City Pays $75,000 for 28.5 Days False Imprisonment

On September 8, 2005, the City of New York, New York, settled for $75,000 a prisoner's lawsuit alleging 28.5 days false imprisonment.

Plaintiff William Perocier, Jr., a 31 year old tow truck driver, was sentenced to six months in jail in early 2001 for failure to pay ...

Supreme Court: Prisoners' ADA Right to Sue for Damages Trumps State's Sovereign Immunity

by John E. Dannenberg

The United States Supreme Court unanimously ruled that the private cause of action created by the Americans With Disabilities Act (ADA) (42 U.S.C. § 12131 et seq.), which permits disabled state prisoners to sue prison officials for damages resulting from violation of prisoners' Constitutional rights, takes precedence over (validly abrogates) the state's defense of sovereign immunity, at least as to actual violations of the Fourteenth Amendment.

Tony Goodman, a paraplegic Georgia state prisoner, sued state defendants in federal district court under 42 U.S.C. § 1983 and Title II of the ADA for violation of his Eighth Amendment rights as to cruel and unusual punishment. He alleged, inter alia, that he was confined 23 hours/day in a cell so narrow that he could not turn his wheelchair. The district court dismissed the claims as vague and granted summary judgment on his Title II money claims as barred by Georgia's Eleventh Amendment sovereign immunity. The United States of America intervened in support of the supremacy of its ADA statute. The Eleventh Circuit U.S. Court of Appeals reversed the district court's holding that Goodman had not adduced sufficient facts to support some ...

Michigan Jail's Disproportionate Treatment of Women Results in $855,000 Settlement Agreement

A Michigan federal district court has approved a settlement awarding $855,000 in a class action alleging the conditions of confinement for women at the Livingston County Jail were disproportionate to that of men held at the jail. The suit also involved privacy concerns.

The suit was brought initially filed ...

Texas Legislature Requires HIV Testing for Prisoners

Texas prisoners must now be tested for HIV before they are allowed to leave prison. Rep. Yvonne Davis, D-Dallas, authored House Bill 43 which was signed on June 19, 2005, by Gov. Pick Perry, and went into effect on September 1st. The bill is based on the paranoid position that prisoners are responsible for spreading HIV to a chaste public.

Vera Johnson, executive director of the Houston AIDS Foundation, points out that Texas prison populations have a higher percentage of AIDS infected patients than the general public. Johnson insists that prisoners are contracting HIV in prison," and says It's a threat to the public health system and the community right now.

Johnson also states that infection rates are six time higher in prison than in the general public. What is not mentioned is how the figure correlates to the number of people tested in each population.

Ninety-nine percent of Texas prisoners are tested (voluntarily) for the disease but it is doubtful that ninety-nine percent of the general public is tested. Consequently, Johnson's figures and conclusions are suspect.
Johnson also points out that the percentage of prisoners with HIV is six times higher than in the public sector and ...

Texas Prisoners Again Have Limited Right to Appear in Civil Cases

by Matthew T. Clarke

In a well-reasoned opinion with copious citations, a Texas court of appeals held that Texas prisoners have a limited right to appear in civil cases even if they cannot justify a personal appearance.

C.J., a Texas state prisoner, and D.J. adopted D.D.J., were later divorced and, later still, C.J. was incarcerated. As a condition of divorce, C.J. was made joint managing conservator of D.D.J. and ordered to pay child support. D.J. eventually fell behind in child support and other court-ordered obligations. D.J. then filed a motion to enforce the child support provisions of the divorce decree and modify the parent-child relationship to make D.J. sole managing conservator.

C.J. filed a motion for appointment of counsel because he was indigent and incarcerated. The court denied the motion because the case did not involve termination of parental rights. A final hearing was scheduled.
C.J. filed a motion for a bench warrant to attend the hearing or, alternatively, to appear by teleconference or other alternate means. The court twice denied the motion for bench warrant, but failed to make a ruling on the alternate appearance portions ...

New York City Jail Strip Search Suit Settles For $30 Million

by John E. Dannenberg

On April 27, 2005, the City of New York agreed to settle a federal court class action 42 U.S.C. § 1983 civil rights suit with 57,634 past misdemeanant prisoners at its city jails, paying $750 to each person unlawfully strip-searched upon their post-arraignment jail ...

Florida Awards $2 Million to Wrongfully Convicted Man

At its special session in December 2005, the Florida Legislature passed a bill to pay 44-year-old Wilton Dedge $2 million as compensation for a rape he did not commit. Dedge spent 22 years in Florida prisons for the sexual assault and stabbing of a 17-year-old Brevard County girl.

After a 10-year battle to force a DNA test, Dedge was finally released in August 2004. Since his release, Dedge has been driving a 17-year-old pick up. He had an idea of how he would spend some of his compensation. Get me a decent car, for one," he said. He also plans to invest some of the money, buy a house, and pay back his parents, who took out a second mortgage on their home and spent their life savings defending him in court.

Yet, money isn't everything. Honestly, there's nothing anybody can do to make up for 22 years. All that time is gone," said Dedge.

The Florida Legislature plans to establish a policy to compensate future victims of wrongful incarceration. I hope we can come up with a policy that will be a lasting policy," said Sen. Daniel Webster, R-Winter Garden. I think we've laid at least ...

California Enacts Strong Sexual Abuse in Detention Elimination" Act

California Enacts Strong Sexual Abuse in Detention Elimination" Act

by John E. Dannenberg

To aid compliance with the federal Prison Rape Elimination Act (PREA) of 2003 (Public Law 108-79), California enacted Assembly Bill 550 (AB 550), the Sexual Abuse in Detention Elimination Act (SADEA), on September 22, 2005. SADEA provides for policies, instruction, counseling and investigation regarding sexual abuse in California's prisons and juvenile facilities.

Studies in the United States have estimated that one in five male prisoners has been sexually abused, usually by other prisoners. Female prisoners fare worse, with a one-in-four record, but with much of the abuse perpetrated by male guards. Recognizing that the problem will not go away by itself [149 California prisoners reported sexual abuse in 2004 alone], the California Legislature adopted AB 550 to require the California Department of Corrections and Rehabilitation (CDCR) to take a proactive stance against this pervasive problem.

The stated purposes of AB 550 are to protect all CDCR prisoners from sexual abuse; to make this goal a top priority; to require CDCR to implement preventive procedures and to protect victims; to maintain and make public sexual abuse records within all prisons; to increase CDCR's accountability in preventing ...

Police Department Class Action Fraud Suit Filed Against Stun Gun Maker

by John E. Dannenberg

A class action lawsuit against Taser International, Inc., the Arizona-based manufacturer of police stun guns, was filed on July 18, 2005 in Chicago U.S. District Court on behalf of the Dolton, Illinois police department (DPD), alleging breach of contract, breach of warranty and unjust enrichment stemming from false safety claims and false representation of material facts concerning the product's safety. In short, the suit claims that Taser fraudulently gained 135,000 stun gun sales to over 7,000 law enforcement agencies nationwide by misleading buyers into believing the guns were safe to use in subduing suspects.

So far, the DPD is the only named plaintiff in the diversity action. The federal court venue was chosen because Taser is a Delaware corporation, because class members from all states are anticipated and because damages are estimated to exceed $5 million, according to plaintiff's attorney Paul Geller of Boca Raton, Florida. Although over 100 deaths from police operated Taser guns have been reported across the country, none has occurred in Dolton, a predominantly black Chicago community of 26,000 people. But Dolton's police Chief Ron Burge suspended use of the stun guns in May 2005 ...

New Mexico Jail Prisoners Raped by Judge and Guards Settle for $890,000

On June 3, 2004, ten female prisoners who were allegedly raped by a New Mexico judge and jail guards settled their lawsuit for $890,000.

The plaintiffs, who had been confined in the Española City Jail, claimed municipal judge Charles Maestas raped them after they appeared in his courtroom. The ...

PLN Questions John Ashcroft on the Death Penalty

by Alex Friedmann

On Feb. 13, 2006, former U.S. Attorney General John Ashcroft gave a presentation in favor of the death penalty at Vanderbilt University in Nashville, Tennessee as part of the school's Project Dialog series. The series' theme for 2006 was Crime and The Ultimate Punishment.
Ashcroft, who also served as Missouri's Attorney General, Governor of Missouri and a U.S. Senator, resigned after serving as Attorney General under the Bush administration from 2001 through 2005. Perhaps best known for crafting the civil liberty-defying PATRIOT Act, he now operates a lobbying firm, the Ashcroft Group LLC.

Ashcroft voiced his support of capital punishment for two primary reasons: It saves lives (through general deterrence) and it provides closure both for crime victims and society as a whole (calling the death penalty a form of societal self-defense). He also noted that capital punishment deters the criminals who are executed, saying Dead men tell no tales & and commit no crimes.

As Prison Legal News's representative at the event, I asked Ashcroft whether the emphasis on federal death penalty prosecutions against white defendants (citing the on-going capital trials of eight members of the Aryan Brotherhood prison gang), while similar ...

Wackenhut Settles Pennsylvania Suicide Suit For $125,000

On May 11, 2005, Wackenhut Corrections Corporation (now known as Geo Group) agreed to settle for $125,000 a lawsuit arising from the suicide death of a prisoner in the Wackenhut-operated George W. Hill Correctional Facility, also known as the Delaware County prison.

John William Focht, Jr. was arrested in Delaware County, Pennsylvania, on February 3, 2002, and charged with possession of cocaine with intent to deliver. Upon intake at the county prison, Focht, a 43-year-old father of four, indicated that he had a history of depression and had attempted suicide; that he had been drinking at least 20 beers per day and using cocaine; and that he had been taking the antidepressant drug Paxil.

Focht was subsequently interviewed by Doctor Victoria Gessner, who started him on 100 milligrams of lithium per day. Because Gessner also placed Focht in a detoxification program, he was housed in isolation where guards were supposed to check on him every 15 minutes.

Two days after he was admitted to the prison, Focht was dead. Guards found him hanging in his cell on February 5, 2002 at approximately 7:30 p.m. He had fashioned a noose from his boot laces, which he attached to ...

Appointment Of Counsel Ordered To Determine California Prisoner's Request For Post-Appeal DNA Testin

Appointment Of Counsel Ordered To Determine California Prisoner's Request For Post-Appeal DNA Testing

In a case of first impression, the California Court of Appeal strictly construed Penal Code § 1405 to require that the Superior Court appoint a prisoner counsel to determine the appropriateness of performing post-appeal DNA testing and filing of a writ of habeas corpus if then needed. In so doing, the appellate court criticized the Legislature for writing an unnecessarily overbroad statute.

Penal Code (PC) § 1405 provides that any indigent convicted person may request appointment of counsel to prepare a motion for DNA testing by sending a written request to the court, which only requires a statement that that person was not the perpetrator of the crime and that DNA testing is relevant to their assertion of innocence. Accordingly, Todd Kinnamon, sentenced to 81 years-to-life under California's Three-Strikes law for attempted murder and other crimes, sought PC § 1405 relief to prove that his crime partner, not he, was the perpetrator, by having DNA testing done long after his conviction had become final.

The Superior Court had summarily denied his request. On appeal, a reluctant court construed the law to mean that any prisoner making the requisite ...

Washington Jail Pays Teenager $400,000 for Rape While Imprisoned

Washington's Franklin County has paid $400,000 to settle a lawsuit brought by a former pretrial detainee who was raped in the Franklin County Correctional Center (FCCC) by another detainee. The civil rights claim brought in a Washington federal court alleged failure to protect.

After he was arrested on ...

New York Governor Illegally Halts the Release of 12 Sex Offenders

by Gary Hunter

New York Governor George Pataki illegally ordered twelve sex offenders, scheduled for release from prison, to be committed to New York's Manhattan Psychiatric Center (MPC), between September 23 and October 21, 2005. On November 2, 2005 New York Supreme Court Justice Jacqueline Silbermann granted the petitioner's unopposed motion to proceed anonymously in a habeas suit against the MPC.

Frustrated at his inability to persuade politicians to pass civil commitment legislation for sexual predators, Gov. Pataki contrived to take the law into his own hands. The twelve fell prey to Pataki's orders to push the envelope" in interpreting Section 9.27(a) of New York's Mental Hygiene Law (MHL) which allows involuntary confinement of dangerous mentally ill persons.

Assistant Attorney General Edward J. Curtis defended Pataki's actions saying that prison superintendents properly applied for confinement orders and had each prisoner examined by two psychiatrists who recommended hospitalization. Upon arrival at a state hospital a third examination was conducted.

Steven Harkavy, deputy director of Mental Hygiene Legal Services (MHLS) and Does' counsel, argued that the law makes no provision for prison superintendents to initiate civil confinement.

If the legislature would have wanted the prison ...

BOP Enjoined from Terminating Boot Camp Program

A Massachusetts federal district court has entered a preliminary injunction against the Bureau of Prisons (BOP), enjoining it from terminating its boot camp" incarceration program, pending compliance with the Administrative Procedures Act (APA), and requiring good faith consideration of the plaintiff for inclusion in the program.

The plaintiff, Richard Castellini, was convicted in July 2002 of money laundering and conspiracy to launder money. He was sentenced to twenty-one months imprisonment. After his conviction and sentence was affirmed on appeal, Castellini was allowed to report to the Intensive Confinement Center (ICC) at USP-Lewisberg on January 14, 2005. Eight days after his sentencing, the BOP sent a memorandum to federal judges dated January 14, 2005, stating that the boot camp program would be terminated effective immediately" and that individuals enrolled in the program would be allowed to complete it, but that no new prisoners would be accepted into the program.

In 1990, Congress enabled the creation of the federal boot camp program, also known as the Shock Incarceration Program or ICC. Prisoners that successfully complete the rigorous demands of the boot camp may have their sentence reduced by up to six months and serve the remainder of the sentence in home confinement ...

Sixth Circuit Upholds Michigan Ban On Prisoner Appeals of Discretionary Denials of Parole

The Sixth Circuit U.S. Court of Appeals upheld Michigan's lately revised statute that forecloses state prisoners from challenging discretionary denials of parole. Because the former availability of such a challenge had led to thousands of mostly unsuccessful suits, the Sixth Circuit accepted the state's argument that saving money from fighting those frivolous" suits provided a rational basis for the preclusive amended statute.
Michigan state prisoner Paul Jackson filed a 28 U.S.C. § 2254 federal habeas corpus petition against Warden David Jamrog attacking the constitutionality of the 1999 revision to Michigan statute M.C.L.A. § 791.234(9), which permits an appeal to state court by prosecutors and crime victims of parole board decisions granting parole, but denies the equivalent right of appeal to state prisoners who are denied parole. Jackson claimed this process violated his Equal Protection rights.
As a threshold matter, the court dealt with Jackson's failure to exhaust remedies in state court, per 28 U.S.C. § 2254(b)(3). However, the Michigan Court of Appeals held that no state court attack of discretionary parole denials is permissible. (Morales v. Mich. Parole Bd., 676 N.W.2d 221, 225 (2003). Accordingly, failure ...

Wrongfully Imprisoned D.C. Disabled Man Settles Suit For $1.74 Million

by Michael Rigby

The District of Columbia and a private medical provider have agreed to pay $1.74 million to Joseph Heard, a deaf, mute, and mentally disabled man who was wrongfully imprisoned in the D.C. jail for nearly two years.

Heard's ordeal [originally reported in PLN, April ...

Former Riker's Island Head Goes to Prison

Matthew T. Clarke

In March 2005, Anthony Serra, formerly the second-in-command of the New York City corrections department and top official at Rikers Island Jail, pleaded guilty to state and federal charges. He was subsequently sentenced to a year in prison. As previously reported in the August 2003 and January 2005 PLNs, Serra had been facing prosecution on a 144-count state indictment for charges stemming from his use of jail workers to renovate his kitchen and bathroom, plant trees and shrubs, mow the law, repair the driveway and other tasks at his house in Mahopac. The indictment also charged that Serra systematically stole city property and falsified state records to give the employees who worked on his home undeserved overtime.
The federal charges came from Serra's failure to report on his income tax form $200,000 he made as a political consultant. The money was paid to Serra after he forced jail employees to work for free on Republican political campaigns. Serra's political employees included the New York Republican State Committee and the Friends of Pataki. The offenses occurred in 1998, 2001 and 2002.

Serra faced up to five years in federal prison. On August 1, 2005, he ...

$3.6 Million Awarded in Rape and Murder by Erroneously Released NY Prisoner

The New York Court of Claims awarded $3,621,632 to the estate of a woman who was raped and murdered by a prisoner who was mistakenly released early. The court also awarded $1,950,000 to another woman who was raped and severely beaten by the offender. Fault was ...

BOP Awards Unisys Corp. Nationwide Prison Phone Contract

The U.S. Federal Bureau of Prisons (BOP) contracted with Unisys Corp. (Bluebell, Pennsylvania) to install new telephone systems in over 110 BOP prisons nationwide. The September 14, 2005 contract awards $37 million for the first three years, expandable in three one-year options to a total of $96 million.

Under the contract's terms, Unisys will install, maintain and program its Inmate Telephone System-3 (ITS-3). Unisys claims the new equipment requires only one-eighth of the current system's hardware space, and will make use of Unisys ES3120 servers programmed with a prisoner telephone software application provided by Value Added Communications of Plano, Texas.

Unique to ITS-3 is that prisoners will be able to pay for their calls in three ways. They may make a direct debit from their prison commissary accounts; they may call collect; or they may use pre-paid collect accounts. Unisys plans to offer similar services to state and local prison markets.

Not announced was what, if any, "kickback" percentage Unisys returns to the BOP or how their billing compares with free market rates for non-prisoners.

Source: Unisys Corp. Press Release, September 14, 2005.

Federal Government Bans Medicaid Impotence Drugs for Sex Offenders

The U.S. Government has ordered states to ensure convicted sex offenders do not receive reimbursement for erectile dysfunction drugs under Medicaid or Medicare.

A New York audit showed 198 sex offenders received such drugs through the state/federal health-care program for the poor and elderly since 2000. Shortly thereafter, President George Bush moved to close the loophole that lets sex offenders to receive drugs such as Viagra, Levitra, and Cialis through the program.

The federal action caused Florida's Attorney General to leap quickly onto the bandwagon. Chain-gang Charlie" Crist's staff concluded that over the last four years 218 Florida sex offenders received Viagra, costing $93,000. Crist said 77 percent of those had committed sex crimes involving minors.
Chain-gang Charlie, who announced his candidacy for Florida governor in May 2005, is a known prisoner basher. In the 1990s as a state senator, Crist was on the get tough on crime" set and pushed legislation reinstituting chain-gangs, increased penalties and prison populations, and decreased recreational and educational programs in prisons. With a recent abduction and murder of three young Florida girls, Crist has been getting ample mainstream media mileage on the backs of released sex offenders.
Crist's ...

BOP Secret Squirrel Photo File" Suit Remanded

BOP Secret Squirrel Photo File" Suit Remanded

The U.S. Court of Appeals for the D.C. Circuit has reinstated a prisoner lawsuit under the federal Privacy Act (Act) at 5 U.S.C. § 552a, et seq. The District Court for the District of Columbia had dismissed the case for want of a genuine issue of material fact.

Federal prisoners Keith Maydak, George Smith and Paul Lee initiated the case pro se after learning that the federal Bureau of Prisons (BOP) was misusing the Inmate Photography Program. Under the photography program, prisoners pay $1 to the Inmate Trust Fund and can then have their photos taken with family or friends. Film developers provided a second photo at no extra cost, which guards then confiscated and put in an investigative file." Believing this practice to be unlawful, the prisoners sued various federal facilities (Beckley, Cumberland, Lewisburg, McKean and Ray Brook).
Guards at Beckley and McKean admitted paying for photo development with money from the Inmate Trust Fund in violation of 31 U.S.C. § 1321(b)(1). That statute prohibits guards from using fund monies to pay for security programs, as the fund is for the benefit of prisoners. Consequently, the ...

New York Jail Prisoner Injured In Assault Awarded $750,000

On July 12, 2005, a New York court awarded $750,000 to a prisoner who suffered ankle and face injuries when he was beaten by other prisoners.
While imprisoned at Rikers Island in Queens on February 12, 1995, Joshua Torres, 17, was confronted by another prisoner who demanded his sneakers ...

Rebellion at CCA Prison in Texas

On August 27, 2005, a riot involving hundreds of prisoners broke out in a private prison run by Corrections Corporation of America (CCA) in Mineral Wells, Texas, injuring a dozen prisoners and two guards. The sixteen-year-old, 2,100-bed facility holds prisoners with less than a year to serve before their expected parole date.

Around 8:00 p.m. on Saturday, August 27, 2005, fights broke out among two dozen of the over 500 prisoners on the prison's recreation yard. Guards quelled the fights and returned the prisoners to their housing units.
At approximately 9:30 p.m., prisoners from one building began to battle those from another building. The fights spilled out onto the recreation yard and involved around 200 prisoners, some of whom had armed themselves with broom handles, sticks and boards. About 10:15 p.m., the Parker County Sheriff's Department, Palo Pinto County Sheriff's Department, Mineral Wells Police Department, Texas Department of Public Safety and Texas Rangers were notified of the riot and sent officers to secure the prison's perimeter. DPS also sent a searchlight-equipped helicopter.

A special operations team was deployed to quell the riot. They used tear gas, which quickly brought ...

Arkansas Juvenile Prisons Cornell Kills a Prisoner, Hires Guard DOC Fired

by Matthew T. Clarke

Arkansas paid Cornell Corporations of Houston, Texas, $9.5 million a year to manage the Alexander Youth Services Center in Pine Bluff, Arkansas. What they got for their money was a prison that killed by medical neglect a juvenile prisoner with a blood clot in her lungs whose requests for medical attention had been ignored for weeks. The prison also hired a guard the Arkansas Department of Corrections (DOC) had fired for having sex with a prisoner. What Cornell's mismanagement earned them was a recommendation for extension of their contract from the state legislature.

John Berry, 40, was a 16-year veteran of the Arkansas Department of Correction and a sergeant when he was accused of having sex with a prisoner. An internal affairs investigation concluded that Berry had sex with a prisoner at the Tucker maximum security prison. This finding, bolstered by his failing a lie detector test, led to his firing in October 2002.

No criminal charges were filed against Berry. Therefore, he passed a criminal history background check conducted by Cornell when they hired him. Berry also filed a federal civil rights suit against the DOC alleging the DOC violated his due process ...

Washington State Forensic Scientist Helps Convict the Innocent, FBI Assists

by Matthew T. Clarke

Washington State Patrol crime lab forensic scientist Charles Vaughan had no problem finding new employment after he helped convict two innocent Oregon State men of murder when he worked as a state forensic scientist in the Oregon State Police crime lab. Indeed, as it now turns out, the innocent men would not have been convicted without Vaughan's tainted testimony. Furthermore, since he was hired by Washington, Vaughan has botched more forensic work and made mistakes on forensic-science proficiency examinations.

Vaughan had been working for the Oregon State Police crime lab for about thirteen years when 19-year-old convenience store clerk Raymond Oliver was murdered in Springfield, Oregon, on June 7, 1983. The murder was an execution-style shooting from close range. On June 24, 1983, Chris Boots and Eric Procter were arrested for the crime, but three days later were released without having been charged.

Vaughan analyzed alleged blood evidence--which he referred to as high velocity blood splatter--from Boots's and Procter's clothing. He claimed to have found a fleck of gunpowder on Procter's pants. In testing the fleck, Vaughan totally consumed it and only discovered that it contained nitrates, chemicals found in matches, fireworks ...

Avalon Correctional Services Delisted From NASDAQ

On February 3, 2005, Avalon Correctional Services, Inc., announced that it had filed Form 15 with the Securities and Exchange Commission (SEC) to terminate the company's common stock pursuant to the Securities and Exchange Act of 1934 (SEA). This allows Avalon to cease filing SEC-required reports, including forms 8-K, 10-K and 10-Q.

Avalon complained that the costs of complying with Section 404 of the SEA, as required by the Sarbanes-Oxley Act of 2002, was making the business unprofitable. By terminating common stock, it will eliminate legal, auditing, accounting and printing expenses associated with compliance. These costs might otherwise cause Avalon to default on its loan obligations and prevent it from accessing sufficient funds to continue daily operations.

Avalon will no longer be listed on the NASDAQ. It may be traded over the counter on the Pink Sheets, a centralized stock quotation service that operates through a web site. Avalon will still be required to report to its stockholders under Nevada state law. Avalon also announced its intention to post its press releases, quarterly reports and annual financial results on its website.

Source: Avalon Company Press Released.

Civil Commitment of Massachusetts Sex Offenders Expanding

by Michael Rigby

Massachusetts prosecutors are using recent changes in state law to expand the number of sex offenders imprisoned through civil commitment, and it's costing taxpayers millions.

In 2004 and 2005, the Massachusetts legislature and Governor Mitt Romney greatly expanded the pool of sex offenders who could be committed to the state Treatment Center in Bridgewater. The old law was much narrower, focusing mainly on sex offenders who assaulted children. The new law includes such crimes as propositioning a minor, possession of child pornography, and open and gross lewdness and lascivious behavior.
As a consequence, the number of petitions filed to commit sex offenders after their release from prison has risen sharply, from 75 in 2003 to 124 in 2004. In October 2005, 157 petitions were pending statewide, said Superior Court officials.

Under the law, individuals are committed if prosecutors can prove beyond a reasonable doubt that he or she is likely to commit another sex crime due to a mental abnormality or personality disorder.

Committed sex offenders are entitled to have a judge review their cases annually to decide if they still pose a threat warranting continued confinement. Even so, release is unlikely. Since the law was ...

California Lifer's Understanding of Plea Agreement Does Not Create Entitlement to Parole

In 1984, Peter Honesto committed a murder in the course of kidnapping and robbery, exposing him to California's death penalty or life without parole. He accepted a plea agreement for 17-life for second degree murder. When later repeatedly denied parole, he successfully petitioned the superior court to enforce" the plea agreement by releasing him. The California Court of Appeal reversed, holding that in the absence of a written record of plea terms that mandated parole, Honesto's subjective memory of his plea understanding did not ipso facto create a right" to parole. Parole may be denied upon some evidence" of the crime alone, when the parole board finds the prisoner unsuitable." See: In re Honesto, 130 Cal. App. 4th 81; 29 Cal. Rptr. 3d 653 (2005).

York County, Maine, Settles Class Action Strip-Search Suit for $3,300,000

In April 2005, York County, Maine, agreed to settle for $3,300,000 a class action lawsuit alleging the county maintained an unconstitutional policy of strip-searching all pre-arraignment detainees in the York County Jail regardless of the charge against them.

Plaintiffs Michele Nilsen end Michael Goodrich contended that upon being ...

Florida DOC's Copy Cost Assessment Rule Declared Invalid

by David M. Reutter

Florida's First District Court of Appeal has held the Florida Department of Corrections (FDOC) does not have legislative authority to support its rule regarding the amount prisoners are charged for photographic copying services, authorizing deductions from prisoners' accounts for copying services, and imposing liens on prisoner accounts to cover such costs.
Florida prisoners Glenn Smith and Thomas P. Wells, Jr. sought a declaratory judgment holding that Rule 33-501.302 of the Florida Administrative Code, which outlines costs charged to prisoners for photocopying services, exceeded the Legislature's grant of rule-making authority to the FDOC. The circuit court entered summary judgment upholding the validity of the challenged portions of the rule.

The First District Court of Appeals found that from the time the copying service rule was originally promulgated, it mandated that all prisons provide prisoners copying services, it designated the type of materials that could be copied by prisoners, and it established a set fee to be paid by prisoners for copying services. The set fee charged is fifteen cents per page for standard sized papers, or more, if the copies require special equipment or paper.

While Florida agencies have rule-making authority, a proposed or ...

New Jersey's Legal Mail Policy Enjoined; Qualified Immunity Granted

A New Jersey federal district court has held that a prison policy of opening legal mail outside of prisoners' presence is unconstitutional, but that prison officials are entitled to qualified immunity from damages. This civil rights action was brought by New Jersey prisoner's Jamaal W. Allah, Lennie Kirkland, and Kevin Jackson, alleging the Legal Mail Policy violates their fundamental rights to free speech and association under the First Amendment.

The Legal Mail Policy was amended by the New Jersey Department of Corrections (NJDOC) after the attacks of September 11, 2001. Citing a Governor's Executive Order that allowed state agencies to suspend or modify existing rules to the extent they jeopardize public policy, the NJDOC required that all incoming legal mail be opened outside prisoners' presence and checked for contraband and anthrax contamination. Prior to the September 11 attacks, NJDOC policy required that all legal mail be opened in a prisoners' presence.

The Court had before it the parties' cross-motions for judgment on the pleadings. It found that while the Supreme Court has upheld a policy of opening and inspecting, but not reading, clearly marked legal mail in a prisoner's presence. The Supreme Court, however, has not addressed ...

Michigan Jail Settles Suicide Suit for $280,000

On June 6, 2004, Wayne County, Michigan, agreed to pay $280,000 to settle a lawsuit filed by the family of a county prisoner who committed suicide days after he was attacked by another prisoner.

Jose Perez was arrested on December 27, 2000, and placed in the Wayne County Jail ...

Pre-Trial Defendant Released on Recognizance Is Not Subject to Warrantless Search Without Probable C

Pre-Trial Defendant Released on Recognizance Is Not Subject to Warrantless Search Without Probable Cause

by John E. Dannenberg

In a case of national first impression, the Ninth Circuit U.S. Court of Appeals held that when a pre-trial (drug-offense) detainee accepted court release on his own recognizance (OR) that was conditioned by his consent to random warrantless drug tests and warrantless searches of his home for drugs, he did not give up his Fourth Amendment right to the police to first establish probable cause for any such test or search. In so holding, the Court sharply distinguished the presumption of innocence and its full panoply of constitutional protections to a pre-trial detainee from those due a probationer or parolee, who is necessarily a convicted criminal with circumscribed constitutional freedoms.

Raymond Scott was arrested by Nevada state authorities for drug possession and released on personal recognizance subject to the above conditions. Based upon an informant's tip, state officers went to Scott's house and took a urine sample. Importantly, the government respondents here admit that the tip, per se, did not establish probable cause. But before the urine test came back positive for methamphetamines, the officers arrested him on preliminary ...

Los Angeles County Pays Prisoner $42,500 for Legal Malpractice by Public Defender

by John E. Dannenberg

The County of Los Angeles paid $42,500 to settle a legal malpractice claim brought by a prisoner who suffered state prison plus felony disenfranchisement upon an unlawful conviction.

In October 1992, Jose Castro, represented by the Public Defender, pled guilty to statutory rape (California Penal ...

California Pays Innocent Prisoner $328,000 for Nine Years in Prison

by John E. Dannenberg

For only the twelfth time since 1981, California paid a wrongfully imprisoned person for his troubles. After serving nine years of a 27-life 1995 sentence for rape, a 38 year-old man was recently awarded $328,000 $100 for each day in prison.

Peter Rose was convicted in 1995 of kidnapping and raping a 13 year-old Lodi, California girl. However, using new DNA technology unavailable in 2004, his conviction was overturned. Rose filed an appeal with the Victim Compensation and Government Claims Board, where, under California Penal Code § 4903, his burden was to prove his innocence, show that he did nothing to lead to his arrest and that he suffered financially. The claim then had to be approved by the Legislature.

Roses pro bono San Francisco attorney, Ray Hasu, filed a 4-inch thick claim for his client, recalling the trial testimony of the victim who had identified Rose after her assault. At the time, the DNA technology did not exist to test the minute evidence of semen, but in June 2004, newer technology made it possible. The DNA now ruled out Rose. Rose used this to gain relief from the San Joaquin Superior Court and was released ...

California DOC Watched Over by Toothless Bureau of Independent Review

While Californias $7.4 billion Department of Corrections and
Rehabilitation (CDCR) continues to report solely to the Governors Secretary of Corrections, the CDCR is also being overseen by the Bureau of Independent Review (BIR), reporting to the Governor. The good news is that some prison employees misdeeds are now being scrutinized by other than their own peers; the bad news is that the BIR has no policing power to order any CDCR employee to do anything.

BIR was formed after frustrated federal judges voiced repeated allegations of mismanagement raised in prisoner lawsuits [see: PLN, Mar. 2005, p.1, California Corrections System Officially Declared `Dysfunctional Redemption Doubtful]. The BIR monitors prison investigations, especially those involving prisoner injury to staff, guards rules violations and prisoner deaths. Headed by former Kern County prosecutor Robert Barton, the BIR is involved in every step of an investigation, from gathering information to suggesting resolutions.

The BIR gets good marks from Donald Specter, director of the non-profit Prison Law Office whose attorneys have spearheaded many successful court challenges to CDCR conditions. Specter calls BIR staff professional, extremely thorough and neutral, particularly in assisting with allegations of staff misconduct. But University of Southern California professor Ruth Gilmore, an ...

New Jersey Settles Prisoners Freedom of Religion Suit

New Jersey Settles Prisoners Freedom of Religion Suit

On November 14, 2005, the state of New Jersey settled a prisoners civil rights lawsuit by paying him $2,000 and allowing him to practice the Wicca religion and to receive related literature and artifacts.

Patrick Pantusco converted to the Wicca religion while imprisoned at the East Jersey State Prison. On January 26, 2002, Pantusco requested that his religion of record be changed to Wicca. Because Wicca was not recognized on the computer system, the classification department changed his religion to other.

Over the next 15 months Pantusco attempted to order various books and religious artifacts, including a pentacle necklace, a prayer cloth, scented oils and herbs, a small bell and flute, and ritual powder, but his requests and delivery of the material was routinely denied. Officials noted, among other things, that Wicca was not a recognized religion.

After various attempts to resolve the issue through the prisons grievance procedures, Pantusco was informed on April 10, 2003, that he would be allowed to possess Wiccan literature but not religious artifacts.

Pantusco subsequently sued prison officials alleging claims under 42 U.S.C. § 1983, the Religious Land Use and Institutionalized Persons Act (RLUIPA ...

COPS Program Fails To Arrest Crime, Funding Improprieties

by Michael Rigby

Police chiefs and politicians across the nation have hailed the Community Oriented Policing Services (COPS) program as largely responsible for the sharp drop in crime that began in the mid-1990s, USA Today recently reported. But now--10 years and $10 billion later--a more accurate and far less flattering picture has emerged: Hundreds of millions of misspent dollars, tens of thousands of unfilled positions, and little evidence to suggest that COPS played any significant role in reducing crime.

In the 1990s, the COPS program was touted by the Clinton administration as a way to combat crime by putting 100,000 additional cops on the streets. Since then, the program has provided 12,000 police agencies with $10 billion in grants to hire new officers and redeploy others. Much of the money, however, was apparently misused. Audits conducted by the Justice Departments inspector general of just 3% of all COPS grant recipients found $277 million in questionable spending.

Many police departments simply used the money to cover routine expenses. In Albuquerque, New Mexico, for instance, federal auditors found that $7.5 million of the citys $12 million in COPS grants were used not to hire new cops but to offset ...

Withholding Legal Mail States Legal Access Claim

by Bob Williams

The United States Court of Appeals for the Tenth Circuit has held that withholding legal mail while a prisoner is out to court states a colorable claim for denial of legal access because it impedes efforts to pursue litigation.

Kansas state prisoner Willie Simkins was transferred from the Hutchinson Correctional Facility (HCF) to a county jail in Boulder, Colorado in March 2000. After his return in March 2001, Simkins discovered that his legal mail had been held by HCF mailroom guards pending his return. The withheld mail included a summary judgment motion filed in April 2000 against Simkins in a federal conditions of confinement case stemming from conditions at the Saline County, Kansas jail. Since Simkins could not contest the motion without notification, his suit was dismissed in July 2000 on summary judgment and the defendants factual allegations stood admitted. By the time of his 2001 return to HCF, Simkins could no longer appeal the loss.
Simkins then filed a 42 U.S.C. § 1983 complaint against HCF for interfering with his right of access to the courts. The district court dismissed the suit, ruling that Simkins had not shown an associated injury sufficient to give him ...

Florida Closes Scandal Ridden Girls Facility, Takes Over Control of Another Juvenile Facility

Only five years after it was opened, legislators have shut down the scandal ridden Florida Institute for Girls (FIG) built at a cost of $7.9 million, FIG will remain empty until Floridas Department of Juvenile Justice (DJJ) decides if they can use it for another program. It will cost $18,000 a month to maintain the empty building.

FIG was constructed to handle the toughest girlsthose charged with crimes such as manslaughter, battery, carjacking, and rape. DJJ contracted with two private companies to run the facility. Both failed horribly to fulfill their contractual obligations.

Premier Behavioral Services lost its contract in 2004 when a Palm Beach County Grand Jury found it had scrimped on staff to save money, locking girls in the rooms, and forcing them to miss school, and activities because there werent enough guards to watch them. While Premier operated FIG, four teens arms were broken in violent restraints and three workers were arrested on charges of molesting or having sex with girls they were supposed to protect.

Lighthouse Care Centers made 83 of 84 improvements recommended by the grand jury. State monitors, however, found the company wasnt providing counseling and mental health programs required in his ...

Theft of Prisoners Book by Guards Valid Legal Basis for Texas Civil Suit

Theft of Prisoners Book by Guards Valid Legal Basis for Texas Civil Suit

A Texas court of appeals has held that a claim that two Texas state prison guards removed a law book from a prisoners cell and neither returned the book nor turned it over to the prisons inmate property officer was a valid claim under the Texas Theft Liability Act, Texas Civil Practice and Remedies Code, Chapter 134.

Paul Minix, a Texas state prisoner, filed suit in state court against two guards he claimed had taken a law book from his cell. The trial court dismissed the suit as frivolous for having no arguable basis in law. Minix appealed.

The court of appeals held that the Texas Theft Liability Act provides a legal basis for the claims against the guards who allegedly entered his cell and removed a book that belonged to him without justification and subsequently failed to either return it to him or turn it in to the prison property officer. Therefore, the trial court erred in dismissing the suit.
To the extent that Minix sued the guards in their official capacities, they were entitled to sovereign immunity. However, the guards were potentially liable in their ...

Nebraska Supreme Court Reverses Dismissal of Prisoners Drug Testing § 1983 Claim

Nebraska Supreme Court Reverses Dismissal of Prisoners Drug Testing § 1983 Claim

The Nebraska Supreme Court reversed a lower courts dismissal of a prisoners 42 U.S.C. § 1983 action, finding that he stated a cognizable claim for relief and sufficiently pleaded exhaustion of administrative remedies as required by 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act (PLRA).

Luke Kellogg, a prisoner of the Nebraska Department of Correctional Services (DCS), suffered from several medical conditions which prevented him from providing a urine sample within the given time period required [by] the DCS drug testing program. Thus, pursuant to Drug Offender Classification Policy Directive 00-013... he has been classified as a drug offender and disciplined several times, resulting in the loss of the time in suspension of telephone and visitation privileges.

Kellogg brought suit in state court, alleging that DCS discriminated against him by failing to provide reasonable accommodations for his disabilities, in violation of § 1983, the Americans with Disabilities Act of 1990 (ADA) and Neb.Rev.Stat § 20-148. Kellogg alleged that he exhausted available administrative remedies, and sought a temporary restraining order, injunctive and declaratory relief, restoration of good time and telephone and visitation privileges, and $1 ...

Fourth Circuit Reverses $35,934.66 Habeas Fee Award; Habeas Corpus Not Civil Action Under EAJA

Fourth Circuit Reverses $35,934.66 Habeas Fee Award; Habeas Corpus Not Civil Action Under EAJA

The Fourth Circuit Court of Appeals reversed a district courts award of $35,934.66 in attorneys fees, costs, and expenses under the Equal Access to Justice Act (EAJA), in a federal habeas corpus proceeding.

Joseph OBrien pled guilty in federal court to bank fraud and was sentenced to 24 months in prison. The court recommended that OBrien be allowed to serve his sentence in a halfway house. Instead of sending OBrien to prison, the Federal Bureau of Prisons [(BOP)] designated OBrien to serve his entire sentence at a halfway house.

Eleven months later the Department of Justice (DOJ) issued an opinion, concluding that the BOPs practice of placing certain offenders in halfway houses rather than a prison was unlawful under the U.S. Sentencing Guidelines and 18 U.S.C. §§ 3621 and 3622. Consistent with this opinion, the BOP redesignated OBrien to serve the remainder of his sentence in a federal prison camp.

Just before his transfer, OBrien commenced a federal habeas action under 28 U.S.C. § 2241, and the court issued a temporary restraining order precluding his transfer pending a hearing ...

Court Orders Mob Boss Released from SHU

A New York federal district court has ordered a federal pretrial detainee released from administrative detention into general population because the government had other means of preventing him from communicating with the members of his crime family.

Vincent Basciano moved pursuant to 28 U.S.C. § 2241 and the Bail Reform Act, 18 U.S.C. § 3142, to be removed from solitary confinement into general population. Basciano is under indictment for murder in aid of racketeering of Randolph Pizzolo and an uncharged conspiracy to murder a federal prosecutor. Basciano is alleged to be the acting boss of the Bonnano family.

After his arrest on November 19 until December 3, 2004, Basciano was held in reception and prohibited visitors or contact with other detainees. He was then released into general population and until January 8, 2005, when he was placed in Special Housing Unit (SHU). On March 13, 2005, Basciano was transferred from MDC-Brooklyn to the MCC facility in Manhattan.

Besides strict movement, 23-hour lockdown, and limited property privileges, Bascianos contacts with other human beings have been sharply curtailed. He received one social visit per week, was not permitted to speak to anyone in his cell, and his telephone privileges were ...

New York Jail Detainee Awarded $233,000 in Damages and Fees for Excessive Force Claim

by David M. Reutter

A New York federal district court reduced a jurys damage award in a prisoners civil rights action alleging excessive force by guards. The total award came to $165,000 and $68,000 in attorney fees and costs.
This action was brought against New Yorks Nassau County ...

Sixth Circuit PLRA Fee Set at $169.50 Not $135

The Sixth Circuit Court of Appeals joined the Ninth Circuit in holding that the maximum allowable attorney fees under the [Prison Litigation Reform Act (PLRA)] should be based on the amounts authorized by the Judicial Conference, not the amount actually paid to the court-appointed council under the CJA. That is $169.50 (150% of $113) rather than $135 (150% of $90).

In 1980, Michigan prisoners brought suit alleging various constitutional violations. The parties entered into a consent decree, which was approved by and made an order of the federal district court....[T]o this day, 24 years after the suit was filed, the plaintiffs attorneys are still monitoring the defendants compliance with the decree and, by order of the district court, are still being paid attorney fees.

Pursuant to 42 U.S.C. § 1997e(d)(3) of the PLRA, the plaintiffs attorney fees are capped at 150 percent of the hourly rate established under section 3006A of Title 18 for payment of court-appointed council. &Section 3006A, also known as the Criminal Justice Act (CJA) establishes the maximum allowable fees for court-appointed council representing indigent defendants in federal criminal cases and authorizes the Judicial Conference of the United States to increase ...

Qualified Immunity on FRCP 12(b)(6) Motion Faces Formidable Hurdle in Hepatitis Case

Qualified Immunity on FRCP 12(b)(6) Motion Faces Formidable Hurdle in Hepatitis Case

The Second Circuit Court of Appeals upheld a lower courts denial of a Fed.R.Civ.P. 12(b)(6) motion to dismiss, asserting a qualified immunity defense. The court held that a qualified immunity defense can be presented in a Rule 12(b)(6) motion, but that the defendant faces a formidable hurdle when advanced on such a motion.

New York Department of Correctional Services (NYDOCS) prisoner Edward McKenna suffers from the hepatitis C virus (HCV). In 1994, tests indicated some symptoms of HCV but he was not tested for the disease, despite several risk behaviors.

In 1998, McKenna was transferred to Woodbourne Correctional Facility, but not tested for HCV, although it was NYDOCS policy to test all those entering a new facility... In 1999, McKenna was [finally] tested, and... told... that he had HCV.

In September 1999, McKenna was denied HCV treatment because another NYDOCS guideline that prohibited treatment for those who would not remain incarcerated or would be released twelve months after treatment began. Although McKenna had four more years to serve, he had a Parole Board appearance scheduled in just under one ...

Washington Settles Prisoners Medical Indifference Suit for $370,000

Washington Settles Prisoners Medical Indifference Suit for $370,000

by Michael Rigby

In October 2005, the State of Washington settled for $370,000 a prisoners federal lawsuit in which he alleged that indifferent medical treatment proximately resulted in a stroke that left him permanently disabled. The settlement was reached after ...

News in Brief

News in Brief:

Alabama: On March 2, 2005, Ellis Hudson, 40, was arrested on trespassing charges for breaking into the Bullock County jail in Union Springs. Hudson was apparently trying to smuggle tobacco to jail prisoners, which is banned.

Arizona: On March 8, 2006, an unidentified Maricopa county sheriffs deputy was stabbed by a prisoner in the county courthouse while escorting the prisoner to court. The deputy was not seriously injured.

Arkansas: On May 6, 2005, Xavier Livingston, a guard at the federal prison in Forrest City was arrested by FBI agents and charged with attempting to smuggle unspecified contraband into the prison and accepting bribes.
California: On February 10, 2005, Lloyd Wiatt, 61, a Los Angeles county superior court judge shot and killed himself at a park in Valencia after being questioned by police on allegations that he had molested a child.
California: On July 10, 2005, Nicholas Rodriguez, 27, a prisoner awaiting execution on death row in San Quentin accidentally overdosed on heroin and died. Michael Camacho, the Los Angeles deputy prosecutor who prosecuted Rodriguez for three homicides said the overdose did not surprise him. The accessibility of narcotics is rampant in the Department of Corrections, even though ...

Ninth Circuit Reverses Dismissal of ADA Suit for Failure to Exhaust

The Ninth Circuit Court of Appeals held that a district court erred in dismissing a California prisoners suit for failing to exhaust administrative remedies under 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act, (PLRA).

Earl Butler, a blind prisoner, was confined at the California Substance Abuse Treatment Facility in State Prison in Corcoran California. While there, Butler received no assistance with or accommodation of his vision impairment. There was no a Braille program or railings he could use. This resulted in Butler repeatedly injuring himself as he attempted to move throughout the prison.

On August 28, 2001, Butler completed a form entitled Reasonable Modification or Accommodation Request, seeking assistance in performing all his everyday functions, such as getting to and from the dining room, or library, reading correspondence or posted memorandums.

In September 2001, prison officials denied Butlers request, stating that it was his responsibility to request assistance from staff. Butler then appealed to the second level of review, stating, I am totally blind; asserting that he was denied the benefits and services of 42 U.S.C. § 12102; and repeating his request for reasonable accommodation. His request was again denied and Butler appealed to the ...


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