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Prisoner Education Guide

Prison Legal News: April, 2006

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Volume 17, Number 4

In this issue:

  1. Georgia Prisons: A Blight On The Peach State (p 1)
  2. Texas Counties Set To Raid State Prisoners Trust Fund Accounts (p 7)
  3. From the Editor (p 8)
  4. Colorado DOC s Medical Oversight Found Remiss (p 8)
  5. Former Georgia Parole Chairman Loses Appeal of Corruption Conviction (p 10)
  6. CSC Pays Public Defender Social Worker $125,000 for Rape in Juvenile Facility (p 10)
  7. Weary California Prison Gang Members Increasingly Opt Out for Solace of Sensitive Needs Yards (p 11)
  8. Cell-Block Beatdown: Do Boston Prisoners Have Any Chance of Holding Abusive Prison Guards Responsible? Signs Are Not Promising (p 12)
  9. Continued Reliance on Commitment Offense to Deny California Lifers Parole Denies Federal Due Proces (p 15)
  10. PHS Pays $350,000 to Settle Claim for Over-Medication Death of Florida Jail Prisoner (p 16)
  11. Petty Stone Cold Kickbacks KO Government Employees Nationwide (p 16)
  12. Dismissal of Medical and Retaliation Claims Reversed (p 17)
  13. Georgia Legislature Awards Wrongly Convicted Man $1 Million (p 17)
  14. Minnesota County Settles Suit over Untreated Appendicitis for $225,000 (p 17)
  15. State Auditor Blasts Colorado DOC's Private Prison Oversight Failures (p 18)
  16. California DOC Settles Racially Determinative Housing Suit (p 20)
  17. Phoenix, Arizona, Settles Krone Wrongful Imprisonment Suit for $3 Million (p 20)
  18. Michigan Jails Strip Policy Unconstitutional; Guards and Get Qualified Immunity, County Liable (p 21)
  19. Severely Beaten L.A. County Jail Prisoner Wins Only $5,000 (p 21)
  20. Utah Jail Policy Banning Subscriptions to Magazines and Newspapers Enjoined; Fees Awarded (p 22)
  21. Californias 2005 Prison Suicide Rate Doubles Over 2004 (p 22)
  22. NYDOCS Abandons ADA DOJ Exhaustion Defense (p 23)
  23. Alabama Work Release Prisoners Reclassified Following Escapes (p 23)
  24. Exhaustion Not Required in Pennsylvania Parole Denial Challenges (p 24)
  25. Eighth Circuit Upholds Denial of Compensatory/Punitive Damages; Physical (p 24)
  26. New York Prisoner Awarded $2,250 For Wrong Medication (p 25)
  27. Repercussions from Georgia Courthouse Escape, Shootings Continue (p 26)
  28. L.A. County Jail Gets $20,000 from State for Pruno-Sniffing Dogs; Inmate Welfare Funds Tapped to Mai (p 27)
  29. $1.1 Million FTCA Emotional Distress Award In BOP Suicide Death Upheld, Even Though Murder By Guar (p 28)
  30. Alabama Diabetic Prisoner Stomped On and Retaliated Against by Guard Awarded $20,000 (p 29)
  31. PLRA Doesnt Bar FRCP 15(a) Amendment of Complaint - No HIV/Hepatitis Treatment = Imminent Danger o (p 30)
  32. Ohio Man Awarded $618,000 for Nearly 16 Years Wrongful Imprisonment (p 30)
  33. PLRA Doesnt Alter FRCP 23 Class Certification Analysis (p 31)
  34. No Qualified Immunity on Toothpaste, Inhaler & Ventilation Claims (p 32)
  35. Appointment of Counsel Satisfies Access to Courts Requirement (p 32)
  36. Seventh Circuit Reverses Jail Lockdown Dismissal; Day After Christmas = Legal Holiday (p 34)
  37. Missouri's 5-Year Limitation Period Applies to § 1983 Claims; 8th Circuit Reverses Earlier Decision to Contrary (p 34)
  38. $1,250 Settlement in Oregon Retaliation, Court Access Claims (p 35)
  39. On Remand From Supreme Court, Sixth Circuit Reverses Judgment on Guard Retaliation Claim (p 36)
  40. Washington Prison Staff Properly Fired For Sexually Assaulting Prisoner (p 36)
  41. Any Reliance On AA or NA Participation During Parole Consideration Violates Establishment Clause (p 37)
  42. California Probationers and Parolees Not Similarly Situated As To Eligibility For Prop. 36 Drug Tr (p 38)
  43. Dismissal of Bivens Action for Non-Exhaustion Reversed (p 38)
  44. Sixth Circuit Requires Total Exhaustion Under PLRA; Decision Conflicts with Hartsfield (p 39)
  45. Washington Appeals Court Reverses the Dismissal of a Slip-and-Fall Negligence Action; State Responsi (p 40)
  46. Fair Labor Standards Acts Minimum Wage Provision Not Applicable to Private Prisons (p 40)
  47. 2nd Circuit Reverses Sua Sponte § 1915 Dismissal; Parolee Owed Duty of Habitable Residence (p 41)
  48. News in Brief (p 42)
  49. Prisoner Suit Alleging Sexual Assault By Colorado Sheriffs Staff Reinstated (p 44)

Georgia Prisons: A Blight On The Peach State

During the Civil War, General William Tecumseh Shermans devastating march through the South was a blight on Georgia and all who lived there. Today, the safety of many Georgians particularly the 50,000 confined in the states 37 prisons is just as precarious.

At one state prison guards are accused of routinely beating handcuffed prisoners. Nine guards have been fired and several officials, including the warden, have left their jobs. At another facility a prisoner died after
guards forcefully removed him from his cell. One guard was fired and another resigned in that incident.

The Georgia Department of Corrections (GDOC) faces other problems as well. The prison commissioner is under fire for, among other things, soliciting funds from prison commissary vendors, and prison officials are struggling to determine how three prisoners on death row acquired escape supplies and tools that they used to saw through air vents in their cells. Prison officials have also been criticized for not reporting the murder of a prisoner until two days after his funeral, hobbling the criminal investigation.

Prisoners Murder Unreported

Christopher Southerland was not a violent man, but he died a violent death in the mental health unit of Rutledge State Prison in ...

Texas Counties Set To Raid State Prisoners Trust Fund Accounts

Texas Counties Set To Raid State Prisoners Trust Fund Accounts

by Matthew T. Clarke

Partially in response to legislation making it mandatory by 2007 for Texas counties to establish programs to collect fines, costs, restitution and fees from Texas state prisoners and partially on their own, several Texas counties have began recovering money for fines, court costs, court-appointed attorney fees and restitution from state prisoners trust fund accounts.

In the past, frequent practice by district attorneys in Texas seeking lengthy felony sentences was for them to tell the jury to forget fining the defendant. This was primarily because it has always been assumed that indigent prisoners couldnt pay the fines anyway. Now, in a new wave of what some would call fiscal responsibility and others would label sheer meanness, Texas counties are moving to collect fines and other costs from Texas prisons families and friends by attaching part of the money the families and friends send to the prisoners trust fund accounts.

Except for a few privileged prisoners in a small experimental prison labor program involving private companies, Texas prisoners are not paid for their labor. Most frequently they come to prison indigent and remain that way until they leave ...

From the Editor

Welcome to another issue of PLN. Readers may have noticed that we have kicked off PLNs annual subscription madness campaign where we allow folks to purchase multiple gift subscriptions for people who are not current PLN subscribers. This is a great way to let people know about PLN. If you know someone who is interested in criminal justice issues, whether a prisoner, legislator, journalist, judge, concerned citizen or family member of a prisoner you should consider getting them a free gift subscription.
As I mentioned last month, we are undertaking a big campaign to boost our circulation. Our goals in building our circulation are several. One is to reach more non-prisoners to let them know what is happening in American prisons and jails. Second is to let activists, lawyers and prisoners know about the struggles and victories around the country to better wage their own local struggles and building PLNs circulation from our current 4,600 subscribers will help us keep subscription costs down as it lowers the per issue cost even as postage and printing costs continue to rise.

Current subscribers can help us keep costs down by letting us know immediately when they are moved. The post office ...

Colorado DOC s Medical Oversight Found Remiss

An independent auditor found the Colorado Department of Corrections (CDOC) to be lax in its oversight of medical care contractors.
In April 2005, Navigant Consulting, Inc., reported the results of its audit, commissioned by the Colorado State Auditor, of the CDOC external health care services provided to prisoners. The audit examined the rates paid to external care providers, administration of the utilization management program, and the CDOCs oversight of its external care contractor. It did not examine the quality of care provided to prisoners, the facilities, the credentials of the personnel providing the care, or the appropriateness of medical care provided to any prisoner. Navigant concerned itself only with fiduciary matters. If it had looked deeper, as did other auditors, it likely would have found more problems than it did.
Another state audit of the five private prisons in Colorado found lax oversight, The Denver Post reported. None of the private prison medical clinics were licensed by the state. The CDOC had not inspected any of the clinics from May 2003 to December 2004. Two prisoner deaths may have been caused by medication changes ordered by private prison doctors who had not even examined the prisoners. [See accompanying story.]

The ...

Former Georgia Parole Chairman Loses Appeal of Corruption Conviction

by Gary Hunter

Former Georgia parole board chairman Bobby K. Whitworth launched a last-ditch attempt, in the Georgia Court of Appeals, to thwart his felony conviction for corruption. He failed.

Whitworths tenure with the Georgia prison system is replete with scandal. His eventual prosecution stemmed from a $75,000 payment he received from his close friend Lansome Newsome shortly after the Georgia legislature approved Senate Bill 474 which effectively transferred supervision of about 25,000 misdemeanor offenders to Detention Management Services, Inc. (DMS). Newsome, the owner of DMS, subsequently sold the company for a multi-million dollar profit to Sentinel Offender Services.

A jury found Whitworth guilty of abusing his office, an offense that carries from one to five years. Whitworths appeal centered completely around trial error and avoided issues of his own culpability. The former chairman accused special prosecutor Tom Morgan of misconduct for failure to recuse himself for a conflict of interest; he maintained that Morgan should have been disqualified by the court for illegal contact with a former prosecutor.

Whitworths illegal dealings first surfaced when Linda Thompson, a former parole board employee, learned of the transaction between her boss and Newsome. When she voiced her concerns about legal ...

CSC Pays Public Defender Social Worker $125,000 for Rape in Juvenile Facility

A former social worker with the Baltimore public defenders office in Maryland, who said she was raped by a 15-year-old boy she was a visiting at the Charles H. Hickley, Jr. School settled a civil lawsuit on March 28, 2005, against the corporations that ran the juvenile detention center.
Amy Bibighaus, 29, went to the Hickley School on February 12, 2002, to evaluate juvenile delinquents and make recommendations about punishment. One of the juveniles she saw was a 15-year-old boy who was being housed in isolation after being found delinquent in an armed robbery case. According to the lawsuit, the teenager had proven to be an assaultive disturbance within the school and had demonstrated a propensity toward sexually aggressive behavior in the violence, including the sexual assault of a Hickley staff member.

After the teenager asked the attorney accompanying Bibighaus to leave the room so he could talk to the social worker, he propositioned Bibighaus. When she tried to leave the small office, a malfunctioning lock prevented her from being able to escape, and the absence of attentive Hickley staff members kept anyone from noticing the attack that turned into a rape.
Hickley staff members called state police after one ...

Weary California Prison Gang Members Increasingly Opt Out for Solace of Sensitive Needs Yards

Weary California Prison Gang Members Increasingly Opt Out for Solace of Sensitive Needs Yards

Imprisoned California gang members are increasingly tiring of doing hard time to satisfy gang leaders demands to enforce dogmatic, self-serving obeisance to the perpetuation of in-prison violence. Today, 13,000 California Department of Corrections and Rehabilitation (CDCR) prisoners (8%) are housed in protective custody (PC) sensitive needs yards (SNY), with a waiting list of 1,400 more.

Formerly the sole realm of child molesters, rapists and snitches, protective custody is being increasingly requested by members of prison gangs who wish to drop out of the life of stabbings, retribution and hit lists. Under the rules of many such gangs, opting out is an automatic death sentence. But with many such gangsters now doing life sentences for killings they only did under orders, the specter of doing the rest of their lives under constant fear and pressure from gang leaders, and therefore enduring the harshest of prison conditions, is getting old.
Gang warfare has been legion in California prisons for almost 40 years, when an argument at Soledad State Prison began the rift amongst Latinos that today is manifested in the Norteño (Northerner) and Sureño (Southerner) schism ...

Cell-Block Beatdown: Do Boston Prisoners Have Any Chance of Holding Abusive Prison Guards Responsible? Signs Are Not Promising

Cell-Block Beatdown: Do Boston Prisoners Have Any Chance of
Holding Abusive Prison Guards Responsible? Signs Are Not Promising

by David S. Bernstein

Stories about prison guards beating up prisoners arent exactly the rage these days people are more likely to get outraged over lax treatment of prisoners, like the flap about the Massachusetts Department of Correction allowing convicted murderers to hold a Christmas party.

But, no matter what one thinks incarceration should look like, it should not include sadistic beatings of subdued and shackled prisoners, or the deliberate withholding of needed medication or medical treatment. And thats what many prisoners say occurred, repeatedly, within the walls of the South Bay House of Correction in the late 1990s.

That is also the finding of a state commission report from 2002, which found reported incidents of physical abuse and sexual misconduct, while not widespread, were egregious at the deeply troubled institution. And now, no fewer than 55 former prisoners are suing the Suffolk County Sheriffs Department, which runs South Bay, for these types of abuses.
South Bay, a sleek, modern, seven-building complex built in 1991 to replace the notoriously antiquated Deer Island facility, houses prisoners serving sentences of up to two and ...

Continued Reliance on Commitment Offense to Deny California Lifers Parole Denies Federal Due Proces

Continued Reliance on Commitment Offense to Deny California Lifers Parole Denies Federal Due Process

by Marvin Mentor

The U.S.D.C. (E.D. Cal.) granted habeas relief to a California lifer whose parole had been repeatedly denied based upon the commitment offense, and ordered the California Board of Parole Hearings (BPH) to release him to parole. But because the decision issued five days before a contrary, controlling state-court interpretive decision on Californias lifer parole statutes issued, the decision is subject to serious appellate challenges.
Carl Irons was convicted of second degree murder when he became angered at a roommate, shot him twelve times with a rifle, then stabbed him twice with a buck knife and kept the body in the apartment for ten days. Thereafter, he wrapped the body in a blanket, covered it with chicken wire, tied weights to it and drove it to the ocean where he threw it in the water.
Irons was denied parole at his fifth BPH hearing in 2001 principally because of the gravity of the offense. The Marin County Superior Court denied his habeas petition, finding that there was some evidence in the record to support the Boards conclusion. Higher state courts ...

PHS Pays $350,000 to Settle Claim for Over-Medication Death of Florida Jail Prisoner

Prison Health Services (PHS) has, once again, entered into a pretrial settlement to pay the family of a prisoner who died from the negligent care provided by PHS at Floridas Leon County Detention Center (LCOC).
The parents of a Ruth Hubbs brought this action in Leon County Circuit Court, but ...

Petty Stone Cold Kickbacks KO Government Employees Nationwide

by Mark Wilson

Stone Cold Chemicals, (SCC), sells cleaning products to government agencies, and it is really cleaning up.

Company founder Thomas Stone admits to training his sales force to offer premiums (i.e., bribes and kickbacks) to government purchasing agents to induce them to buy SCC products at grossly inflated prices of up to twelve times their actual value. SCC then recorded the corrupt public workers and each premium paid on a catch report; and catch them it did when SCC officials agreed to testify against the public officials who refused to plead guilty to criminal wrongdoing.

SCC induced 21 year Maryland Department of Corrections employee Vivian Odom into making approximately $6,000 in purchases, including drain opener at $26 a bottle and de-icer at $20.97 per can. Odom also ordered paper towels called Wipeouts at $477 plus shipping while a Wipeouts company official was prepared to testify that sells the towels for one-ninth that price. SCC officials acknowledge routinely doubling the cost of shipping and using the money to fund the Companys health and dental plan.

Invoices show multiple purchases of the same product at about the same time. Between June 20 and 30, 2003, SCC billed ...

Dismissal of Medical and Retaliation Claims Reversed

The United States Court of Appeals for the Fourth Circuit, in an unpublished opinion, has reversed a lower courts dismissal of deliberate indifference claims in a prisoners denial of medical treatment for hepatitis C plus pancreatic and gout disorders. The Court further reversed the dismissal of a retaliation claim for contacting a fellow prisoners mother.

Michael Moore, a North Carolina state prisoner, filed a 42 U.S.C. § 1983 complaint alleging deliberate indifference in his medical care for a host of problems including hepatitis C, a pancreatic condition, gout in his hand, and others. Moore also claimed he was retaliated against for contacting the mother of another prisoner who was severely beaten by guards. Moores complaint also included claims of cruel and unusual punishment in conditions of confinement and lack of due process in classification.

The United States District Court for the Eastern District of North Carolina dismissed the complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2).
On appeal, the Fourth Circuit, accepting Moores allegations as true and drawing all reasonable factual inferences in his favor, reviewed his complaint de novo. Finding Moore alleged medical harm sufficient to establish deliberate indifference to his serious medical needs ...

Georgia Legislature Awards Wrongly Convicted Man $1 Million

In its 2005 session, the Georgia Legislature awarded Clarence Harrison $1 million for loss of liberty, personal injury, lost wages, injury to reputation, emotional distress, and other damages as a result of his nearly 18 years of incarceration and expenses and trying to prove his innocence.
Harrison was convicted on June 26, 1987, and a sentenced to life in prison for rape and 20 years each for kidnapping and robbery to run consecutive to the life sentence. His conviction stemmed from the October 25, 1986, attack of a woman walking to a bus stop in Decatur, Georgia. The woman was grabbed from behind, struck on the head, and dragged to an unknown location where she was sexually assaulted. She was dragged to two other unknown locations, again sexually assaulted, and her wristwatch was stolen.

After his November 5, 1986, arrest, Harrison maintained his innocence. At trial, the victim identified Harrison from a photograph lineup and a witness who lived in the neighborhood where the attack occurred identified Harrison, as a man who had come to her door on the evening of the attack and circumstances suggested to her he was the assailant.

In September 1998, Harrison sought DNA testing. The ...

Minnesota County Settles Suit over Untreated Appendicitis for $225,000

On August 25, 2005, the U.S. District Court for the District of Minnesota approved a $225,000 settlement to a Minnesota prisoner whose appendicitis went untreated at the Douglas County Jail.

Jeremiah Bratsch, 21, suffered stabbing pains in his lower right abdomen for four days while at the jail ...

State Auditor Blasts Colorado DOC's Private Prison Oversight Failures

by Matthew T. Clarke

In June 2005, the Colorado State Auditor released its April 2005 report of the performance audit of private prisons contracted by the Colorado Department of Corrections. The report strongly criticized the private prisons performance and the lack of oversight by the DOCs monitors.


The DOC uses six private prisons. Three medium-security private prisons in Colorado are operated by Corrections Corporation of America (CCA) as is one maximum-security prison in Tallahatchie County, Mississippi. The CCA prisons all house male prisoners. One medium-security private prison for female prisoners, in Brush, Colorado, is owned and operated by Tennessee-based GRW Corporation. It was the site of recent sexual assault and drug scandals that caused Hawaii and Wyoming to withdraw their prisoners from the facility. One of the CCA prisons, Crowley County Correctional Facility (CCCF), recently experienced a riot that the DOC blamed on the lack of experience and poor training of CCA guards. [PLN, Jan. 2005, pp. 26, 31]. The auditors found the lowest staffing ratio at CCCF. The monitors failed to conduct a security or emergency activation audit at CCCF prior to the riot.

The method by which the private prisons are contracted is odd. The DOC contracts with ...

California DOC Settles Racially Determinative Housing Suit

by John E. Dannenberg


Upon remand from the U.S. Supreme Court (Johnson v. California, 125 S.Ct. 1141 (2005)), the California Department of Corrections and Rehabilitation (CDCR) entered into a settlement agreement with plaintiff prisoner Garrison Johnson wherein CDCR agreed to end using race as the sole determinative criterion ...

Phoenix, Arizona, Settles Krone Wrongful Imprisonment Suit for $3 Million

The city of Phoenix, Arizona, will pay $3 million to settle a lawsuit brought by a man who spent more than a decade in prison for a murder he did not commit. The settlement, approved by the city council in September 2005, is the second Ray Krone has received. In ...

Michigan Jails Strip Policy Unconstitutional; Guards and Get Qualified Immunity, County Liable

Michigan Jails Strip Policy Unconstitutional; Guards and Get Qualified Immunity, County Liable

by David M. Reutter

A Michigan federal district court has held that the practice of removing the clothing of unruly pretrial detainees and keeping them naked in the hole, violated the Fourth and Fourteenth Amendments, but held the defendants were entitled to qualified or absolute immunity in their individual capacity.

This action was brought by 22 former detainees of the Saginaw County Jail, suing Sheriff Charles Brown, various individual guards, and Saginaw County. The suit challenged the Jails practice of holding uncooperative and disruptive detainees in administrative segregation cells; and jail personnel would take all of the clothing from such detainees so that they were naked for the time they spent in administrative segregation.

The policy of removing clothes was applied without regard to the nature of the offense for which the detainees were held and in the absence of any individualized suspicion of drugs, weapons, contraband, or threat of suicide. Here, each of the plaintiffs were held on misdemeanor charges.
If a detainee failed to comply with orders to remove his or her clothing prior to placement in the administrative segregation cell, force was administered to remove ...

Severely Beaten L.A. County Jail Prisoner Wins Only $5,000

A Los Angeles (L.A.) County, California jail prisoner who was severely beaten by three other prisoners on three occasions sued for deliberate indifference in failing to protect him. On August 3, 2005, after a five day trial and seven hours of deliberations, a federal civil jury found against jail ...

Utah Jail Policy Banning Subscriptions to Magazines and Newspapers Enjoined; Fees Awarded

by John E. Dannenberg

On June 2, 2004, the United States District Court (D. Utah) ruled that the Salt Lake County Jails (SLCJ) policy prohibiting prisoners receipt of any magazine or newspaper was unconstitutional. Brian Barnard, the persistent attorney, who fought the case for eleven years, was granted $28,374 ...

Californias 2005 Prison Suicide Rate Doubles Over 2004

Californias 2005 Prison Suicide Rate Doubles Over 2004

by John E. Dannenberg

By the time 2005 ended, 44 California state prisoners had committed suicide. A significant increase over the 26 suicides that occurred in 2004. The California Department of Corrections and Rehabilitation (CDCR) suicide rate is currently running at 27 deaths per 100,000 prisoners, compared with 14 per 100,000 nationally. The general community suicide rate is 11 per 100,000. CDCR spokesperson Terry Thornton commented that the rate in 2004 was only 16 per 100,000 and that the number of suicides fluctuates widely. But lawyers representing the estimated 26,000 seriously mentally ill California prisoners say that this is a problem that has been building for years.

Aggravating problems they cite include a security classification system that counts mental illness as a security danger, which automatically routes the mentally ill to tougher prisons where they are housed with more violent cellmates and receive reduced privileges and amenities plus lots of lockdown time. Attorney Tom Nolan said, Youre pretty isolated, and for people who are suicidal you want as much human interaction as possible.
Two years ago, CDCR terminated its policy of stationing a guard in front of ...

NYDOCS Abandons ADA DOJ Exhaustion Defense

Upon the request of prison officials, the Second Circuit Court Of Appeals vacated a district courts dismissal of an action brought by New York prisoners, for failure to exhaust administrative remedies.

Several of New York State Department of Correctional Services (DOCS) prisoners brought suit in federal court, alleging violations of the Americans with Disabilities Act (ADA) and the federal Rehabilitation Act, (RA).

The district court dismissed the action pursuant to 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act for failure to exhaust available administrative remedies. The court reasoned that dismissal was proper because while plaintiffs exhausted internal prison grievance procedures, they had not lodged a complaint with the Department of Justice (DOJ)[,] as authorized by 42 U.S.C. § 12134(a) and 28 C.F.R. 35.170-178.

In an apparent attempt to avoid a published opinion on the issue, prison officials moved on appeal to vacate the District Courts order asserting that they wished to withdraw the DOJ exhaustion defense in any and all pending litigation in which liability against DOCS and its agents is asserted under the ADA[.] DOCS represented that it did not... intend to assert the defense in any... future litigation. Plaintiffs ...

Alabama Work Release Prisoners Reclassified Following Escapes

In late September 2005, 275 minimum-security Alabama prisoners were moved from work camps to maximum-security prisons pursuant to an order by Governor Bob Riley. The prisoners had done nothing wrong. The move was purely reactionary following the escape of 3 prisoners in 4 months.
The escaped prisoners had all been convicted of murder. Carl Brad Ward was captured on September 29, 2005. As of October 4, 2005, two of the escapeesHerman Adkinson and Frank Buchanan Jr.--were still at large.

Wards escape drew the most criticism. He had been denied parole in April due to victim protests and wasnt to be reviewed again for 5 years. Prison policy dictates that Ward should have been housed inside the prison fence, but a special approval process allowed him to keep working at a state-owned warehouse outside the Elmore Correctional facility.

Following the public outcry, Riley ordered all prisoners convicted of murder, manslaughter, or criminaly negligent homicide back inside the prison fences. Jason Dudley, a 29-year-old prisoner who has spent most of his 10 years in prison at minimum-security work camps, was one of those affected by Rileys decision. A decade earlier Dudley had been drinking and driving recklessly when his friend was ...

Exhaustion Not Required in Pennsylvania Parole Denial Challenges

The Third Circuit Court Of Appeals held that a Pennsylvania state prisoner challenging the denial of parole need not file a petition for a writ of mandamus in order to satisfy the dictates of exhaustion before seeking federal habeas review.

Pennsylvania prisoner Robert DeFoy was convicted of armed robbery and served 10 years before being released. He was subsequently recommitted on a technical parole violation and served an additional 18 months before being re-paroled.

While on parole... the second time, DeFoy was arrested for involuntary deviate sexual intercourse, statutory rape and corruption of a minor. Despite protesting his innocence, he was convicted and sentenced to 78-156 months in prison. The court also revoked his parole on the armed robbery sentence and ordered him to serve an additional forty months imprisonment for that offense. The judge then recommended that DeFoy participate in Pennsylvanias Sexual Offender Treatment Program.

Because DeFoy was unwilling to admit he committed the sex offenses,... he was precluded from participating in a Program. In turn, he was twice denied parole while serving the armed robbery sentence because he had not participated in the Program.

DeFoy attempted to challenge the parole denials on direct appeal in state court but ...

Eighth Circuit Upholds Denial of Compensatory/Punitive Damages; Physical

Injury Required in First Amendment Cases

In a 2-1 decision, the Eighth Circuit of Appeals held that the Prison Litigation Reform Acts (PLRA) emotional injury bar on compensatory damages of 42 USC § 1997e(e) applies to First Amendment cases. The court upheld a lower courts denial of compensatory and ...

New York Prisoner Awarded $2,250 For Wrong Medication

On February 22, 2005, a court of claims in Rochester, New York, awarded $2,250 to a state prisoner who was given the wrong medication for nearly two years while imprisoned at the Collins Correctional Facility.
On October 14, 1999, prisoner Nathan Baxter went to the prison pharmacy to have ...

Repercussions from Georgia Courthouse Escape, Shootings Continue

Inadequate security, which had existed for years at Georgia's Fulton County Courthouse, as well as lapses by Sheriff's deputies, are being blamed for the deadly March 11, 2005 escape of Brian Nichols. PLN has previously reported on the many problems afflicting the Fulton County Jail. Nichols' violent breakout that left a judge, court stenographer, Sheriffs deputy and federal agent dead is merely the latest in a long story of mismanagement, corruption, brutality and incompetence.

Several weeks prior to Nichols' escape, his mother had warned that he might grab a gun if he thought he would be found guilty in his trial on rape and other felony charges. And just two days before his deadly rampage, Nichols had smuggled homemade shanks into the courthouse, only to be caught on his way back to jail. As a result, Lt. Gary Reid agreed to provide extra security in Superior Court Judge Rowland Barnes' courtroom. On the morning of March 11, however, Reid called in sick so he could visit his son's school, and Deputy Cynthia Hall, who had 17 years experience with the Sheriff's office, took Nichols from the courthouse basement to an eighth floor holding cell. Once there ...

L.A. County Jail Gets $20,000 from State for Pruno-Sniffing Dogs; Inmate Welfare Funds Tapped to Mai

L.A. County Jail Gets $20,000 from State for Pruno-Sniffing Dogs; Inmate Welfare Funds Tapped to Maintain Program

On September 30, 2005, the Los Angeles (L.A.) County Board of Supervisors approved a Sheriffs funding request for $20,000 to purchase and train two pruno sniffing puppies and to pair them with Sheriffs deputies. The Boards action accepts initial funding from the State of California Department of Alcoholic Beverage Control (ABC) for the stated purpose of deterring the illegal production and consumption of alcohol in the jails.
Citing an unacceptable level of risk to inmates ... contributing ... to violence in the jails, the Sheriff pled his case to get state funds to use dogs to find the pruno. The dogs are trained to sit down next to a find. But there is a kicker in the plan. Sheriff Leroy Baca stated in his October 18, 2005 funding request memorandum to the Board that the Department and Inmate Welfare Commission will fund all ongoing and additional costs associated with operating this program. Thus, it appears that funds collected from profits on prisoners purchases of canteen, which are designated for books, basketballs and the like, will be permanently diverted to cover the ...

$1.1 Million FTCA Emotional Distress Award In BOP Suicide Death Upheld, Even Though Murder By Guar

$1.1 Million FTCA Emotional Distress Award In BOP Suicide Death Upheld, Even Though Murder By Guards Suspected

by John E. Dannenberg

The Tenth Circuit U.S. Court of Appeals upheld a $1.1 million award under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80 for intentional infliction of emotional distress on the surviving family of a prisoner who allegedly committed suicide in BOP custody. The distress derived from an unauthorized and unannounced autopsy, alleged BOP cover-up of the death scene (which the surviving family believed pointed to murder, not suicide) and misinformation about facts surrounding the death that aggravated the suffering of the family. (PLN has reported extensively on this case since 1995.)

Kenneth Trentadue, on federal parole in 1995 after doing a term for bank robbery, was arrested in California on a DUI charge and returned to custody at the Federal Transfer Center in Oklahoma City. There, after two days, he requested and received protective custody housing. At 2:38 a.m. the following morning, he was observed asleep during a routine cell check. Twenty-three minutes later, on another sweep, he was found hanging from sheets tied to an air vent, with considerable ...

Alabama Diabetic Prisoner Stomped On and Retaliated Against by Guard Awarded $20,000

by John E. Dannenberg

A diabetic Alabama prisoner lying on the floor of his cell due to suffering from his diabetes condition had his leg stomped on by a guard. When the prisoner grieved the abuse, another guard filed a phony disciplinary report against him. Proceeding pro se, the prisoner ...

PLRA Doesnt Bar FRCP 15(a) Amendment of Complaint - No HIV/Hepatitis Treatment = Imminent Danger o

PLRA Doesnt Bar FRCP 15(a) Amendment of Complaint - No HIV/Hepatitis Treatment = Imminent Danger of Serious Physical Injury

In a case of first impression, the Eleventh Circuit Court of Appeals held that the Present Litigation Reform Act (PLRA) does not bar a prisoner, proceeding in forma pauperis, from amending his complaint under Fed.R.Civ.P. 15(a).

John Ruddin Brown entered the Georgia State Prison (GSP), in 2001. He suffers from human immunodeficiency virus (HIV) and hepatitis. Due to a decline in his health, on September 5, 2002, Dr. Walton prescribed medication for HIV and hepatitis. However, on October 30, 2002, Dr. Presnell discontinued the medications.

Brown brought suit against Presnell and GSP Medical Administrator Lisa Johnson, alleging that the withdrawal of prescribed medications constituted deliberate indifference to his serious medical needs. He sought preliminary and permanent injunctions mandating adequate medical care for his serious medical needs.

Brown sought to proceed in forma pauperis. However, he had previously incurred three strikes under 28 U.S.C. § 1915(g) of the PLRA. Under § 1915(g) a prisoner who has filed three or more meritless or frivolous lawsuits is prohibited from proceeding in forma pauperis unless he is in imminent ...

Ohio Man Awarded $618,000 for Nearly 16 Years Wrongful Imprisonment

On August 15, 2005, the Ohio Court of Claims awarded $618,683.33 to a man who spent nearly 16 years in prison for a rape he did not commit.
Donte L. Booker was arrested for a carjacking outside a Beachwood, Ohio bar in February 1987. During the crime Booker ...

PLRA Doesnt Alter FRCP 23 Class Certification Analysis

PLRA Doesnt Alter FRCP 23 Class Certification Analysis

The Tenth Circuit Court of Appeals held that the Prison Litigation Reform Act (PLRA) does not change, limit or add new elements to the class certification and analysis of Fed.R.Civ.P. 23. The court reversed a lower courts denial of class certification, finding that the court improperly failed to address Rule 23s requirements.

Dennis Jones, Shirlen Mosby, Mark Shook and James Vaughn all suffer from severe psychiatric problems for which they were under psychiatric care and prescribed medication. In 2001 and 2002, each of them were confined in the El Paso County Jail in Colorado Springs, Colorado, as pretrial detainees and sentenced prisoners. While there, they received inadequate treatment of their serious mental illnesses. Mosby attempted suicide three times while housed in the jail.

On April 2, 2002, Jones, Mosby, Shook and Vaughn brought suit, alleging that Jail officials were deliberately indifferent to their mental health needs and numerous respects, and that the deprivations were life-threatening. Plaintiff alleged that Jail officials deliberate indifference to prisoners mental health needs has led to the deaths of at least four prisoners and resulted in injuries to others. Plaintiff sought to certify the action ...

No Qualified Immunity on Toothpaste, Inhaler & Ventilation Claims

The Seventh Circuit Court Of Appeals upheld a district courts denial of qualified immunity to jail officials on claims of denial of toothpaste, withholding asthma inhaler and inadequate ventilation.

In 1984, two Indiana men disappeared. Neither the men nor their bodies were ever found but they were declared legally dead. On August 2, 2000, brothers Herbert Duke Board (Duke) and Jerome Board (Jerry)... were arrested and charged with the murders of the two men. They were held in the Edgar County, Illinois, Jail for 126 days while awaiting trial. On December 6, 2000, they were released from custody following their acquittal on the murder charges.

The Boards then brought suit alleging numerous constitutional and state law violations related to their arrest, confinement and subsequent acquittal. Only three claims survived voluntary dismissal in the district courts unchallenged grant of summary judgment in favor of the defendants. The court found that defendants were not entitled to qualified immunity on the Boards claims of denial of toothpaste, withholding asthma inhaler and inadequate ventilation. Defendants filed an interlocutory appeal of the qualified immunity ruling.

The Seventh Circuit explained that the constitutional rights of a pretrial detainee are derived from the Due Process of the ...

Appointment of Counsel Satisfies Access to Courts Requirement

The Second Circuit Court of Appeals held that the appointment of counsel is a valid means of fully satisfying a state constitutional obligation to provide prisoners, including pretrial detainees, with access to the courts[.] The court also held that constitutionally acceptable access to the courts through appointment of counsel is not measured by reference to the Sixth Amendments guarantee of effective assistance of counsel.

In 1996, Ronald Burdon was confined in the Chenango County, New York, Jail, facing several criminal charges. While incarcerated, Bourdon requested reference materials from the jails law library in order to prepare pro se pretrial motions to dismiss the indictment and for substitution of counsel.
Jail officials denied Bourdons request for materials, on the basis of that Bourdon was represented at the time by court-appointed counsel&from whom Bourdon could request the materials he desired.

Bourdon renewed his request, without requesting the materials from his attorney, stat[ing] only that he had not heard from his attorney and&that he was disappointed with the attorneys services. Jail officials again denied his request.

Without reference materials from the library, Bourdon filed his pro se motions. The state trial court denied the motion to dismiss, finding that the motion was untimely and that Bourdon, rather than Jail Officials, was responsible for the late filing. The court, however, granted Bourdons motion for new counsel.

Bourdon then brought suit in federal court, alleging that Jail Officials violated his constitutional right of access to the by denying him the requested reference material, failing to maintain a law library with adequate and up-to-date materials, and failing to provide timely services of a public notary, all of which allegedly harmed Bourdon by preventing him from filing a timely pro se pretrial motion to dismiss the state criminal indictment.

The district court granted summary judgment to defendants and dismissed the complaint. This decision was reversed by the Second Circuit in a summary ruling in Bourdon v. Loughren, 7 Fed. Appx. 116 (2d Cir. 2001) vacating the order, finding that the District Court, before ruling in favor of defendants, should have apprised Bourdon, a pro se litigant, of the consequences of failing to file a response to defendants summary judgment motion.

On remand, the parties re-filed cross-motions for summary judgment. The district court again found for defendants, concluding that Bourdons right of access to the courts had not been denied, finding that Bourdon could have asked for an extension of time to move to dismiss the indictment and that the denial of Bourdons motion to dismiss resulted from Bourdons inaction, not because Bourdon was delayed access to notary services. The court also noted that Bourdon was represented by counsel during all times that he claimed he was denied access to the courts.

Bourdon appealed, reiterating that the alleged deficiencies in the jails law library, and the delay in the provision of notary services hindered his efforts to file a timely motion to dismiss and that he was without effect of assistance of counsel when he requested the materials.
Noting that it had not previously addressed the precise question, the Second Circuit held that the appointment of counsel can be a valid means of satisfying a prisoners rights of access to the courts. The court observed that several of its sister circuits had already reached the same conclusion. See: e.g., Peterkins v. Jeffes, 885 F.2d 1021, 1042 (3d Cir. 1988); United States v. Chatman, 584 F.2d 1358, 1360 (4th Cir. 1978); United States v. Smith, 907 F.2d 42, 45 (6th Cir. 1990): Howland v. Kilquist, 833 F.2d 639, 643 (7th Cir. 1987); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); and Love v. Summit County, 776 F.2d 908, 914 (10th Cir. 1985).

The court then interpreted the reference to adequate assistance from persons ...

Seventh Circuit Reverses Jail Lockdown Dismissal; Day After Christmas = Legal Holiday

The Seventh Circuit Court of Appeals reversed a district courts dismissal of a conditions of confinement suit for failure to state a claim.
Female pretrial detainees of the Cook County Jail in Chicago, Illinois, sued the jail superintendent and County alleging that the jails practice of monthly lockdowns of 48 to 50 hours while guards searched for contraband gratuitously expos[ed] them to dangerous and degrading conditions of confinement, and deprive[ed] them of their liberty without due process of law and thus violated the Fourteenth Amendment. Plaintiffs allege that they were subjected to serious injuries when they were unable to summon guards when fights or other emergencies occurred during the lockdowns. Plaintiffs sought an injunction and damages.

On December 19, 2003, the district court entered its judgment dismissing the suit on January 7, 2004, plaintiffs filed a post-judgment motion under FRCP 59(e) for reconsideration, which was denied and plaintiffs appealed.
The Seventh Circuit was first required to address a difficult question of appellate jurisdiction... given the limited scope of appellate review of a denial of a Rule 59(e) motion, the dismissal of the suit depends on whether the motion was filed within 10 days after the entry ...

Missouri's 5-Year Limitation Period Applies to § 1983 Claims; 8th Circuit Reverses Earlier Decision to Contrary

Missouri's 5-Year Limitation Period Applies to § 1983 Claims;
8th Circuit Reverses Earlier Decision to Contrary

The Eighth Circuit Court of Appeals held that it previously erred in applying a three-year statute of limitations in a jail assault case. The court concluded that Missouris five-year statute of limitations for personal injury actions applies instead. The court remanded for reinstatement of claims dismissed as untimely under the inapplicable three-year limitation period.

Missouri prisoner Ronald C. Sulik brought suit against numerous Taney County and City of Branson officials, alleging violations of his constitutional rights when he was assaulted in the Taney County Jail. The district court dismissed the complaint as untimely, but the Eighth Circuit reversed, concluding that Sulik's complaint was timely filed when he placed it in the prison mail. Sulik v. Taney County, Mo., 316 F.3d 813, 814-16 (8th Cir. 2003) (Sulik I). It "remanded for reinstatement of the claims against all defendants except for the police officers, reasoning [that] claims against the police officers were governed by a three-year statute of limitations and remained untimely even if the prison mailbox rule was applied[.]" PLN has reported on these previous rulings.

On remand, the district court expressed doubt ...

$1,250 Settlement in Oregon Retaliation, Court Access Claims

A federal court in Oregon denied prison officials qualified immunity on a prisoners freedom of association, access to courts and retaliation claims. The association and retaliation claims were later settled for $1,250 and a transfer to another prison.

On December 21, 2000, Oregon Department Of Corrections (ODOC) prisoner Frank ...

On Remand From Supreme Court, Sixth Circuit Reverses Judgment on Guard Retaliation Claim

The Sixth Circuit Court of Appeals, on remand from the United States Supreme Court, reversed a district courts grant of summary judgment to a prison guard on a First Amendment retaliation claim.

Michigan prisoner Shakur Muhammad brought suit against guard Mark Close, alleging Close violated his First Amendment writes by charging him with threatening behavior, which necessitates pre-hearing lockup, in retaliation for prior lawsuits and grievance proceedings not Muhammad had instituted against Close. Muhammad sought $10,000 in compensatory and punitive damages for the physical, mental, and emotional injuries sustained during the six days of pre-hearing detention mandated by the charge of threatening behavior.

Initially, the District Court granted summary judgment to Close. The Sixth Circuit affirmed, relying on Huey v. Stine, 230 F.3d 226 (6th Cir. 2000) for its conclusion that Muhammads section 1983 claim was barred by the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994).

As discussed in John Midgleys June 2003 column, however, the United States Supreme Court reversed the Sixth Circuits decision and remanded for further proceedings. Muhammad v. Close, 124 S.Ct. 1303 (2004). The Court held that Huey was wrongly decided and that Muhammad could utilize § 1983 to challenge ...

Washington Prison Staff Properly Fired For Sexually Assaulting Prisoner

Division 2 of the Washington State Court of Appeals (Div. 2) has affirmed the summary dismissal of a prison guards law-suit for wrongful discharge for sexual misconduct.

James Shinn was captain of a ferry serving the McNeil Island Correction Center (MICC). In March of 2000, an MICC ser-geant accused him of giving contraband to Erin Turner, a female prisoner who worked on the ferry, in exchange for sex. Turner confirmed that Shinn had made inappropriate advances toward her.

On April 6, James Cooper, an MICC investigator, interviewed Shinn. Without allowing Shinns union representative to speak on Shinns behalf, Cooper placed Shinn on administra-tive leave.

On April 18, John Little, Shinns supervisor, generated an Employee Conduct Report (ECR) condemning Shinns conduct. Shinn received a copy of the ECR.
In May of 2000, Shinn was prosecuted for attempted custo-dial sexual misconduct. However, he was acquitted at trial.

On May 26, MICC Superintendent Alice Payne met with Shinn to discuss the ECR. On June 8 Payne formally found that Shinn was guilty of sexual misconduct and stated that disciplinary action would follow. On July 5 Payne notified Shinn by letter of a July 12 hearing to discuss his dismissal. Shinn did not attend ...

Any Reliance On AA or NA Participation During Parole Consideration Violates Establishment Clause

Any Reliance On AA or NA Participation During Parole
Consideration Violates Establishment Clause

by John E. Dannenberg

The United States District Court, E.D. Cal., ruled that requiring a California life prisoner to attend Narcotics Anonymous (NA) or Alcoholics Anonymous (AA) as a predicate for parole constituted a state establishment of religion prohibited by the First Amendment. Furthermore, the court enjoined the Board of Prison Terms (BPT) from ever imposing such a requirement in the future, and ordered all records of past references to the prisoners failure to attend NA expunged from his prison records.
Charles Turner, serving a 15-life sentence for second degree murder since 1979, had been denied parole by the BPT eight times. Each time he was admonished to attend NA or AA prior to his next hearing. In 1997, BPT Commissioner Steven Baker (a former San Diego Police Detective, whose small son was murdered) drove his mandate home: Let me explain it to you so its real simple. Do you want to get out of prison?. When Turner replied, Yes, Baker continued, Go to NA, learn those Twelve Steps, work those Twelve Steps. And this Board will not accept any excuses. Can I make it any ...

California Probationers and Parolees Not Similarly Situated As To Eligibility For Prop. 36 Drug Tr

California Probationers and Parolees Not Similarly Situated As To Eligibility For Prop. 36 Drug Treatment

by John E. Dannenberg

The California State Supreme Court held that Equal Protection claims as to parolees and probationers do not save a probation violators claim for eligibility to receive alternative drug treatment in lieu of prison. Under Californias 2000 Initiative Act Proposition 36, courts are required to order probation and community-based drug treatment rather than incarceration for specified offenders whose newest crime is a nonviolent drug possession offense (NDPO). While this treatment is available to parolees whose earlier offense was not an NDPO, it is not available to probationers under the language of Prop. 36. The California Court of Appeal had ruled that Equal Protection principles bootstrapped probationers eligibility to that of parolees (see PLN, Jun. 04, p.11); the California Supreme Court now reversed.

Gregory Guzman had a February, 2001 conviction for corporal injury on a cohabitant and misdemeanor battery on a peace officer. Guzman was on drugs at the time. He took a deal for three years probation plus eight months county jail. In October, 2001, he pled guilty to another drug possession/use charge. Both of these new offenses qualified as ...

Dismissal of Bivens Action for Non-Exhaustion Reversed

The Seventh Circuit Court of Appeals vacated a lower courts grant of summary judgment against a federal prisoner for failing to exhaust administrative remedies.

Federal Bureau of Prisons (BOP) prisoner Curtis Dale was stabbed seven times by other prisoners on the recreation yard at the U.S. Penitentiary Terre Haute. Nineteen days after the attack he was transferred to Oklahoma City, where he remained for seven days before being transferred to Lompoc, California.

Dale filed a Bivens action alleging that the Warden and two other BOP employees at Terre Haute knew he had been threatened but failed to protect him from attack by other prisoners.

The district court initially screened the complaint under 28 U.S.C. § 1915A and ordered Dale to supplement his complaint because he had not pleaded exhaustion. He responded that he requested grievance forms but was told the 20-day time limit for filing a grievance had expired and his only recourse was a claim under the Federal Tort Claims Act.

The district court was not satisfied with Dales response, so it sua sponte dismissed Dales complaint for failing to show that he exhausted his administrative remedies. Dale sought reconsideration, explaining that any failure to exhaust was ...

Sixth Circuit Requires Total Exhaustion Under PLRA; Decision Conflicts with Hartsfield

A panel of the Sixth Circuit joined the Eighth and Tenth Circuits in holding that the Prison Litigation Reform Act (PLRA) requires total exhaustion. One judge dissented, however, criticizing the majority opinion as being invalid for conflicting with Hartsfield v. Vidor, 199 F.3d 305 (6th Cir. 1999).

Lamar William Jones Bey, a prisoner of the Michigan Department of Corrections (MDOC), filed nine grievances against guard Kelly Johnson and one against Grievance Coordinator Wayne Trierweiler, between October 2001 and April 2002. Some of those grievances were fully exhausted but several were not.

Jones Bey brought suit against Johnson and Trierweiler, alleging violations of the First Amendment and his Eighth Amendment right to be free of excessive force. The district court granted Defendants summary judgment, finding Jones Bey had not fully exhausted his administrative remedies as required by the PLRA.

The Sixth Circuit explained that it is an open question in the circuit, whether the PLRA requires a complete dismissal of a prisoners complaint when that prisoner alleges both exhausted and unexhausted claims. Citing Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000), the Majority claimed that the Circuit has left unanswered...whether the PLRAs exhaustion requirement applies ...

Washington Appeals Court Reverses the Dismissal of a Slip-and-Fall Negligence Action; State Responsi

Washington Appeals Court Reverses the Dismissal of a Slip-and-Fall Negligence Action; State Responsible for Negligence of Prisoner Laborers

In an unpublished opinion, the Washington Court of Appeals held that a trial court erred in dismissing a pro se prisoners negligence action against the Washington Department of Corrections (DOC) in a slip-and-fall case.

Dick Baker was a prisoner at McNeil Island Penitentiary in 1997. On July 17, 1997, sometime between midnight and 2 a.m., Baker went to the unit bathroom. As he stepped along the railing... he slipped and fell..., hitting the back of his head. He blacked out momentarily and then heard the guard calling out to ask if he was okay. Baker replied that he was, and continued to the bathroom.

Back in his cell, Baker discovered that the back of his head was covered with a wet slimy substance that he identified as cement sealer.

Apparently, prison porters place cement sealer on the floor and later buff the floor after the sealer is dry. This is done during the graveyard shift,... The usual procedure is to place cones and tape around areas that have been mopped or sealed to alert prisoners that the area is not safe ...

Fair Labor Standards Acts Minimum Wage Provision Not Applicable to Private Prisons

Fair Labor Standards Acts Minimum Wage Provision Not Applicable to Private Prisons

The Seventh Circuit Appeals Court affirmed a lower courts decision that held prisoners are not entitled to the minimum wage provision of the Fair Labor Standards Act, 29 U.S.C. § 201 (FLSA).

Jay R. Bennett and James W. Knipfer are prisoners at Whiteville Correctional Facility (WCF), a private prison in Tennessee owned by Corrections Corporation of America which is under contract to the Wisconsin Department of Corrections. The prisoners filed suit claiming they were entitled, as employees, to the minimum wage provision of the FLSA.
The lower court held that they were not entitled to any of the benefits of the FLSA. Consequently, the prisoners appealed.

The Appeals Court held the FLSA is intended for the protection of employees, and the prisoners are not classified as employees of their prison, whether the prison is a public or private one.

The Act unhelpfully defines employee as any individual employed by an employer and defines employer as any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency. The Court held, however, the prisoners are not a part ...

2nd Circuit Reverses Sua Sponte § 1915 Dismissal; Parolee Owed Duty of Habitable Residence

The Second Circuit Court of Appeals reversed a district courts sua sponte dismissal, pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii), of a New York parolees action, for failure to state a claim.

Alonzo Jacobs, a parolee under the supervision of the New York State Division of Parole, brought suit in federal court against several parole officers. He alleged that Defendants violated his civil rights by the paroling him to his mothers unsafe and unsanitary residence, refusing his request to relocate to a homeless shelter, refusing to assist him in obtaining employment through the Division of Parole Job Placement/Referral Program, and coercing him to sign a sex offender registration form upon his release from prison even though [he] was not convicted of a sex offense.

Pursuant to § 1915, the district court sua sponte dismissed for failure to state a claim, concluding that Jacobs did not allege a violation of any right protected by the United States Constitution or by federal law.

The Second Circuit reversed, because it could not say that Jacobs... failed to state a claim that his placement in an allegedly uninhabitable home violated the states affirmative duty to assume some responsibility for his ...

News in Brief

News in Brief:

Arizona: On March 22, 2006, David Leyva, 24, a guard at the Pima county jail was arrested on charges that he conspired to possess an unidentified narcotic drug.

Arkansas: On March 21, 2006, a brawl involving 12 prisoners that started over a bag of stolen instant coffee was quelled by guards using pepper spray. Three prisoners were injured in the fight. Prisoner Charmorro Williams is expected to lose an eye after being struck in the eye with a lock in a sock, another prisoner suffered a broken jaw. Some three dozen prisoners were moved to other prisons afterwards.

Brazil: On March 23, 2006, prisoners at the Jundai jail rioted and seized control of the prison, which was designed to hold 120 but was holding 470 at the time of the riot. At least seven prisoners died of smoke inhalation from fires started by the prisoners to protest the transfer of prisoners to other jails.

Colorado: On March 22, 2006, a jury found state prisoner Clair Lloyd Beazer, 42, guilty of third degree assault, a misdemeanor, for gouging out the eye of fellow prisoner William Means, 41. Prosecutors had charged Beazer with second degree assault, a felony. No ...

Prisoner Suit Alleging Sexual Assault By Colorado Sheriffs Staff Reinstated

Prisoner Suit Alleging Sexual Assault By Colorado Sheriffs Staff Reinstated

by John E. Dannenberg

Reversing the U.S. District Court (D. Colo.), the Tenth Circuit U.S. Court of Appeals held that a review of the record showed that female prisoners alleging sexual assault by Huerfano County Jail (Colorado) sheriffs deputies had made a sufficient factual showing to survive summary judgment.
On October 13, 1998 prisoner Tereza Gonzales was escorted to the Commissary by Huerfano jail administrator Robert Martinez (Major Bob) to a small commissary room to fetch a comb for her. Inside, Major Bob pulled a knife and told Gonzales, Once youre in this room, you belong to me, and proceeded to sexually assault her. The same day, prisoner Amanda Guel was called to the control room by senior detention officer Dominick Gonzales and also sexually assaulted. Both women reported the crimes to Huerfano County Sheriff John Salazar, who agreed to meet with them the next morning. Instead, Salazar drove Tereza to a court appearance and told her to give her report to her public defender. Upon their return to jail, Major Bob called Tereza to the control room, where he said, Lets start off where we left off ...

 

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