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Prison Legal News: April, 2006

Issue PDF
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. CSC Pays Public Defender Social Worker $125,000 for Rape in Juvenile Facility (p 10)
  6. Former Georgia Parole Chairman Loses Appeal of Corruption Conviction (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. Petty Stone Cold Kickbacks KO Government Employees Nationwide (p 16)
  11. PHS Pays $350,000 to Settle Claim for Over-Medication Death of Florida Jail Prisoner (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. Phoenix, Arizona, Settles Krone Wrongful Imprisonment Suit for $3 Million (p 20)
  17. California DOC Settles Racially Determinative Housing Suit (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. Californias 2005 Prison Suicide Rate Doubles Over 2004 (p 22)
  21. Utah Jail Policy Banning Subscriptions to Magazines and Newspapers Enjoined; Fees Awarded (p 22)
  22. Alabama Work Release Prisoners Reclassified Following Escapes (p 23)
  23. NYDOCS Abandons ADA DOJ Exhaustion Defense (p 23)
  24. Eighth Circuit Upholds Denial of Compensatory/Punitive Damages; Physical (p 24)
  25. Exhaustion Not Required in Pennsylvania Parole Denial Challenges (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. Ohio Man Awarded $618,000 for Nearly 16 Years Wrongful Imprisonment (p 30)
  32. PLRA Doesnt Bar FRCP 15(a) Amendment of Complaint - No HIV/Hepatitis Treatment = Imminent Danger o (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. Washington Prison Staff Properly Fired For Sexually Assaulting Prisoner (p 36)
  40. On Remand From Supreme Court, Sixth Circuit Reverses Judgment on Guard Retaliation Claim (p 36)
  41. Any Reliance On AA or NA Participation During Parole Consideration Violates Establishment Clause (p 37)
  42. Dismissal of Bivens Action for Non-Exhaustion Reversed (p 38)
  43. California Probationers and Parolees Not Similarly Situated As To Eligibility For Prop. 36 Drug Tr (p 38)
  44. Sixth Circuit Requires Total Exhaustion Under PLRA; Decision Conflicts with Hartsfield (p 39)
  45. Fair Labor Standards Acts Minimum Wage Provision Not Applicable to Private Prisons (p 40)
  46. Washington Appeals Court Reverses the Dismissal of a Slip-and-Fall Negligence Action; State Responsi (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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...