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Prisoner Education Guide

Prison Legal News: May, 2006

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Volume 17, Number 5

In this issue:

  1. Scandal, Suicides, Corruption and Abuse Abound at New York Citys Rikers Island Jail (p 1)
  2. New York Brutality Settlement Affecting Twenty Two Prisoners, Fourteen Units Settles for $2.2 Millio (p 4)
  3. New Yorks Top Cop Crumbles Under Personal Investigation (p 6)
  4. Former Florida Correctional Privatization Commission Official Pleads Guilty to Stealing State Funds (p 11)
  5. Fall Escapes Plague Local, State Agencies in Houston Area (p 12)
  6. From the Editor (p 12)
  7. Abu Ghraib: Enduring Symbol of Hated Regimes (p 14)
  8. Lawyers Bilk Cornell for Millions, San Francisco Jail Scammed (p 17)
  9. Report Details Suicide and Homicide Rates in Prisons, Jails (p 18)
  10. Four CCA Guards Indicted in Murder of Nashville Prisoner (p 19)
  11. Habeas Hints: Evidentiary Hearings (p 20)
  12. Banned From the Hood (p 22)
  13. Nearly 7 Million Under Correctional Supervision In U.S. (p 22)
  14. California DOC Bans Dying Parolee From His Familys Town (p 23)
  15. BJS Director Sacked For Telling Truth About Racial Profiling (p 24)
  16. Connecticuts Mistreatment of Mentally Ill Prisoners and Detainees Enjoined (p 24)
  17. West Virginia Prisoner Sued By Victims Mother Following $50,000 Award (p 25)
  18. California DOC Diverts $480,000 of Drug Treatment Money for Movie Studio (p 26)
  19. Sixth Circuit: RLUIPA Held Constitutional Under the Spending Clause (p 26)
  20. Robots Package Medications for Jails (p 27)
  21. Texas Prisoner Writers Retaliation Lawsuit Proceeds (p 27)
  22. $150,000 Paid to Indiana Juvenile Jail Detainee for Sexual Assault (p 28)
  23. Florida's Juvenile Justice: Convicted Sex Offender Rapes Disabled Youth in His Care (p 28)
  24. Sixth Circuit Reverses Judgment for EMSA Physician, Remands for Trial (p 29)
  25. Conviction Rates Low After DNA Match (p 30)
  26. BOP Sexually Explicit Materials Ban Requires Factual Development (p 30)
  27. Montana Awards New Prison Phone Contract (p 31)
  28. Jury Awards $858,200 in California Jail Suicide (p 31)
  29. New York Prisoner Awarded $2,760 for Improper Confinement/Denial Medical Care (p 32)
  30. Los Angeles County Jail Continues To Over-Incarcerate (p 32)
  31. Former Illinois Death Row Prisoners Malicious Prosecution Claim Rejected (p 32)
  32. Reproductive Rights in Theory and Practice: The Meaning of Roe v. Wade for Women in Prison (p 33)
  33. Neglected New York Prisoner Dies At Jail Following Heart Surgery (p 34)
  34. Arizona Prisoners Mortality Report Confidentiality Not Federally Protected (p 34)
  35. BOP Prohibition Against Stock Selling and Receipt of Book Infringes Constitutional Rights (p 36)
  36. U.S. Prison Population Hits Nearly 2.3 Million In 2004 (p 36)
  37. Laundry Slip and Fall Injury Reaps New York Prisoner $95,000 (p 37)
  38. PLRA Exhaustion Requirement Inapplicable to Suit Filed When Plaintiff Not Incarcerated (p 37)
  39. Buddhist Prisoner Properly Denied Vegan Diet Under First Amendment; Case Remanded for RLUIPA Claim (p 38)
  40. Seventh Circuit Reverses Dismissal of Retaliation Claim (p 38)
  41. California Guards Lose Appeals On Federal Conspiracy Conviction, Bail; Still Free (p 40)
  42. News in Brief (p 41)
  43. Native American California Prisoner Entitled to Religious Exception from Prison Hair Grooming Policy (p 41)
  44. News in Brief (p 42)
  45. Ninth Circuit Reverses Denial of IFP Status Under §1915(g); Defendants Bear Burden of Establishing I (p 44)

Scandal, Suicides, Corruption and Abuse Abound at New York Citys Rikers Island Jail

Scandal, Suicides, Corruption and Abuse Abound at New York Citys Rikers Island Jail

by Gary Hunter

When Rikers Island was purchased in 1884 it was only 87 acres. The city of New York made it a landfill and expanded it for the citys Department of Correction a fact that has piled as much garbage above the ground as beneath. Corruption on Rikers Island reaches from bottom to top and has resulted in the abuse, brutalization and deaths of countless prisoners. Rikers Island is the jail complex for New York City which holds pretrial detainees and those serving sentences of less than one year and sentenced felons awaiting transport to the state prison system. Currently holding around 14,000 prisoners, Rikers Island has held as many as 20,000 prisoners. It is one of the largest jails in the country.

Corrupt Chiefs

Dominick Labruzzi, a captain at Rikers Island juvenile jail, was charged, on January 31, 2006, with sexually assaulting several teenage boys under his custody. Several young boys, who had no contact with each other, told strikingly similar stories to investigators. Each boy described a basement to where Labruzzi would take them then fondle their genitals as he pretended to ...

New York Brutality Settlement Affecting Twenty Two Prisoners, Fourteen Units Settles for $2.2 Millio

New York Brutality Settlement Affecting Twenty Two Prisoners, Fourteen Units Settles for $2.2 Million

by Gary Hunter

Settlement of a 4-year-old lawsuit, between brutalized prisoners and the guards who attacked them, was achieved on February 17, 2006. Most notable was the $2.2 million in damages that will be ...

New Yorks Top Cop Crumbles Under Personal Investigation

New Yorks Top Cop Crumbles Under Personal Investigation

by Gary Hunter

Given the controversy and corruption that currently surrounds virtually every aspect of the New York City penal process, its insightful to reflect on how one former New York top cop fared when his own affairs were placed under scrutiny. Alas, such scrutiny did not occur until after he had left government office.

Bernard B. Kerik, more affectionately known as Bernie, served as both New York City corrections commissioner and police chief under former Mayor Rudy Benito Giuliani. In December 2004, President Bush picked Kerik to head the Department of Homeland Security. If appointed, Keriks duties would have made him head of immigration services; however, his housekeeper/nanny turned out to be an illegal alien, and Bernie had neglected to pay taxes on her behalf. Once this became known his nomination was withdrawn within a week.

One White House official called it Keriks screw up, it was that simple. But simple implies there were no other complications, no baggage. And Bernie had plenty of baggage and what was yet to be disclosed soon became woven into a far more scandalous personal and professional history.
That Kerik is a ladies man ...

Former Florida Correctional Privatization Commission Official Pleads Guilty to Stealing State Funds

Former Florida Correctional Privatization Commission Official Pleads Guilty to Stealing State Funds

by David M. Reutter

The former Executive Director of Floridas now defunct Correctional Privatization Commission (CPC) has pled guilty to charges of fraud and money laundering involving almost $225,000 in state funds.
Alan Duffee headed the CPC from May 2002 until June 2004 when the Florida legislature voted to abolish the five-member panel and put the Department of Management Services in charge of administering state contracts with private prison companies.

According to the indictment, Duffee siphoned money from a major repair-and-maintenance fund that the state required prison management companies, including GEO Group and Corrections Corp. of America, to maintain for replacing or fixing equipment costing more than $5,000 that breaks down at the states five privately-operated prisons. The fund consisted of a percentage of monthly payments the Florida Department of Corrections made to the companies operating prisons in Bay and Gadsen Counties and at Lake City, South Bay and Moore Haven.

The indictment charged that Duffee did knowingly and willfully devise ... a scheme and artifice to defraud, and to obtain money and property, illegally from the prison maintenance fund. Duffee allegedly set up a bank account at ...

Fall Escapes Plague Local, State Agencies in Houston Area

by Michael Rigby

During a two week period in late 2005, prisoners in the Houston area escaped from all levels of custody. One prisoner escaped from the city jail, another vanished from the back of a prison van, and a third--a twice convicted death row prisoner--walked unimpeded out of a county jail. All three escapes were clearly due to human and procedural errors, but officials in each case refused to take responsibility.

Lawrence Darnell Thomas, 36, spent about three hours on the run following his escape from the Houston Police Department jail. Thomas was arrested around 4:30 p.m. on November 16, 2005, for an alleged carjacking. Upon arrival at the jail, Thomas broke free and ran when the cop pulled him from the backseat of the patrol car. He had slipped out of his handcuffs on the way.

Using dogs and a helicopter, police apprehended him about 8:30 p.m. Thomas, who police described as thin but muscular, was returned to the jail with handcuffs on his wrists and a double set on his ankles. Police Captain Dwayne Ready would not say whether the handcuffs had been applied improperly the first time. But it seems likely. Used ...

From the Editor

by Paul Wright

This issue marks the 16th anniversary of the founding of Prison Legal News. Since PLNs first issue was published on May 1, 1990 we have now published 192 issues. This is a significant accomplishment since most magazines in general measure their existence in the single digits of issues published. At this point PLN is the longest lived independent magazine founded by prisoners in US history. No small accomplishment in a country with hundreds of years of prison history and a penal press since at least 1800.

PLN has steadily grown, from 10 hand typed, photocopied pages to our current size of 48 pages. In addition, our website provides a vast amount of information with all PLN back issues, court cases and much more on it. It is the largest and best source of information on all things prison and jail related on the internet.

We are continuously striving to improve PLNs coverage, service and utility to our readers. This summer we plan to expand our book selection and add more titles to the books we offer our readers. I am also very excited to announce that a new PLN anthology on the political economy of mass imprisonment ...

Abu Ghraib: Enduring Symbol of Hated Regimes

Abu Ghraib, a 280-acre prison complex located 20 miles west of Baghdad, is a well known symbol to the Iraqi people. Abu Ghraib holds about 3,500 of the approximately 10,500 prisoners held by American forces in Iraq. All prisoners bound for the American militarys three long-term prisons are first processed at Abu Ghraib. Under Saddarn Hussein, it was known as the center of brutal torture and murder of Husseins political opponents. Ironically, that reputation may have grown under Abu Ghraibs U.S. military management. Numerous cases of abuse of prisoners have been well documented and previously reported in PLN. [PLN, Sept. 2004, p.1; Nov. 2006, p. 36; Dec. 2006, p. 1; Apr. 2005,p. 1]. Succinctly said, Abu Ghraib is still known as a place to which people go and, if they return at all, come back in much worse shape than when they entered. It is known as a location of torture and, perhaps worst of all, it is known as the location where thousands of innocent people are imprisoned.

How can these be innocent people? you might ask. After all, they are suspected insurgents and terrorists, arent they? and indeed they are categorized that way ...

Lawyers Bilk Cornell for Millions, San Francisco Jail Scammed

In an attempt to recoup millions of dollars, private prison operator Cornell Companies, Inc., has filed lawsuits against lawyers entrusted to oversee the companys funds for land deals.

Cornell, based in Huston filed the latest suit on August 26, 2005, in Houstons 333rd District Court against Locke Liddell & Sapp and David Montgomery, a partner in the firm, alleging malpractice, breach of contract, breach of fiduciary duty and fraud.

The complaint alleges the defendants gave Cornell the green light to place $13 million into an account that was supposedly an escrow account. There was no escrow agent; there was no escrow account, contends Scott Hershman, a Cornell attorney. That money was placed in the account with the intention to buy land for developing a prison in Colorado.

Cornell says $5 million was improperly taken from the account, and it incurred millions of dollars in fees, expenses, and transaction costs to pursue the missing money and finalize the land deal with another attorney.
The lawsuit comes as a surprise to Locke Liddell, who was representing Cornell on other matters when the suit was filed. They just filed this thing without any notice to us, said John McElhaney, Locke Liddells spokesman.

Cornell had problems with an escrow account in a Georgia deal. In that case, Cornell sued Longboat Global Advisors, alleging that companys Vice President, attorney Edgar J. Beaudreault, handled a construction loan transaction on behalf of Longboat, which was providing financing for the Colorado project. Once again, Cornell placed ...

Report Details Suicide and Homicide Rates in Prisons, Jails

Even though suicide and homicide rates among prisoners have been falling since the 1980s, thousands still die in U.S. prisons and jails every year. During 2001 and 2002, 5,824 state prisoners died in custody, according to a Bureau of Justice Statistics (BJS) report released in August 2005. Another 2,843 prisoners died in local jails from 2000-2002.

Jail suicide rates have fallen sharply in recent years, from 129 per 100,000 prisoners in 1983 to 47 in 2002. Suicide rates in state prisons have also showed a steady decline, from 34 per 100,000 in 1980 to 16 per 100,000 in 1990, and have since stabilized at 14 per 100,000 in 2002.
Similarly, murder rates in state prison have dipped sharply, from 54 per 100,000 in 1980 to 4 per 100,000 in 2002. Murder rates in local jails showed a slight decline, from 5 per 100,000 in 1983 to 3 per 100,000 in 2002.

The report is the first based on data collected under the Death in Custody Reporting Act of 2000 (Public Law 106-297). DICRA requires states receiving funds under the Violent Incarceration and Truth-in-Sentencing grant program to submit quarterly reports ...

Four CCA Guards Indicted in Murder of Nashville Prisoner

Four guards have been indicted for reckless homicide and aggravated assault in the July 2004 murder of a female prisoner at the Metro Detention Facility in Nashville, Tennessee, previously reported in PLN. [see PLN, Apr. 2005, p. 14]. The Metro facility is run by the Corrections Corporation of America (CCA), Americas largest private prison company, which is based in Nashville.

Estelle Richardson, 34, was incarcerated at the Metro Detention Facility. On July 5, 2004, at 5:37 a.m., she was found unresponsive on the floor of her solitary confinement cell. CCA claims Richardson had fought with other prisoners. However, other prisoners could not have been responsible for the severe injuries that caused her death because she was alone in her cell at the time. Thus, only CCA employees could have killed her.

An autopsy revealed a fatal skull fracture, four broken ribs and liver injuries. The medical examiner said the injuries were consistent with blunt force trauma caused by Richardsons body being slammed against a hard surface, and could not have been self-inflicted. Her death was ruled a homicide.

In September 2005, CCA guards William Woods, 26; Keith Andre Hendricks, 35; Jeremy Neese, 24; and Joshua D. Schockman, 23 ...

Habeas Hints: Evidentiary Hearings

This column is intended to provide habeas hints to prisoners who are considering or handling habeas corpus petitions as their own attorneys (in pro per). The focus of the column is habeas corpus practice under the AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.

The evidentiary hearing is the Catch 22 of habeas corpus practice. Although getting a habeas corpus petition granted is, of course, the ultimate goal on habeas corpus, virtually no habeas petition is granted these days unless the petitioner manages to prevail first at an evidentiary hearing on the petition. Meanwhile, however, the judge deciding the habeas corpus petition has very broad discretion to grant or deny a hearing, and more than 95% of the time the judge will exercise that discretion by denying the petition summarily that is, without granting a hearing.
Ironically, although the AEDPA is to blame for most of the procedural roadblocks a habeas corpus petitioner faces today in getting his habeas corpus heard on the merits, the law regarding evidentiary hearings is not very different now than it was before the AEDPA. That is because, although the AEDPA is supposed to make evidentiary hearings ...

Banned From the Hood

In Chicago, gang-leader parolees may be required to stay away from the turf of their gang as a condition of parole. Returning to the hood results in returning to prison. Other cities are using innovations such as gang-free safety zones and court orders prohibiting gang behavior by known gang members. Civil rights advocates question the constitutionality of these measures.

Shawn Betts, a leader of the 4 Corner Hustlers, a. violent street gang, was released from prison in October 2004 with the parole stipulation that he not return to the area controlled by his gang. He was made aware of the fact that he would be monitored by police for compliance with the stipulation. Nonetheless, less than six hours after his release from prison, he violated his parole.

Betts was under surveillance when he ducked into a van driven by his friends. They drove into Indiana briefly. Thus, Betts violated his parole by leaving the state without permission. The violation would probably never have been known had Betts not been being watched to make sure he did not return to his former turf.

Bettss revocation was the indirect result of a controversial new strategy by Chicago to rollback the gang violence ...

Nearly 7 Million Under Correctional Supervision In U.S.

At yearend 2004, nearly 7 million adults were in prison, on parole, or on probation in the U.S.--2.5 million more than in 1990--according to a study by the Bureau of Justice Statistics released on November 2, 2005.
Put another way, roughly 1 in every 31 adults were under some form of correctional supervision on December 31, 2004. By comparison, approximately 1 in 36 adults were under supervision in 1995, and about 1 in 88 in 1980.
The number of adults on parole increased by 20,230, or 2.7%, during 2004, more than double the average yearly increase of 1.37 since 1995, according to the study. A total of 765,355 adults were on parole at years end
Overall, discretionary releases by a parole board have declined significantly over the past two decades, from 55% in 1980 to 22% in 2003, the study found. During the same period, mandatory releases to parole (due to sentencing statutes or good-time provisions) increased from 19% to 52%. The unwillingness of parole boards to grant early release, regardless of prisoners conduct or accomplishments while in prison, is simply another facet of the lock em up and throw away the key ...

California DOC Bans Dying Parolee From His Familys Town

California DOC Bans Dying Parolee From His Familys Town

A terminally ill prisoner, paroled in February 2005 from one of a small northeast California towns two state prisons, was denied his request to live out his remaining days with his wife, a resident of that prison town (Susanville). Parole agents of the California Department of Corrections and Rehabilitation (CDCR) cited the reason that state law requires one normally parole to the county where he was last living, and that alternatively housing him in the prison town would disproportionately increase the potential crime rate there.

Thomas Jones, 41, admits having committed over 20 felonies, for which he has done 20 years in four stints in CDCRs Susanville prisons. Hes also an Aryan Brotherhood gang member festooned from head to toe with gang tattoos, including swastikas. But while in prison, he changed his ways and married Amanda, whose Susanville relatives include a prison guard and a local cop. Jones has the added support of his own brother and parents living in Susanville.

But notwithstanding Jones lethal and disabling emphysema lung disease and his strong family ties, CDCR paroled him to a halfway house five hours away in high-crime-rate Alameda County, where he ...

BJS Director Sacked For Telling Truth About Racial Profiling

Lawrence A. Greenfield was the director of the Justice Departments Bureau of Justice Statistics (BJS), a low-profile government agency that employs some 50 people for the task of preparing reports on statistical analysis of criminal justice-related issues such as crime patterns, police tactics, drug use and prison populations. BJS is located in a separate building from the Justice Department and has traditionally been largely independent of political influence. He was appointed to that post by President Bush in 2001 following 19 years of high marks as a statistician and administrator at BJS. However, in August 2005, he was sacked by White House officials after he refused to alter a Congressionally-mandated report on racial profiling to soft peddle the disparate treatment of black and Hispanic drivers stopped by police.

The report was conducted in 2002 and based on interviews with 80,000 drivers. It showed that, while white, Hispanic and black drivers are stopped at about the same rate--9%, black and Hispanic drivers were much more likely to be searched or be subjected to a police use of force than white drivers. The news release on the report prepared under Greenfield mentioned the disparate treatment. It was reviewed by then acting ...

Connecticuts Mistreatment of Mentally Ill Prisoners and Detainees Enjoined

Connecticuts Mistreatment of Mentally Ill Prisoners and Detainees Enjoined

by John E. Dannenberg

The Connecticut Department of Corrections (CDOC) entered into a settlement agreement in September 2005 that specified extensive changes to its policies for confining and treating mentally ill prisoners and detainees. In response to a 42 U.S ...

West Virginia Prisoner Sued By Victims Mother Following $50,000 Award

West Virginia Prisoner Sued By Victims Mother Following $50,000 Award

On August 16, 2005, state prisoner Mark Allen Harris was awarded $50,000 for facial injuries he sustained when he fell out of a jail van. Two days - later, the mother of Harriss 12-year-old niece, whom he was convicted ...

California DOC Diverts $480,000 of Drug Treatment Money for Movie Studio

The California Department of Corrections and Rehabilitation (CDCR), while overrunning its 2005 $6.4 billion state budget by $543 million, nonetheless diverted $480,000 of unspent drug treatment money to a private foundation to create a movie studio.

The Amity Foundation, based in Porterville, California, had $3.75 million in contracts to operate drug treatment programs at five CDCR prisons. When $480,000 remained unspent, instead of returning the excess to the states general fund, Amity spent it to create training videos for far-flung prisons to aid counselors in drug programs there. Substance abuse program funds were used to buy everything from high tech cameras to 50-inch plasma screen television sets. They also put the one video they made so far, a 3 1/2 hr. production featuring a renowned drug treatment expert, on sale for $100 on Amitys Web site.

Calling this a giant waste of taxpayer money, a furious state Senator Jackie Speier, when leading a hearing on waste and inefficiencies in state government, held out Amitys largesse as the worst example of those reviewed, topping the 9,000 unaccounted-for state-owned vehicles and countless stolen laptop computers.

The misappropriation was brought to light by whistle blower Richard Krupp ...

Sixth Circuit: RLUIPA Held Constitutional Under the Spending Clause

by John E. Dannenberg

The Sixth Circuit U.S. Court of Appeals, acting on remand from the U.S. Supreme Courts recent ruling (Cutter v. Wilkinson, 125 S.Ct. 2113 (2005); PLN, July 2005, p.30) (Cutter II) that the Religious Land Use and Institutionalized Persons Act (RLUIPA) was constitutional under the U.S. Constitutions Establishment Clause, subsequently ruled that the RLUIPA is also constitutional under a Spending Clause challenge raised by Ohio state prison authorities.

In Cutter II, the U.S. Supreme Court upheld Ohio prisoners rights to practice non-mainstream religions (e.g., Wiccan, Satanist), to include accommodations not imposing unjustified burdens on other prisoners or jeopardizing the effective functioning of the prison. However, in deciding Cutter II, the Court did not reach the alternative challenges raised by Ohio as to RLUIPAs constitutionality under the Spending and Commerce Clauses. In this new ruling upon remand, the Sixth Circuit held that the Spending Clause did not bar RLUIPA and that therefore no Commerce Clause analysis was necessary.

Guided by principles set down in South Dakota v. Dole, 483 U.S. 203, 206 (1987), the court noted that the Spending Clause (Art. I, § 8, cl. l) authorizes the power to require ...

Robots Package Medications for Jails

In a 21st Century move designed to both save $1 million per year and improve the accuracy of drug dispensing in county jails, Contra Costa County, California has hired robots to replace pharmacists and nurses in the packaging and dispensing of medications to prisoners in three of its jails.

By leasing three SafetyPaks from Omnicell, Inc. for $5,000 per month, the county anticipates that the jail pharmacist can be dispensed with and eleven of its nurses weekly working hours trimmed from 40 to 32.

The machines are capable of both preparing pill doses as well as packaging them, adding bar code tracking which allows for ensuring that patients receive the medications while making a written record of all dispensations. In addition, the system will permit the county to maintain a single pharmacy for all of its needs, eliminating both separate storage/accounting as well as wasteful throwing away of unused medications when they expire. The SafetyPak concept is cost-effective even for Contra Costas Martinez jail, where only 100 out of 700 prisoners regularly take prescription medicines.

As an added benefit, the jail anticipates that its nurses time will now be more effectively spent on providing health care.

Source: Corrections ...

Texas Prisoner Writers Retaliation Lawsuit Proceeds

Texas Prisoner Writers Retaliation Lawsuit Proceeds

by David M. Reutter

A Texas federal district court has granted in part and denied in part prison officials motion to dismiss Texas prisoners lawsuit alleging he was retaliated against for having articles published criticizing the Texas Department of Criminal Justice-Correctional Institutions Division (TCDJ).
Prior to his February 21, 2005, release on mandatory supervision, William Bryan Sorens spent most of his 21 years in prison writing and selling articles for publications without interference from prison officials. That changed after Sorens published the first in a series of two articles critical of TCDJ.

The first article was to appear in the March 2003 edition of Playboy Magazine. The second article, titled Locked down and Locked out: An Inside View of Prison Censorship, was purchased by Penthouse Magazine for its April 2003 issue.

Prison officials charged Sorens with disciplinary infractions for having established an unauthorized business within TDCJ. After a sham disciplinary hearing on March 18, 2003, Sorens was found guilty, receiving 30 days of commissary and cell restriction, 180 days loss of good time, and reduction in class from state approved Trusty III to Line I.

Sorens then received several retaliatory job changes that did ...

$150,000 Paid to Indiana Juvenile Jail Detainee for Sexual Assault

Following an Indiana federal district courts denial of summary judgment to the Marion County Sheriff, the Sheriff settled the matter by giving $150,000 to a pretrial juvenile detainee that was raped in the Marion County Jail (MCJ).

Seventeen-year-old Ryan Merriweather was arrested for armed robbery of a Chuck E ...

Florida's Juvenile Justice: Convicted Sex Offender Rapes Disabled Youth in His Care

Once again, Florida's Department of Juvenile Justice (DJJ) is under close scrutiny for failing to protect a severely mentally disabled teenager from sexual abuse.

At the center of this scandal is Robert, an orphan with the mind of an infant. The 15-year-old wears diapers and plays with blocks. Guards at Robert's Tallahassee juvenile detention center were unable to care for him. Their solution: They assigned 17-year-old Lee Donton to bathe, clothe, and change Robert's diaper. The problem: Donton was in the center for a 2004 rape conviction. He now faces two new counts of raping Robert.

Robert's problems began in 2000 when his mother became terminally ill. After she died in February 2, 2004, Robert became increasingly aggressive toward his elderly grandmother and aunt. At 300 pounds, Robert was understandably difficult to handle. Between December 2004 and May 2005, Robert had been charged four times with battery on a person 65 or older.

In May, 2005, Judge William Gary ordered Robert indefinitely detained. His care needs are more than our staff are trained to provide, a mental health counselor told Judge Gary.

On June 16, Tony Threalts, a lock-up supervisor, sent an e-mail to the superintendent ...

Sixth Circuit Reverses Judgment for EMSA Physician, Remands for Trial

The Sixth Circuit Court of Appeals has reversed a grant of summary judgment to a physician employed by EMSA Correctional Care, Inc (EMSA) in an Ohio pretrial detainees inadequate medical care claim.

On October 5th or 6th, 1998, James Johnson II severely cut his hand after tripping on a concrete stoop and falling &through a glass door& [B]oth an ambulance and a police car were dispatched to the scene & while the medical personnel were caring for him, the police discovered that there was an outstanding [domestic violence] warrant for Johnsons arrest.

Johnson was taken to a hospital emergency room where a physician told him that his tendons had been completely severed, that he was to return for surgery in [7-10] days (because the tendons needed some time to harden before surgery was performed), and that if he did not return in the appropriate time period, he would probably & lose the use of [his] hand permanently.

Johnson was then held in the Franklin County, Ohio jail on the outstanding warrant. All the time & medical services at the jail were contracted out to EMSA. Dr. [Vincent Anthony] Spagna, [M.D.] an EMSA employee, served as medical director of the Franklin County ...

Conviction Rates Low After DNA Match

For years now, the U.S. government and individual states have been pushing for wider DNA testing and bigger databases to make matches with crime scene evidence. The Bush administration proposed to spend $1 billion to expand testing. The question now is how effective is DNA testing in obtaining convictions?

A report from Virginias Department of Forensic Science has found its not very effective at all.

The FBI maintains a system of state and federal computers, known as the Combined DNA Index System (CODIS), to compare the genetic profiles of known offenders to DNA found in blood, semen, and other biological material found at crime scenes. CODIS has the DNA profiles of 2.7 million offenders, scoring nearly 28,000 matches nationwide since 1982.

Virginia, New York, and Florida have each scored over 3,000 matches between crime-scene DNA and profiles in the states databases. Since 1988, Virginia has collected about 246,000 DNA samples on file.

Of those samples, Virginia had 2,744 cases that matched a specific offender in the states database. In 278 other cases, a match was made to an out-of-state offender or an unsolved crime.

Of the in-state matches, only 597-less than 22%-led to ...

BOP Sexually Explicit Materials Ban Requires Factual Development

The Third Circuit Court of Appeals Reversed a district courts dismissal of a federal prisoners challenge to the Ensign Amendment, which prohibits federal prisoners from receiving sexually explicit materials.

The Ensign Amendment was first passed by Congress in 1997 and prohibits the use of funds appropriated for the United States Bureau of Prisons (BOP) to distribute or make available any commercially published information or material to a prisoner...[when] such information or material is sexually explicit or features nudity. 28 U.S.C. § 530C(b)(6).

The BOP promulgated 28 CFR § 540.72(b) to implement the amendment and define its key terms. Prior to passage of the amendment, 28 CFR § 540.71(b)(7) governed the distribution of sexually explicit materials. That rule still controls material falling outside the scope of § 540.72(b). The regulations are clearly targeted to the receipt... of softcore and hard-core pornography.

BOP prisoner Marc Ramirez brought suit challenging the constitutionality of the Ensign Amendment and its implementing regulation on First Amendment grounds. Applying the Reasonable Relationship Test of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987), the district court granted the governments motion to dismiss.

The Third Circuit noted ...

Montana Awards New Prison Phone Contract

The State of Montana has contracted with Public Communications Services (PCS), Inc. to provide phone services to prisoners in the Department of Corrections, according to a January 3, 2006 press release.

PCS holds itself out as a bargain for both the DOC and prisoner families, providing modern call-monitoring equipment--calls will be recorded digitally and prison officials will have the option of blocking individual phone numbers--new phones, and rational calling rates.

Citing the high number of complaints under the previous plan, DOC contract manager Gary Willems said the new system provides a fairer and cheaper phone service for inmate families.

Prisoner families were being gouged under the old system, paying $31.54 for a 30 minute call to anywhere in the continental United States. PCS will reportedly charge $8.75 plus tax for the same call.

The rate is less than it was previously but still significantly higher than outside rates, providing a comfortable profit margin for the company and its prison clients at the expense of prisoners' families.

The release notes that PCS, which focuses on prisoner calling services exclusively, recently acquired all of Verizon's prison and jail accounts. It remains to be seen whether PCS's rates will ...

Jury Awards $858,200 in California Jail Suicide

On February 22, 2006, a federal jury sitting in Sacramento found San Joaquin County, and Dr. Robert Hart, MD., liable for the death of Maurice Shaw in August of 2000. Shaw, who suffered from schizophrenia, was arrested on a minor drug charge in May of 2000 and kept in solitary ...

New York Prisoner Awarded $2,760 for Improper Confinement/Denial Medical Care

New York Prisoner Awarded $2,760 for Improper
Confinement/Denial Medical Care

The New York Court of Claims in Rochester has awarded prisoner Patrick Vaughn $2,760 on his claim that he was unlawfully confined and that his medical condition was not properly addressed.

After a guard called him a ...

Los Angeles County Jail Continues To Over-Incarcerate

by John E. Dannenberg

After paying $27 million (up to $5,000 per plaintiff) to settle class action lawsuits in 1991 for failing to timely release prisoners from county jail (see PLN, Jan. 2003, p.14), Los Angeles (L.A.) County is still making similar mistakes and paying penalties. In the twelve month period ending in June 2005, records of the L.A. County Sheriffs Department showed that they jailed 66 prisoners who either had never been charged with crimes or who had been court-ordered to be released.

Juan Avalos, a Mexican immigrant living in Orange County with his wife and four children, used to have two jobs. But he lost them when L.A. Sheriffs deputies arrested him in 2004 on an Orange County probation violation warrant and held him for 73 days without any due process. When L.A. County Jail officials realized he had never been taken to Orange County to face a judge, they gave him a check for $500 conditioned upon his signing a waiver to his right to sue for false imprisonment.

Not speaking English, Avalos signed the dotted line and took the money.
While L.A. County Sheriff Lee Baca said that no ...

Former Illinois Death Row Prisoners Malicious Prosecution Claim Rejected

Former Illinois Death Row Prisoners Malicious
Prosecution Claim Rejected

A Chicago jury has rejected former death row prisoner Anthony Porters claim that Chicago police conspired to frame him for a double murder he did not commit. Porter was sentenced to death for the 1982 murders of Jerry Hillard and Marilyn Green. In 1999, Porter was freed after proving his innocence.

For his 16 years on death row, the State of Illinois gave him a restitution check of $145,875 in 2000. In March, 2000, Porter filed a $24 million lawsuit against the detectives, arguing they forced a witness to identify him as the killer, they ignored information that would have led to the real killer, and they dismissed evidence showing he wasnt in the park when the shootings occurred.

The jury held the detectives were not malicious and had reason to focus on him as a suspect. Porters loss is a bitter pill for someone, who came within 50 hours and 22 minutes from a lethal injection, to swallow. The states restitution check is negligible for spending 16 years on death row.
Chicagos attorney, Walter Jones, declared the jurys verdict was correct. The killer has been sitting in that room ...

Reproductive Rights in Theory and Practice: The Meaning of Roe v. Wade for Women in Prison

Reproductive Rights in Theory and Practice: The Meaning
of Roe v. Wade for Women in Prison

by Rachel Roth

In 1973, when the Supreme Court handed down its decision in Roe v. Wade, there were about 14,000 women incarcerated in the United States; today, there are over 180,000. If the ultimate legacy of Roe is that women have the freedom to make decisions about pregnancy and motherhood, then what does this anniversary mean to women who are literally not free, those in jails, prisons, and immigration detention centers? Because prisons are shielded from public scrutiny, and the women in them are out of sight and out of mind, their concerns rarely enter the debate about reproductive rights and health.

Although reproductive freedom in prison may sound like a contradiction in terms, courts have been clear that women do not automatically lose their reproductive rights simply because they are incarcerated. Moreover, prisoners are the only group in the United States with a constitutional right to medical care. Yet the difference between having a right in theory and being able to exercise that right in practice is particularly stark for women in prison.

The war on drugs and mandatory sentencing ...

Neglected New York Prisoner Dies At Jail Following Heart Surgery

Laura Woolseys biggest fear was dying in jail. But thanks to the inept care provided her at New Yorks Schenectady County Jail, that fear was tragically realized.

Woolsey, 39, died at the jail on August 3, 2005, three hours after complaining of chest pain. She had been returned to the jail the day before, five days after undergoing surgery to replace a defective heart valve.

A report by Sheriff Harry Buffardi put the blame squarely on Schenectady Family Health Services (SFHS), the jails not-for-profit health care provider. According to the report, a guard notified the jails on-call nurse that Woolsey was complaining of chest pains at 7:45 a.m. Twenty minutes later the nurse was told that Woolseys condition appeared to be worsening. A second nurse then administered medication.

Woolsey was in total cardiac arrest by 10:20 a.m. When paramedics arrived, however, SFHS nurse Lorraine Walker told them not to administer CPR because of Woolseys recent open heart surgery. Walker falsely asserted the instructions had been issued by a doctor. The advice was contrary to sound medical procedure and common sense.

Buffardi said paramedics and several doctors told him that the need to stimulate blood flow far ...

Arizona Prisoners Mortality Report Confidentiality Not Federally Protected

Arizona Prisoners Mortality Report
Confidentiality Not Federally Protected

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals declined Maricopa County, Arizonas invitation to keep mortality reports on prisoners confidential.

Charles Agster was arrested and booked into the Maricopa County Jail in Phoenix, Arizona on August 6, 2001, where he was placed in a restraint chair. There, his breathing slowed and his heartbeat became irregular. After CPR attempts he was taken to a hospital and placed on life support. He died three days later. The county healthcare division undertook the required Standard J-10 mortality review between August 7 and November 8, 2001. It did so with the understanding that the report was to be kept confidential.

Agsters survivors sued Maricopa County in state court to gain discovery of the report. County defendants removed the action to federal district court, but this proved to be a fatal error. While Arizona state law provides for such confidentiality, no federal peer review standard has been adopted in the Ninth Circuit. The district court accordingly overruled defendants claim of privilege and ordered production of the report.

The Ninth Circuit affirmed. It found that it had jurisdiction under 28 U.S.C. § 1291 ...

BOP Prohibition Against Stock Selling and Receipt of Book Infringes Constitutional Rights

BOP Prohibition Against Stock Selling and
Receipt of Book Infringes Constitutional Rights

The Seventh Circuit Court of Appeals has held that a federal prisoners suit seeking damages for the refusal to allow him to contact his stockbroker and buy a book on computer programming state a claim. Federal Bureau of Prisons (BOP) prisoner Anthony King brought this Bivens claim in an Illinois federal district court. That court screened the suit under 28 U.S.C. § 1915A, dismissing the suit as frivolous.

King is the lawful owner of some stocks that he wanted to instruct his broker to sell if their prices fell below specified levels. BOP says he is forbidden to telephone his broker because a prisoner is not allowed to conduct a business. King received a disciplinary citation for misusing his telephone privileges by making one call to his stockbroker, which has discouraged him from future attempts.

The Seventh Circuit said that unless the one is engaged in a financial business, ordering ones broker to sell stock (whether immediately or, as here, contingent in a price change) is no more the conduct of a business than asking a real estate broker to sell ones house. The Court said that ...

U.S. Prison Population Hits Nearly 2.3 Million In 2004

The U.S. reached a new milestone in 2004: the imprisonment of nearly 2.3 million citizens, according to a report by the Bureau of Justice Statistics (BJS) released in October 2005.

On December 31, 2004, 2,267,787 men, women, and children were held in the nations prisons and jails. The number represents an increase of 54,321, or 2.6% over the previous year--slightly less than the average annual growth of 3.4% since 1995. Prisons held 1,421,911 prisoners, while another 713,990 were in jail. Territorial, military, immigration, Indian, and juvenile prisons held the rest.

Increases were seen across the board, according to the report. State prison populations grew by 1.6%, or 20,759 new prisoners during 2004, while the federal system grew 4.2% (7,269). Private prisons grew by 3.3%, from 95,707 prisoners at yearend 2003 to 98,901 at yearend 2004.

Ten states increased their prison populations by at least 10% during 2004. Minnesota led with an 11.4% increase, followed by Idaho (11.1%), and Georgia (8.3%). Modest decreases were seen in 11 states, including Alabama (-7.3%), Rhode Island (-2.8%), and New York (-2.2 ...

Laundry Slip and Fall Injury Reaps New York Prisoner $95,000

Laundry Slip and Fall Injury Reaps
New York Prisoner $95,000

A New York Court of Claims has awarded state prisoner Laurie Kellogg $95,000 for injuries sustained from a slip and fall accident in a laundry room at Bedford Hills Correctional Facility on November 7, 1999.

Kellogg was working ...

PLRA Exhaustion Requirement Inapplicable to Suit Filed When Plaintiff Not Incarcerated

The Eighth Circuit Court of Appeals has upheld an Iowa District Courts order denying a plaintiff in forma pauperis status, but reversed its order dismissing the 42 U.S.C. § 1983 action for failure to exhaust administrative remedies.

Proceeding pro se, Steven R. Nerness filed a civil rights action against guards at an undisclosed Iowa jail, alleging they were deliberately indifferent to his urgent medical needs during his arrest and ensuing seven-hour confinement at the jail.

In denying Nerness request to proceed in forma pauperis, the court cited Nerness failure to include an affidavit containing his assets as required by 28 U.S.C. § 1915(a)(1). Because Nerness only attempt to comply with § 1915 was to attach his 2002 federal tax returns rather than an affidavit detailing his assets, the Eighth Circuit held the district court did not abuse its discretion in denying in forma pauperis status. Nerness, however, was to be allowed to comply with § 1915 or pay the filing fee, the appellate court held.

The Eighth Circuits focus then turned to the dismissal for failure to exhaust administrative remedies. The appeals court said it had previously held the Prison Litigation Reform Acts exhaustion requirement was an affirmative ...

Buddhist Prisoner Properly Denied Vegan Diet Under First Amendment; Case Remanded for RLUIPA Claim

The Third Circuit Court of Appeals has held that a prisoners First Amendment religious exercise right to practice Mahayana Buddhism was not violated by prison officials refusal to provide a vegan diet. The appellate court, however, reversed for consideration of the prisoners claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

While a prisoner at Pennsyvanias SCI-Greene prison, Robert Perry DeHart filed a 42 U.S.C. § 1983 suit alleging that he began practicing Mahayana Buddhism in 1990. DeHart meditates and recites mantras for up to five hours a day. According to DeHarts self-taught understanding of Buddhist religious texts, he is not permitted to eat any meat or dairy products, nor can he have foods containing pugent vegetables such as onions, garlic, leeks, shallots and chives. As a result, DeHart became a vegetarian in 1993, declining food trays containing meat.

When he does accept food trays, DeHart eats only fruit, certain cereals, salads when served without dressing, and vegetables served with margarine. DeHart supplements his meals with items purchased from the commissary, including peanut butter, peanuts, pretzels, potato chips, caramel popcorn and trail mix. His requests that SCI-Green provide him
with a diet free of meat, dairy products ...

Seventh Circuit Reverses Dismissal of Retaliation Claim

The Seventh Circuit Court of Appeals reversed a district courts dismissal of an Illinois prisoners retaliation claim.

On January 17, 2003, Illinois prisoner Robert Hoskins worked in the Dixon Correctional Center (Dixon) cafeteria when Food Services Supervisor Connie Lenear called him a racial epithet because he could not help relocate cartons of chocolate milk. Hoskins reported the incident and filed a grievance.

On January 20, 2003, Lenear approached Hoskins and he told her that he was not speaking to her. Another prisoner later told Hoskins that Lenear& said she intended to get Hoskins transferred out of Dixon. Shift Supervisor Captain Schott was also overheard telling Lenear to issue Hoskins a disciplinary ticket for insolence. She did so, and on Schotts instructions, Hoskins was placed on investigative status and taken to segregation.

On January 21, 2003, Hoskins filed grievances against Lenear and Schott, alleging that they issued the falsified insolence disciplinary report in retaliation for his January 17, 2003 grievance.

On January 28, 2003, Hoskins was found guilty of insolence and sanctioned to loss of his job. Although he was not sanctioned to serve a segregation term, he remained there on investigative status.

On February 17, 2003, Schott saw Hoskins and ...

California Guards Lose Appeals On Federal Conspiracy Conviction, Bail; Still Free

Two former California prison guards, who were convicted in federal court of conspiracy to violate the constitutional rights (18 U.S.C. § 241) of Pelican Bay State Prison (PBSP) prisoners, lost both the appeals of their convictions of denial of bail pending appeal. Despite having been convicted in 2002 and losing their appeals in June, 2005, both men remain free.

Jose Ramon Garcia and Edward Michael Powers, guards at PBSP, were convicted of conspiring with other guards to organize stabbings, assaults and intimidation of selected prisoners by other prisoners. Garcia was sentenced to 76 months in federal prison and Powers received 84 months. They were imprisoned in June 2003 (see: PLN, Apr. 2003, p.21). While appealing their convictions they applied for bail pending appeal (18 U.S.C. § 3143 et seq.), first in the district court. That court denied bail after finding the two did not show exceptional reasons per 18 U.S.C. § 3145(c).

In the bail appeal, the former guards argued that § 3145(c)s exceptional reasons, including the fact that they were former state employees, excused them from immediate incarceration. In a case of first impression interpreting § 3145(c), the Ninth Circuit Court of Appeals ...

News in Brief

News in Brief:

Arizona: In August Pima county jail officials ordered the mass drug testing of all 200 minimum security jail prisoners and 20% tested positive for the use of illegal drugs.

California: On October 3, 2005, Long Beach police shot and killed a parolee who fled from them while being checked on at his home by police. A police dog was shot and killed by the parolee during the chase. Police issued a statement mourning the death of the dog, Ranger, but not the parolee.
California: On September 21, 2005, 120 immigration detainees at the Mira Loma jail in Los Angeles staged a six hour sit down strike to protest the slow pace of their immigration hearings. Immigration proceedings routinely take four to six weeks before being held due to a backlog in cases. The jail holds 950 men awaiting deportation hearings or who are seeking political asylum.

California: On September 22, 2005, 200 Black and Hispanic prisoners at the California Institution for Men in Chino rioted for three hours before being subdued by guards with pepper spray, foam bullets and tear gas. Eight prisoners were injured, two critically and one guard suffered a back injury during the incident ...

Native American California Prisoner Entitled to Religious Exception from Prison Hair Grooming Policy

by John E. Dannenberg

The Ninth Circuit Court of Appeals, applying the Religious Land Use and Institutionalized Person Act (RLUIPA) (42 U.S.C. § 2000cc, et seq.), held that the blanket three-inch hair length policy (for male prisoners only) imposed by the California Department of Corrections (CDC) was not the least restrictive means necessary to achieve its compelling interest in prison safety and security, and reversed and remanded for approval of the policy by the district court below.

Billy Warsoldier, a Cahuilla Native American incarcerated at CDCs minimum security prison (ACCF) in Adelanto, California, had been repeatedly infracted for not complying with CDCs regulation 15 CCR § 3062(e), which requires male prisoners to cut their hair to no longer than three inches. CDC never forced Warsoldier to actually cut his hair; they just progressively punished him for not yielding his sincerely held religious beliefs [his faith prohibits hair cutting] to CDCs inflexible policy. As a result, Warsoldier suffered cell confinement, added work duty, reclassification to a lower work credit-earning status, loss of phone privileges, expulsion from two vocational classes, removal from his position on the Inmate Advisory Council, exclusion from recreation in the main yard, reduction of his monthly draw ...

News in Brief

News in Brief:

Alabama: On January 8, 2006, Arthur Lee Scruggs, 38, a prisoner at the Donaldson Correctional Facility, was killed by unspecified means in a fight with prisoners Michael Barnes and Gerald Henderson.

Arizona: In August, 2005, a massive drug sting by the FBI led to 16 guilty pleas by US army soldiers, policemen and prison guards who agreed, usually while in uniform, to smuggle or transport 1,474 pounds of cocaine in exchange for bribes. Seven of the total arrested were Arizona Department of Corrections guards.

Arizona: On June 14, 2005, Gabriel Saucedo, 36, a guard at the Arizona State Prison Complex-Safford accidentally shot and killed himself while on perimeter guard duty at the prison.

Arkansas: On January 10, 2006, Janice Koontz, 30, a guard at the Civigenics run Bi-State Justice Building jail in Texarkana was indicted by a federal grand jury in Texarkana, Texas on 25 counts of tax fraud. Prosecutors charge that Koontz and Colleen Jordan, 44, a tax preparer, used prisoners social security numbers Koontz obtained at her job to fraudulently file false income tax returns in the name of the prisoners and get $50,000 in tax refunds for themselves. Koontz was employed by ...

Ninth Circuit Reverses Denial of IFP Status Under §1915(g); Defendants Bear Burden of Establishing I

Ninth Circuit Reverses Denial of IFP Status Under §1915(g); Defendants Bear Burden of Establishing IFP Disqualification


In a case of first impression, the Ninth Circuit Court of Appeals held that defendants bear the burden of proving disqualification for in forma pauperis (IFP) status under the three strike rule of 28 U.S.C. § 1915(g). Once the defendant has made out a prima facie case, the burden shifts to the plaintiff to persuade the court that § 1915(g) does not apply.
California prisoner Antolin Andrews brought suit in federal court challenging the grievance procedures of the California Department of Corrections (CDOC) and the application thereof.

The district court initially granted Andrews request to precede IFP. However, defendants moved for summary judgment claiming that Andrews had acquired three strikes barring IFP status under § 1915(g). Defendants attached the docket sheets for 22 actions in which Andrews was the plaintiff and the cases had been dismissed. They also attached an order from the Superior Court which deemed Andrews a vexatious litigant. No actual dismissal orders or other evidence regarding the reasons for the dismissals was provided to the district court.

The court agreed with defendants that Andrews bore the burden of ...

 

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