Prison Legal News:
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Volume 17, Number 6
In this issue:
- Torture in Maine Prison (p 1)
- From the Editor (p 14)
- Maquiladoras Expanding in Mexico; Global System of Prison Factories Envisioned (p 15)
- North Carolina Prison Audit Finds Industry Excesses,Overpaid Guards, More (p 16)
- Rampant Sexual Favoritism By California Prison Warden Is Actionable Under Hostile Work Environment T (p 18)
- Illinois DOC Seeks to Block Ex-Wardens Benefits (p 19)
- The Decline and Fall of the Prison Press (p 20)
- Audit of Californias Failed Intermediate-Parole-Sanctions Program Blames Lack of Benchmarks And D (p 21)
- California Auditor: Prison Industries Loses Money and Fails to Demonstrate Rehabilitative Success (p 22)
- Nevadas Son of Sam Statute of Violates First Amendment (p 23)
- California Legislature Reorganizes DOC To Add Rehabilitation (p 24)
- Aramark to Pay $65,000 for Overbilling Pennsylvania Prison (p 25)
- $40,000 Default Judgment Reversed for Determination of Service of Process Validity (p 25)
- $20,500 New Hampshire Jail Award Upheld for False Disciplinary Charges (p 26)
- Unpaid Prisoners Clean Up Rita Ravaged Southeast Texas (p 26)
- Estate of Pennsylvania Prisoner Killed By Wexford Health Sources Settles Suit for $2.15 Million (p 27)
- Love Letter Mail Scam Nets Ten Prisoners $221,000 and Fed Time (p 28)
- Michigan Youth Prison Closed But Problems Continue (p 28)
- Michigan DOCs Visitation Ban for Substance Abuse Upheld (p 29)
- Maryland ALJ Faults Arbitrary Transfer/Medical Order Violation (p 29)
- GEO Buys CSC After Settling $38.8 Million Judgment in Texas Boot Camp Death (p 30)
- California Prison Excessive Force Death Suit Settled For $850,000 (p 30)
- Washington DOC May Seize Money for LFOS; RCW 9.94A.772 Abrogates Angula (p 30)
- GAO: Private Contractors Perform Poorly At Overseas Military Prisons (p 31)
- Georgia Jail and Its Medical Provider Settle Jail Wrongful Death Suit For $500,000 (p 32)
- Denial of Medication/Prescribed Treatment States Eighth Amendment Claim (p 32)
- Florida Muslim's Forced Shave Challenge Remanded (p 33)
- Federal Court Filing Fees Increased, Cost of Justice Too High for Many Prisoners (p 33)
- California Ex-Con DNA Collection Law Ruled Not Retroactive (p 34)
- PHS Parent Company Fires Executives For Cause In Billing Scandal (p 34)
- Hawaii Guard Given Probation for Prisoners Death (p 35)
- Failure to Procure Medical Treatment Suit Proceeds Against Puerto Rican Guard (p 35)
- Dismissal of the Publisher/Approved Vendor Only Challenge Reversed (p 36)
- California Ban On Sexually Explicit Materials Upheld (p 36)
- Washington DOC Pays Again for Flaunting Open Records Law (p 37)
- Second Circuit: Drug-Abuse Based Denial Of HCV Treatment Is Actionable (p 37)
- PLRA Does Not Apply to Released Prisoner (p 38)
- § 1997e(e) Governs First Amendment Claims in Fifth Circuit (p 38)
- Qualified Immunity Denied in Illinois Jail Rape Case (p 39)
- Alabama Supreme Court Sidesteps Merits of Suit Challenging Contracted Prison Labor (p 40)
- Washington Community Placement Condition Barring Pornography Unconstitutionally Vague (p 41)
- SJ Reversed on Delaware Detainee Triple-Celling Claim; Due Process, Not Eighth Amendment Controls (p 41)
- News in Brief: (p 42)
- PLRAs 150% Attorney Fee Cap Applied in Nominal Damages, Non Prison Case Against Police (p 44)
Torture in Maine Prison
by Lance Tapley
The mission of the Maine State Prison is to provide a safe, secure, and humane correctional environment for the incarcerated offender.
Five hollering guards wearing helmets, face shields, and full body armor charge into a mentally ill mans cell. The first attacker smashes a big shield into him, knocking him down. The attackers jump on him, spray Mace into his face, push him onto his bed, and twist his arms to his back so they can handcuff him. They connect the cuffs by a chain to leg irons. Then they take him into the corridor, cut off all his clothes, and carry him naked and screaming through the cellblock, continuing to Mace him. They put him in an observation room where they bind him to a restraint chair with straps. He remains there naked and cold for hours, yelling and mumbling.
To many people, this scene would look like torture. A scene like it might have taken place in the infamous Abu Ghraib prison near Baghdad, where American soldiers torment captured Iraqis. But as described to me independently by six prisoners, including some who have suffered this attack, it is business as usual ...
One thing that can pretty much be said of all prison systems in the United States, as well as the concentration camps operated by the US military and the Central Intelligence Agency overseas, is that they routinely rely on abuse and force as essential management tools and that medical neglect is an inherent part of how prisons and jails are run.
Upcoming issues of PLN will have more coverage of systemic issues involving the abuse and neglect of prisoners in prisons and jails around the country. One thing we have been trying to do with our news coverage is to be able to do longer, in ...
This months cover story highlights abuse in the Maine prison system which consists mostly of one prison. While a lot of PLNs news and legal coverage focuses on states such as Texas and California and the federal Bureau of Prisons, in large part because their sheer size and number of prisoners means that there is more news happening, that is not to say that all is well in the smaller prison systems. In some respects the smaller systems have larger problems because they enjoy even less critical scrutiny than the larger prison systems do.
Maquiladoras--foreign-owned companies that assemble products for export--are already operating in Mexican prisons (see PLN, October 2002 and 2003). But Robertson, a nationalized Mexican citizen originally from North Carolina, has a two-pronged approach to fully exploit cheap Mexican labor. The idea is to build a twin plant just outside the prison gates to employ prisoners wives as well as the prisoners themselves upon release.
Robertson, a former textile worker, began manufacturing hotel products in Las Vegas in 1975. He later operated plants in Dallas and Orlando before moving to Mexico in 1997, laying off 600 workers in the process.
Robertson is associated with two Mexican companies, Ceinre and JoeVilla. In November 2005, negotiations were underway with Tijuana-based Ceinre to establish maquiladoras in Chihuahua state prisons. Officials were reviewing initial plans to employ 500 prisoners in Chihuahua City, Parral, and Ciudad Juarez. The prisoners would make room furnishings for the international hotel industry.
U.S. businessman Joe Robertson has a dream: A global system of foreign-owned factories employing prisoners and their families for low wages and with few benefits. But for now his sights are set on Mexico, where he hopes to establish maquiladoras both inside and outside the prison gates.
In March 2005, the Charlotte Observer reported that Correctional Enterprises (CE), a division of the DOC that operates prison farms and factories, was wasting taxpayer money by circumventing state purchasing rules. [See PLN, Oct, 2005 for more on CE.] Under the rules, state agencies are required to seek competitive bids on orders above $5,000. But what the Observer found--and auditors confirmed--is that CE regularly split large orders for fabric and other raw materials into multiple smaller orders to avoid bidding. Many orders for the same material--some placed only minutes apart--fell just below the $5,000 threshold.
The audit cited several of the many instances in which purchase requisitions were improperly split. On August 11, 2004, for instance, a CE plant placed two orders for the same product for $4,310 and $4,175 within 11 minutes of each other, the audit ...
The North Carolina Department of Corrections prison industries program routinely violates state purchasing guidelines and lacks adequate internal controls, a state audit has confirmed. The audit, released on October 19, 2005, also found that guards were sometimes overpaid, disbursement procedures were defective, prisoner work hours werent properly recorded, and prison cellphones and cellphone service contracts were poorly managed.
A unanimous California State Supreme Court held that non involved female employees could sue the Department of Corrections (CDC) for sexual harassment under a hostile work environment theory, when they suffered job stress from the prison warden having concurrent sexual affairs with three of his other subordinate employees for eight years wherein he granted them preferential employment consideration in return for sex. The lower courts had ruled contra on summary judgment, holding that third party sexual harassment of the complainants was not adequately demonstrated on a record of job-related sexual trysts by others.
Former CDC Warden Lewis Kuykendall maintained concurrent sexual affairs with multiple female employees from 1991 until his retirement in 1999 (after an internal affairs investigation). Kuykendalls management style over the years resembled that of a harem, where the women were playthings who competed for his sexual favors, all the while subservient to him for pay, promotion and preferential job placement.
Plaintiff Edna Miller began working for CDC as a guard in 1983. In 1994, she learned that Central California Womens Facilitys (CCWF) then-Chief Deputy Warden Kuykendall was having simultaneous affairs with his secretary ...
Rampant Sexual Favoritism By California Prison Warden Is Actionable Under Hostile Work Environment Theory
by Matthew T. Clarke
On September 13, 2005, the Illinois Department of Corrections (DOC) filed an appeal of a workers compensation arbitrators decision to grant ex-prison warden William Barham permanent total disabilities benefits. Barhams injuries stem from a fatal one-vehicle accident for which he was convicted of reckless homicide and aggravated DUI and sentenced to four years in prison. Killed in the wreck was prison employee Jerry Isom. After Barham had served about 15 months of prison time, a state appellate court overturned the conviction. [PLN, Aug. 2004, p. 18]. Barham, 52, then filed for the disability payments of $863.45 per week for the rest of his life.
The disability case went to arbitration. The arbitrator ruled that the intoxicated Barham was performing a work-related activity when he wrecked the car on October 14, 2000. In addition to the $863.45 per week for life, Illinois was ordered to pay $42,000 in medical expenses and $863.45 per week for the 158 weeks from the day following the accident until Barham achieved maximum medical improvement for a total back payment of $178,425.
Prior to the accident, Barham had used a ...
Illinois DOC Seeks to Block Ex-Wardens Benefits
There were a few differences, though, between this riot and the last demonstrating the changing nature of Americas prison system. In 1982, guards fired shotguns in the air to quell the disturbance; in 2005, tear gas was the agent of choice. In the 80s, the prisoner newspaper, the San Quentin News wouldve covered the riots; in 2005, this newspaper no longer exists.
One of the most dramatic changes within American prisons is the near extinction of the penal press. Award-winning prison newspapers that once reached thousands even outside of prison wallsno longer exist, and their underground counterparts are few and far between. The situation has become so dire that, according to the author of Jailhouse Journalism, James McGrath Morris, If you talked to a prisoner today, they wouldnt even know these things existed.
The death of the prison press cant be attributed to one ...
It was a melee, a riot, a simmering dispute. Despite the nomenclature, coverage of the August 9, 2005, prisoner incident at San Quentin prison was hardly diversified. 39 prisoners were injured in one of the largest riots since 1982 at Californias oldest prison, with newspapers citing tensions between Latino and white prisoners as the root cause.
The California State Auditor issued a stinging 58 page report in November 2005 that squarely fixed the blame for the purported failure of the recent parole violators alternatives-to-reincarceration program on the California Department of Corrections and Rehabilitation (CDCR) for its failure to establish any performance benchmarks or to analyze available data. The Auditor found that the programs result of saving only $14.5 million of the projected $50.2 million for the first year was tied to delays in the programs implementation.
Not stated by the Auditor was the real reason for the programs failure, that the powerful prison guards union, the California Correctional Peace Officers Association, (CCPOA) wanted it to fail because the concept of having fewer of Californias 128,000 parolees returned to prison meant less pay for its members. The CCPOA made a weak attempt at distancing itself from its self-serving opposition to the states saving hundreds of millions of dollars currently wasted on reincarcerating technical parole violators. It first created a six-figure trust fund for its puppet victims rights organization (Crime Victims United (CVU)) and then had CVU publicly decry the program by ...
Audit of Californias Failed Intermediate-Parole-Sanctions Program Blames Lack of Benchmarks And Data Analysis
The audit was initiated by California State Senator Dean Florez when he learned that PIA charged $7.30 for PIA-made prisoner canvas slip-on shoes when private industry offered similar shoes for $1.05. He called for a reorganization of PIA on grounds that it competes unfairly with the private sector.
PIA, controlled by an 11-member state Board, operates 60 factories and farms in 22 of Californias 34 prisons. Twelve years ago PIA employed 6,295 prisoners, when the prisoner population was only two thirds of the current 168,000. Today, PIA employs only 5,669. Its intended benefits were to provide job ...
The California Department of Corrections and Rehabilitations (CDCR) Prison Industry Authority (PIA) loses money in 20 of 28 enterprises it operates in CDCR prisons, provides rehabilitative work for a declining number of prisoners in spite of a meteoric climb in prison population, and lacks a marketing plan, according to the 67 page December 2004 report on PIA by the California State Auditor. PIA lost $10.2 million in 2002-03 and $5.5 million in 2003-2004, even though it sold nearly 97% of its $144 million annual output to state agencies, 47% of that to itself (i.e., CDCR).
by Mark Wilson
The Nevada Supreme Court held that the States Son of Sam law violates the First Amendment.
In 1977, New York enacted the nations first Son of Sam law, in response to the possibility that David Berkowitz, a serial killer popularly known as the Son of Sam, might sell the publication rights to his memoirs. The measure was calculated to ensure that moneys received by criminals in connection with published storytelling about their criminal activities be made available to compensate victims and to prevent criminals from profiting from their criminal wrongdoing.
Following New Yorks lead, the federal government and approximately 40 states enacted similar Son of Sam statutes. Nevada first enacted a statute in 1981. NRS 217.265 (repealed 1993).
In 1991, the United States Supreme Court issued its decision in Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105, 112 S.Ct. 501 (1991), voiding New Yorks Son of Sam law as violating the First Amendment. In 1993, the Nevada Legislature revised its Son of Sam statute, recodified as NRS 217.007, in an attempt to address the constitutional issues raised in [Simon & Schuster].
In 1998, Jimmy Lerner was convicted of manslaughter and sentenced to a term of 2 to 12 years in the Nevada State Prison for killing Mark Slavin. While in prison, Lerner wrote a book entitled, You Got Nothing Coming: Notes from a Prison Fish, which was published by Broadway Books and Random House in 1999. This book detailed Lerners imprisonment and contains descriptions of the events surrounding the killing of Mr. Slavin. Lerner received a $100,000.00 advance for the book.
Slavins sister, Donna Seres, then sued Lerner pursuant to NRS 217.007, seeking recovery of his book proceeds. The District Court granted Lerners motion to dismiss under Simon & Schuster, holding that NRS 217.007... cannot survive the strict scrutiny analysis and, therefore, violates the First Amendment.
Although NRS 217.007 was a comprehensive piece of legislation enacted with the most salutary purpose, the Nevada Supreme Court agreed with Lerner and the district court in overturning it.
The Court first determined that NRS 217.007 is a statute of general applicability, implicating state action, because judicial enforcement of state legislation is both state action restricting speech implicating the First Amendment. Thus, in line with Simon & Schuster, the court concluded that NRS 217.007 is a content-based statute because it explicitly and exclusively applied to income received from speech concerning the crime committed.
Because NRS 217.007 is a content-based restriction on speech, the Court held that it must pass a strict scrutiny level of review. While the measure addresses compelling state interests in compensating victims and prevention of criminal profiteering, it suffers from over inclusiveness because it regulates more speech than is necessary to serve the states interest. Clearly, NRS 217.007 allows recovery of proceeds from works that include expression both related and unrelated to the crime, imposing a disincentive to engage in public discourse and non-exploitive discussion of it. This violates the First Amendment. See: Seres v. Lerner, 120 Nev. Adv. Rep. 95, 102 P.3d 91 (Nev. 2004).
Notes from a Prison Fish is a fictionalized memoir, which intentionally devoted only a few pages to his crime, portraying it as self-defense. Broadway Books agreed to publish the book on the condition that Lerner recast his mostly true story as genuine nonfiction. Lerner subsequently claimed, that he had disguised some identities in places but otherwise removed the fiction.
Broadway inserted a short description of Lerners reluctant manslaughter plea near the front of a book, but only after 300 pages does the narrative shift to Lerners crime. He portrayed his victim as 6-foot-3 and rippling with muscle and unstable hot-tempered drug addicted Monster. While he was actually just 5-foot-4 and 133 pounds, 8 inches shorter and 40 pounds lighter than Lerner. He also described the circumstances of the crime much differently than he described to police the day after the killing. At first, Lerner denied there was any major discrepancy... it jibes, he said, slowly listing the details that matched up. He later backed off that claim, stating: I saw what I was doing not as a journalistic piece. What I was doing was a literary genre known as a memoir. It is 90 percent accurate. Prosecutors and Slavins family disagree, as many of Lerners fellow prisoners portrayed in the book probably due too.
Additional Sources: The Talented Mr. Lerner, by David D. Kirkpatrick; The New York Times, (Section 6, column 1) (March 31, 2002).
Nevadas Son of Sam Statute of Violates First Amendment
by Marvin Mentor
Via legislative enactment (SB 737) effective July 1, 2005, the California DOC (formerly CDC) was renamed the Department of Corrections and Rehabilitation (CDCR), the Board of Prison Terms (BPT) was replaced with the Board of Parole Hearings (BPH), and numerous previous correctional boards and organizations were reorganized and placed under the direct supervision of the governors Secretary of Corrections.
The advertised effect of this reorganization was to accommodate the glaring deficiencies in CDC that were roundly criticized in former Governor Deukmejians 359 page June 2004 report to Governor Schwarzenegger, Reforming Corrections. (See: PLN, Mar. 2005, p.1, California Corrections System Officially Declared Dysfunctional - Redemption Doubtful.) The somber forewarning of the Deukmejian report was that without a civilian oversight board, any reformulation of CDC would fail.
Nonetheless, in enacting SB 737, the California Legislature omitted such oversight and instead left the reorganized prior bureaucracy to continue to run itself. On the hopeful side, the new name reincorporates the word rehabilitation, a term tabooed in the Legislatures last sweeping tough-on-crime reform in 1977 (Senate Bill 42).
Prior to SB 737, the Secretary of Corrections was largely a titular position, with the true ...
California Legislature Reorganizes DOC To Add Rehabilitation
The agreement, which was reached in September 2005, concludes there was no criminal intent on the part of the vendor, Philadelphia-based Aramark Corp. to overbill the county, said the countys District Attorney Edward M. Marsico, Jr.
Aramark has served food to DCPs prisoners for the last 11 years. Its contract paid for each meal served. Instead, Aramark had been charging a flat amount for meals instead of tracking the ups and downs of the jails population. Im very pleased with the amount of money we received, Marsico said. I believed it more than covers any loss the county may have had.
In 2004, Aramark was awarded a five-year contract, which could be worth as much as $4.2 million. The investigation was spurred by prisoner complaints.
The probe concluded Aramark was providing the required meal content. Complaints by prisoners were dismissed as individual tastes adverse to institutional food.
PLN has previously reported on Aramarks history of cooking unsanitary food in shorting ...
Pennsylvanias Dauphin County Prison (DCP) will receive $65,000 from its food service vendor from overbilling. The settlement comes on the heels of a several-month grand jury investigation started in 2004 to examine allegations of watered-down food and overcharging.
Before the Seventh Circuit was the appeal of Lisa Homer, a former nurse at the Indiana Maximum Control Facility, challenging the default judgment against her. That judgment came on prisoner Nathaniel Jones-Beys claim that Homer and two other defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment.
The matter went to jury trial on February 25, 2002, at trial, the district court granted both Homers co-defendants judgment as a matter of law, and granted Jones-Beys motion for default judgment against Homer. The jury awarded $40,000 in damages against Homer on March 7, 2002.
Homer was then served with a summons that identified her as the Judgment Debtor and instructed her to appear in federal court to answer concerning the judgment debtors property, income, and profile. After multiple continuances, the court granted Jones-Beys motion to initiate a garnishment hearing against Homer on July 1, 2004. Homer ...
In a case of unusual circumstances, the Seventh Circuit Court of Appeals has reversed a default judgment of $40,000 in favor of a prisoner against a prison nurse for failure to serve process, but ordered the district court to make evidentiary findings that could reinstate the judgment.
Jason Surprenant was a pretrial detainee at New Hampshires Hillsborough County Jail on the evening ...
The First Circuit Court of Appeals has upheld a jurys award of $20,500 to a pretrial detainee in a civil rights action, alleging denial of due process from the filing of false disciplinary charges.
As of January 30, 2006, prisoners from the Larry Gist State Jail had already cleaned areas of Sabine Pass, Nederland, and Fort Author, according to Warden Dawn Williamson. Plans were also underway for prisoners to help in Orange and at a Beaumont cemetery.
Those performing the clean up work are trusties, prisoners convicted of non violent crimes who are allowed to work in the community without armed guards. Like all Texas prisoners, trusties earn nothing for their labor.
Even more such efforts could be underway. In January federal officials announced that the entire state of Texas would receive only $74.5 million for clean up efforts related to the September 2005 hurricane, a relative pittance according to media reports.
One city counting on the free labor is Orange, which is still littered with crumbling buildings, tree damaged homes, and branch filled ditches. City Manager Shawn Oubre had asked for $10.35 million in federal funds, an amount now out of the question. Oubre said two groups of 10 prisoners each began ...
With few federal funds headed for areas of Southeast Texas devastated by Hurricane Rita, state officials are using the free labor of Texas prisoners to augment clean up efforts.
Erin Finley, 26, was transferred to SCI-Muncy on July 2, 2002, to serve ...
Wexford Health Sources and the Commonwealth of Pennsylvania have agreed to pay $2.15 million to the family of an asthmatic prisoner who died after her medication was denied at the State Correctional Institution (SCI) in Muncy.
The scam involved the women placing pen pal ads in magazines and on the internet. When men responded, they would start a pen pal relationship and send the men a photo of an attractive woman they falsely claimed was them. Inevitably the women would ask the men for money. Various reasons would be given for needing the money such as needing to pay a lawyer or court costs. Often the women, who were not near being released, promised to live with or marry the men after release and said that they only needed the costs of their fine or relocation costs to be released. After receiving that money, they would then claim that new charges had been filed and continue the fraud.
Other prisoners sentenced ...
On October 4, 2005, Karen Ann Erdely, 40, a Pennsylvania state prisoner, was sentenced to the maximum term of five years in federal prison for conspiracy to commit mail fraud. The federal court found that she was the ringleader of a love letter scam that involved over a dozen female prisoners and defrauded 224 men of over $221,000. Erdely personally defrauded her victims of $106,261, which she was ordered to repay in restitution.
When the Geo Group (formerly Wackenhut) opened the 480-bed prison in 1999, it was seen as an economic panacea for one of the states poorest areas. State and local officials had banked their hopes on a wave of young, violent superpredators. But the wave never materialized. Now local taxpayers are stuck paying for capital improvements, like new water and sewer systems, that were made to accommodate the hulking prison.
Tracy Huling, a New York consultant who has researched the economies of communities around prisons, says the situation in Baldwin, where the prison is located, is the result of short-sighted planning. States have been creating penal colonies for years and there are consequences, Huling said. Its understandable to see how folks get into this situation, but someone has to take the leadership role and say theres got to be a better way.
To fill beds meant for the elusive superpredators, the ...
During its six years of operation, the Michigan Youth Correctional Facility has been criticized over abuse, suicide attempts, and a policy of filling beds at the maximum-security prison with low level offenders. But even after its closure, the privately run prison continues to poison the community and divide the government.
Michigan DOCs Visitation Ban for Substance Abuse Upheld
The Sixth Circuit Court of Appeals has held that a Michigan federal district court erred in refusing to dissolve its injunction ordering the Michigan Department of Corrections (MDOC) visitation limitations violated the due process rights of prisoners.
This case has a 10-year history. In 1995 MDOC implemented a regulation that allowed the MDOC Director to permanently restrict all visits for a prisoner who is found guilty administratively of two or more violations of the major misconduct charge of substance abuse. Prisoners sanctioned under this regulation could still received visits from attorneys or their representatives, qualified clergy, and staff for the Office of the Legislative Ombudsman. They also could request that the visitation ban be lifted after six months or two years, depending on the underlying infractions.
In August 1995, the plaintiffs, a class of prisoners incarcerated by MDOC, and their prospective visitors, challenged the substance abuse regulation on its face. The district court found the permanent visitation ban infringed on a liberty interest, holding the inconsistency and uncertainty of enforcement, the absence of any criteria for reinstatement, and the failure to provide any opportunity to be heard are all procedural deprivations of ...
In 1985, MDOC prisoner Douglas Arey entered into a settlement agreement with MDOC, where by he withdrew various lawsuits in exchange for MDOCs agreement to transfer [him] to the Maryland Penitentiary and to house him in a cell that would allow him to retain possession of all of his legal documents.
In July 1993, Arey suffered a burst blood vessel which resulted in a torn retina. The doctor ordered that he be provided with an egg crate mattress and an extra pillow. MDOC complied with these orders until June 11, 2003.
Despite the 1985 Settlement Agreement, Arey was transferred to different MDOC facilities on June 11, 2003, July 24, 2003 and August 8, 2003. He was not given a reason for the transfers and he was confined in a cell that does not allow him to retain his legal papers.
On August 13, 2003, Arey grieved that transfers, claiming they were tantamount to severe harassment, prejudice ...
A Maryland Administration Law Judge (ALJ) held that the Maryland Division of Correction (MDOC) violated a Settlement Agreement and acted arbitrarily, capriciously and in violation of law by transferring a prisoner. The ALJ also found the refusal to provide ordered medical devices was arbitrary.
Correctional Services Corporation (CSC) has settled a $38 million judgment that held the company responsible for the 2000 death of Bryan Dale Alexander, an 18 year old prisoner at a Texas boot camp. The terms are confidential, but according to an online article accessed February 6, 2006, CSC paid $2 ...
A Corcoran State Prison prisoner whose psychotropic medications had not been renewed for 20 days died from excessive force used to subdue him when he suffered withdrawal symptoms. On November 4, 2005, California settled his parents civil rights wrongful death suit brought in the federal district court for $850,000 ...
In 1994 John Martin was sentenced to 300 months in prison and ordered to pay $6,844.46 in restitution. Due to his confinement, no payment schedule was ever set. However, WDOC began seizing money from his prison account to pay his restitution.
Martin filed a Personal Restraint Petition (PRP) challenging the WDOCs seizure of his money for the purpose of restitution. Relying upon State v. Angulo, 77 Wash.App 657, 893 P.2d 662 (1995), Martin argued that collection of restitution was to be deferred until after his release.
The appellate court rejected Martins argument, finding that intervening amendments to the Sentencing Reform Act (SRA) abrogated the application of Angulo. Under those amendments, the WDOC was permitted to start collecting restitution in 2004, even though Martin remained incarcerated, had no community corrections officer, and no payment schedule had ever been set. Martin had no vested rights to the contrary.
The appeals court also rejected Martins argument that the retroactive application of RCW 9.94A.772, which was enacted in 2003 ...
The Washington Court of Appeals upheld a decision by the Washington Department of Corrections (WDOC) to seize money from a prisoners trust account to pay legal financial obligations (LFOs).
They have confirmed our concerns, said Price. There is confusion about the tasks assigned to contractors, a lack of oversight to ensure their safety, question as to their chain of command and inadequate information on their cost and effectiveness.
The report also criticized the misuse of Department of Interior contracts for information technology to pay for private interrogators and screeners used at the Abu Ghraib military prison complex. This practice was part of what is termed interagency contracting, using workers from a pre-existing contract to another federal agency to meet interrogation and other military support requirements urgently needed in Iraq.
David Cooper of the GAO said that Abu Ghraib was a good example of the total mishandling of private contractors. The private contractors often were responsible for their ...
A Government Accountability Office (GAO) report released April 29, 2005, criticized the militarys poor management of private contractors in Iraq and put partial blame for the Abu Ghraib prison scandal on private contractors and their poor management. The report had been requested in a letter by Rep. David Price, D-NC, that was cosigned by over 100 members of congress. The GAO is an investigative agency of Congress that audits the federal government.
Wilkes County is a small, rural Georgia community of 4,000 ...
Wilkes County, Georgia and Integrative Detention Health Services, Inc. (IDHS) paid $500,000.00 for settlement of a wrongful death suit alleging negligent medical care, deliberate indifference to serious medical needs, and wrongly allowing a paramedic to practice medicine.
Arkansas prisoner Willie Munn appealed a district courts dismissal of his suit after an evidentiary hearing. Munn had claimed that prison officials were deliberately indifferent to his serious medical needs. While incarcerated at the Varner Super Maximum Security Unit on May 19, 2003, Munn was issued a treatment order requiring his blood pressure and heart rate be checked. While in punitive confinement from May 21-30 he did not receive the required blood pressure checks or his high blood pressure pills.
The district court limited Munns claim to the issue of blood pressure checks, and denied that claim on the basis that Munn had showed no physical injury. The Eighth Circuit reversed.
The appeals court held the district court improperly refused to allow testimony on the missed-medication claim because that claim was sufficiently alleged in Munns grievances and complaint. The appellate court also held the missed-monitoring claim did not fail for lack of physical injury, for Munn alleged and testified that he experienced headaches, cramps, nosebleeds and dizziness while he ...
In two separate cases the Eighth Circuit Court of Appeals held that a prisoners claim of being denied medication, or not given prescribed treatment, states a claim under the Eighth Amendment.
Florida Muslim's Forced Shave Challenge Remanded
by David Reutter
Floridas First District Court of Appeal has reversed a circuit courts order denying a petition seeking to declare the Florida Department of Corrections (FDOC) shave policy unconstitutional when applied to Muslims.
Prisoner Akeem Muhammad, a Muslim, asserts that Islam commands male adherents to wear a beard the size of a fist or the next shorter length possible. FDOC rule 33-602.101(4), however, requires all prisoners to be clean-shaven and to submit to forced shaves if they refuse. When Muhammad refused to shave on religious grounds he was sentenced to 30 days disciplinary confinement, loss of gain time, and forced shaves. This sanction was upheld on administrative appeal and Muhammad was subject to forced shaves.
The Circuit Court denied Muhammads writ of mandamus on the ground that he should have sought declaratory relief, which the Circuit Court had denied in a previous suit as not being the proper remedy. The First District held this was error because Muhammads claim was clear and deserving of declaratory relief review.
In so holding, the appellate court ruled that courts have jurisdiction to consider challenges to FDOCs rule on religious grounds. Muhammad brought his ...
Similarly, beginning April 10, the filing fee for docketing an appeal in the federal circuit courts increased from $250 to $450. This is in addition to the $5 fee for filing a notice of appeal, which remains unchanged.
These increases were authorized by the Deficit Reduction Act of 2005 (Pub.L. No. 109-171). Parties filing an application for allowance of an interlocutory appeal in a circuit court under 28 U.S.C. § 1292(b) are not charged the filing fee unless the appeal is permitted, in which case the $450 fee becomes payable.
These new filing fees amount to a 40% increase in district courts and an 80% increase on the appellate level. The last filing fee increase in the federal courts occurred on Nov. 1, 2003; since that time, over a period of 2½ years, and including the most recent increases, federal court filing fees have soared 350% in district courts and 450% in ...
As of April 10, 2006, the fee for filing civil complaints in U.S. District Courts, or having state cases removed to federal court, increased from $250 to $350. Note that this increase applies to lawsuits and related civil claims, but not to habeas petitions.
The U.S. District Court, N.D. Cal., ruled that Californias recent Proposition 69, which provides for DNA collection from all convicted persons, does not apply retroactively to exconvicts who have been discharged from custody, parole or probation.
A class action suit was brought by the American Civil Liberties Union (ACLU) challenging the constitutionality of Prop. 69 [codified at Penal Code (PC) § 295 et seq.], an initiative act approved by California voters on November 2, 2004. The district court limited its ruling to the narrow question of whether ex-convicts, free from all custody, could nonetheless be gaffed up and forced to give a DNA sample. (The arguably more difficult question of whether Prop. 69 unconstitutionally permitted the state to collect such samples from select felony arrestees [commencing January 1, 2009] was dismissed because none of the class was ripe to make such a complaint.) ACLU attorney Julia Mass said the courts decision was very important ... clarifying for thousands of people that they wont be subject to testing under Proposition 69.
Pivotal to the courts decision was the California Attorney Generals March 15, 2005 Information Bulletin No. 04-BFS-03, which opined that such retroactivity probably did not ...
by John E. Dannenberg
ASG fired Trey Hartman, president and chief operating officer of Prison Health Services, on December 7, 2005. Grant Bryson, president and CEO of Secure Pharmacy Plus (SPP), was fired on December 9. Hartman formerly ran SPP, which provides pharmaceuticals to prisons and jails. The two men were fired for cause, according to the company.
In October 2004, ASG launched an investigation to determine whether SPP overcharged its clients for drugs and ignored generally accepted accounting principles. The audit was expected to cover all periods since ASG acquired SPP in September 2000. A recently resigned SPP controller had identified the issues under investigation, according to the company.
In November 2005 the NASDAQ stock exchange warned ASG it was subject to delisting because it had not made timely financial filings with the Securities Exchange Commission. ASG delayed its third quarter reports pending conclusion of the SPP audit. In a January 10, 2006, letter the stock exchange notified the company it would continue to be listed if its third quarter report was filed by March 15. ASG ...
America Service Group, the parent company of Prison Health Services, has fired two high level employees in connection with billing improprieties by its prison pharmacy division.
by Gary Hunter
Brian Freitas, a former guard was sentenced to one year probation for his part in the death of Antonio Revera, a prisoner at Halawa prison in Hawaii.
Revera was beaten to death in 1998 after he bit a sergeant at the prison. Although other guards were involved, Freitas was the only one charged in the incident.
He is still being used as a scapegoat, Freitas father said of the conviction. The evidence showed that corrections officers were present before Brian arrived.
Freitas was apologetic but continued to proclaim his innocence. Im really sorry about the situation that happened, but I just went over there to do my job, he said.
Charges against Freitas have been on hold for seven years. This fact influenced the decision of Judge Dexter Del Rosario to impose probation. The judge also noted that Freitas had given up drinking, remained actively employed and had the support of his family and church.
Reveras family had also received a $250,000 settlement from the state as previously reported in PLN.
Now I can go on with my life and can go ahead and provide for my family and ...
Hawaii Guard Given Probation for Prisoners Death
Ocasio was a prisoner at Baymon prison when a riot broke out on November 8, 1997; he was injured by a blow to the head. Medical attention at a regional hospital showed Ocasio was left with head pain, convulsions, and one side of his body was paralyzed. CT scans showed no brain damage and Ocasio was returned to his cell at Bayman a week later.
During the next six weeks, Ocasio was in considerable pain, was seriously disabled, cried and screamed in pain, and being half paralyzed he could not get about. The First Circuit found there was evidence in the record that Emilio Castillo, then a guard lieutenant in contact with Ocasio, was aware of his plight but did nothing to secure medical care for him.
Ocasio was not provided a wheelchaair until December 17. A local court had to take action on ...
The First Circuit Court of Appeals has affirmed in part and reversed in part a Puerto Rico District Courts grant of summary judgement to prison officials in a civil rights action alleging failure to render or procure adequate medical treatment. The action was brought by the mother of deceased Puerto Rican prisoner Orlando Ocasio Alsina (Ocasio).
On November 1, 2002, the Michigan Department of Corrections (MDOC) implemented Directive 05.03.118, which prohibits books, magazines, newspapers and other publications that are not received directly from the publisher... from an unauthorized vendor, or not ordered by the prisoner using established ordering procedures.
A pursuant to this policy, five books sent to MDOC prisoner Gregory Figel in May and June of 2003, by the Philadelphia Church of God (PCG) in Edmond, Oklahoma were confiscated. This was because [PCG] is not the publisher... nor are they an authorized vendor nor did the prisoner order the book[s] using established ordering procedures.
Figel requested and received hearings concerning the confiscations, and the decisions were affirmed. In July 2003, Figel requested that all religious publications be exempt from the Directive or alternatively, that all legitimate religious sources automatically be given authorized vendor status under the Directive. This request was denied. Figel then filed a grievance but it was rejected because it challenged policy ...
The Sixth Circuit Court of Appeals reversed a district courts sua sponte dismissal of a Michigan prisoners claims that rejection of a religious publications violated the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA).
R.J. Donovan Correctional Facility prisoner Stephen Snow objected to § 3006(c)(17)s prohibition of possession of personal photographs, drawings, or magazines depicting frontal nudity, including female breasts. [Specified exceptions include National Geographic magazine and departmentally acquired or approved academic, medical/scientific or artistic guides for educational or library use.]
In its de novo review, the court analyzed the regulation under the four-part test of Turner v. Safley, 482 U.S. 78 (1987). Relying on Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999), the court found that the regulation was neutral and had a rational connection with the legitimate penological interest of maintaining prison safety and security. Similarly, the court found Snow had not met his burden in demonstrating the Turner prongs of an alternative means of exercising the disputed right, proving prison resources would not be unduly taxed by the requested accommodation and showing ...
The California Court of Appeal upheld the denial of a state prisoners petition for writ of mandate seeking (1) rescission of California prison regulation 15 CCR § 3006 (c) (17) [proscribing possession of explicit sexual images], and (2) a declaration that the regulation violated both the First Amendment and Penal Code § 2601(c).
“[The] DOC could have easily ...
The Washington Department of Corrections (WDOC) has agreed to pay $65,000 to a state employee who claimed prison officials rejected his attorney’s request for electronic records, instead insisting on providing 38,000 pages of expensive hard copies that would have cost $5,700.
The Second Circuit U.S. Court of Appeals permitted a prisoners damages claim against the New York Department of Corrections (DOC) to proceed after he had been denied treatment for his Hepatitis-C (HCV) disease because he had tested positive for marijuana within the preceding two years.
Great Meadows Correctional Facility prisoner James Johnson, diagnosed with Stage III HCV disease, bridging fibrosis and cirrhosis, was denied treatment because of his single urinalysis screen showing evidence of marijuana. DOCs policy generally forbids the prescription of HCV medication to any prisoner with evidence of active substance abuse within the previous two years. All of his doctors repeatedly recommended he be placed on Rebetron combination therapy medication, even though they were aware of the drug-use exclusion policy. Because the doctors orders were being overruled by DOCs wooden application of its bureaucratic policy, Johnson sued under 42 U.S.C. § 1983 to gain treatment as well as to seek damages for DOCs deliberate indifference to his medical needs. The United States District Court (S.D N.Y.) granted DOCs motion for summary judgment, see: Johnson v. Wright, 2004 U.S. Dist. LEXIS 7543 (S.D.N.Y., May 3, 2004), and ...
by John E. Dannenberg
Before the Tenth Circuit was the appeal of former prisoner Lois Harold Norton, who brought claims that arose while imprisoned at the Love County Jail in Marietta, Oklahoma from September 2002 to March 2003. The district court dismissed all of Nortons claims when granting the defendants motion for summary judgment.
Prior to addressing the merits of the case, the Tenth Circuit reviewed an issue of first impression after the district court required Norton to show cause why he had not pleaded exhaustion of administrative remedies as required by the PLRA. In response, Norton argued that because he was not incarcerated he did not have to exhaust administrative remedies. The appellate court agreed, siding with other circuits which have held a plaintiff who brings suit after release is not bound by the PLRAs exhaustion requirement.
The appeals court further held that the district court properly dismissed claims that were brought in a proposed pretrial order and not the amended complaint. In so holding, the Tenth ...
In remanding for further proceedings, the Tenth Circuit Court of Appeals held that the administrative exhaustion requirement of the Prison Litigation Reform Act (PLRA) does not apply to persons not imprisoned when the suit is filed.
Texas prisoner Michael Geiger sued prison officials alleging that they conspired to withhold sexually explicit magazines in retaliation for an earlier suit he filed. Geiger also alleged that officials charged with handling prisoner grievances failed to remedy the situation after he filed grievances.
The district court dismissed the action, concluding that Geiger does not state a due process claim for deprivation of property and that his mail tampering claim, construed as a First Amendment claim, is barred by the physical injury requirement of § 1997e(e). Additionally, the court dismissed Geigers retaliation claim as frivolous for failure to exhaust administrative remedies.
On appeal, the Fifth Circuit concluded that while the district court did not err in dismissing Geigers retaliation claim as frivolous for failure to exhaust, Geiger abandoned any argument regarding this claim.
The court then upheld the dismissal ...
The Fifth Circuit Court of Appeals upheld a district courts dismissal of a pro se prisoners §1983 action, as frivolous and barred by the physical injury requirement of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(e). The court joined the Second, Third, Eight, Tenth and D.C. Circuits in holding that § 1997e(e) applies to First Amendment claims.
In 1999, David Velez was confined in the Milwaukee County, Wisconsin Jail. In late August, Velez got a cellmate, Roberto Zayas, who was being held on charges of sexual assault and battery by a prisoner &. Soon after moving in, Zayas began acting funny... [H]e talked to himself, paced around the cell, commented on Velezs appearance, and organized Velezs clothing. This made Velez uncomfortable and he requested a transfer. None came.
On September 5, 1999, guards Allen Bultman, Chad Haldemann and Michael Johnson worked Velezs unit. Johnson was in the control center where guards are to monitor emergency calls from inmates confined to their cells.
While Bultman and Haldeman made their rounds at approximately 10:30 p.m., Zayas placed a razor blade to Velezs neck. Velez rather subtly tried to get the guards attention he didnt loudly scream for help because he was afraid of getting his neck slashed but his effort was unsuccessful. He then pressed the emergency call button ... once again, Velez was careful with his words, telling Johnson that he was ...
The Seventh Circuit Court of Appeals affirmed the denial of qualified immunity for failing to protect a pretrial detainee from being raped by his cellmate.
Before the Court was the appeal of prisoner Darrell Latham, who sought a declaratory judgment that the Alabama Department of Corrections (DOC) and the Alabama Correctional Industries (ACI) do not have authority to contract prisoner labor to a private company. Latham also sought back pay.
In 2003, ACI and the DOC entered into a contract with Wilson Sporting Goods Co. to have prisoners in DOCs custody inflate and package various sports balls and package other sports equipment for Wilson. Under the contract, Wilson would ship sports equipment, deflated sports balls and the necessary packaging to DOCs Decatur Community Correctional Facility (DCCF).
Prisoners would inflate the balls and package them. They would also occasionally re-label and package baseball bats and other sports equipment. The packaged equipment would then be loaded onto pallets to be shipped back to Wilson. While ACI received a per item rate of pay, prisoners were only paid up to $.25 per hour. All prisoners, upon arrival at DCCF, were assigned to ACI for approximately 90 days.
Dissatisfied with ...
The Alabama Supreme Court denied class certification and sidestepped ruling on the merits of a prisoners claim that prison officials illegally contracted out his labor to a private company.
The Washington Court of Appeals held that a condition of community placement prohibiting possession or perusal of pornography without prior probation officer approval was unconstitutional.
Richard Sansone was sentenced to prison and community placement for raping and assaulting a girlfriend. One condition of his community placement was that he not possess or peruse pornography without approval of his sexual deviancy therapist or Community Correction Officer (CCO). Pornographic materials [were] to be defined by the therapist or CCO.
On August 26, 2003 Sansone met with his CCO. During that meeting his CCO saw and seized from Sansone photos depicting clothed women in low-cut blouses, a women clothed only from the waist down but covering her breasts with her arms, and a woman covered in somewhat sheer material. She took Sansone into custody for possessing pornographic materials in violation of his community placement condition.
On October 20, 2003 the trial court found that Sansone had willfully violated his community placement condition and sentenced him to 60 days confinement. The state subsequently conceded, however, that the pornography prohibition was improperly applied to Sansones conduct, and the order modifying his judgment and sentence should be reversed ...
Washington Community Placement Condition Barring Pornography Unconstitutionally Vague
The Multi-Purpose Criminal Justice Facility, commonly known as Gander Hill, is located in Wilmington, Delaware. It receives approximately 18,000 admissions per year and houses both pre-trial detainees and convicted prisoners, separated into the West and East Wings, respectively.
In 1999, prison officials began the practice of housing three detainees in cells intended and designed for one person (triple-celling). This requires someone to sleep on a mattress that must be placed on the cell floor adjacent to a toilet. The cells this occurs in range in size from 69 to 76 square feet, and the net unencumbered space in the cell (gross footage of 69 to 76 square feet less space required for a bed, mattress, desk and toilet) is less than 50 square feet, or 16 square ...
The Third Circuit Court of Appeals held that a Delaware District Court improperly analyzed a conditions of confinement claim brought by pre-trial detainees under the Eighth Amendment, rather than the Due Process Clause of the Fourteenth Amendment. The appeals court then reversed the grant of summary judgment to prison officials and remanded for proper analysis of the claim under the standard set forth in Bell v. Wolfish, 441 U.S. 520 (1979).
Arizona: On May 4, 2006, Christopher Breiland, 36, escaped from the Correctional Services Corporation run Florence West prison, by scaling a razor wire fence. He was captured on May 17 after a chase by police when they attempted to pull him over. Police stopped the chase after Breiland reached high speeds but he nonetheless ran into three other vehicles, injuring four motorists and himself. He had been due for release on December 30, 2006. He faces additional charges from the escape and the chase. CSC will be charged for the expense of the search and arrest.
California: In August, 2005, James Davis, 51, an attorney from Rancho Cucamonga, was sentenced to 81 months in a federal prison for impersonating a Homeland Security employee so he could buy a discounted airline ticket at John Wayne airport ...
Alabama: On May 3, 2006, Peter Makres, 52, a prisoner was strangled and killed at the Limestone Correctional Facility inside an isolation cell. Police suspect Joseph Burns, 22, the only other person in the cell with Makres, may have committed the crime. Makres was serving a 20 year sentence for possessing child pornography. Burns is serving a 20 year sentence for theft, rape and sodomy.
The Tenth Circuit Court of Appeals, sitting en banc, has reversed a panel ruling holding that the Prison Litigation Reform Act (PLRA) mandates attorney fees be limited to 150% of the damage award in all prisoner-filed ...
PLRAs 150% Attorney Fee Cap Applied in Nominal Damages, Non Prison Case Against Police