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Prisoner Education Guide

Prison Legal News: August, 2006

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Volume 17, Number 8

In this issue:

  1. Guards Rape of Prisoners Rampant, No Solution in Sight (p 1)
  2. I Wake Up in Middle-of-Night Terror (p 3)
  3. From the Editor (p 14)
  4. Prisoner Rape Is Torture (p 14)
  5. Ohio Woman Raped by Guard Awarded $625,000 (p 16)
  6. European Court of Human Rights Voids UKs Blanket Bans On Prisoner Voting (p 17)
  7. Michigan DOC Improperly Calculated Sentences and Released Prisoners; Officials Fired and Demoted (p 18)
  8. California Valdivia Attorneys Awarded $6.5 Million For 12 Years Work (p 19)
  9. Problems Continue In Maryland Prisons and Jails (p 20)
  10. Pennsylvania Correctional Industries Overcharges Customers, Stockpiles Cash, Fails Mission (p 22)
  11. Georgia Prisoner Beaten By Guard Awarded $22,000 (p 23)
  12. $100,000 Settlement For Black Oklahoma Prisoner Beaten By White Prisoners (p 23)
  13. Texas State Representative Criticized For Helping Prisoners and Families (p 24)
  14. Texas Politicians Provided Perks Using Prisoner Slave Labor (p 25)
  15. $475,000 Settlement In California Suicide Suit (p 26)
  16. Bubble-Gum Computers in Washington State DOC (p 26)
  17. California Prison Guards Overtime Doubles to $277 Million (p 27)
  18. Transgender Wisconsin Prisoners Continue Hormone Treatment Despite Law (p 28)
  19. $365,000 Settlement For Restrained, Untreated Michigan Boot Camp Prisoner (p 28)
  20. Armor Correctional Health Services: A New Company Blossoming with Political Payback (p 29)
  21. Ohio Awards $662,000 to Man Wrongly Imprisoned for Rape (p 30)
  22. Canadian Prison Sanctioned Skin-Art Saving Society Health Problems (p 30)
  23. Korean Company Employing Prisoners Receives Coveted Quality Award (p 30)
  24. California DOC Drug Program Funds Squandered (p 31)
  25. North Carolina Prisoner Taps Jails Bank Account for $120,000 (p 32)
  26. Survivors of Texas Jail Suicidee Win $516,000 Against Phone Provider (p 32)
  27. Muslim Prisoner Attacked by Other Muslims May Sue Prison for Failure to Protect (p 34)
  28. Alabama Sheriff Charged With Raiding Jail Food Fund (p 34)
  29. EMSA Negligent In Florida Jail Prisoners Death, County Pays $65,000 (p 35)
  30. $790,000 Settlement In Ulcer Death of Georgia Jail Prisoner (p 35)
  31. Tolling Provision Appeals to NY Personal Injury Action (p 36)
  32. No Qualified Immunity for Failure to Perform Timely Liver Biopsy (p 36)
  33. Florida District Court Awards Federal Prisoner $829.65 for Lost Property (p 36)
  34. Texas Court of Criminal Appeals Reinvigorates DNA Testing Law (p 37)
  35. $769,000 Awarded For Death of Asthmatic Virginia Jail Prisoner (p 37)
  36. No Qualified Immunity for Retaliatory Transfer; Jury Awards $219,000 in Damages (p 38)
  37. California Third-Level Administrative Appeals May Be Filed with Prison Appeals Coordinator (p 38)
  38. Ohio Pre-S.B. No. 2 Indeterminately Sentenced Prisoners Who Took a Plea are Entitled to Meaningful N (p 39)
  39. Ninth Circuit Holds Prisons Not Immune In ADA and RA Suit (p 39)
  40. RLUIPA Bars Total Ban on Melanic Literature (p 40)
  41. Alabama Clarifies Prisoners Right to Call Witnesses At Disciplinary Hearing (p 40)
  42. Washington Courts Authority to Order Community Custody Limited (p 41)
  43. California Supreme Court Resolves Conflict From Concurrent Sentences With Different Credit Earning R (p 41)
  44. News in Brief: (p 42)
  45. Actual Innocence Required in Washington Criminal Malpractice Actions (p 44)

Guards Rape of Prisoners Rampant, No Solution in Sight

Psychologists will quickly tell you that rape is not about sex. Its about power. Its about imposing ones will on another. Its about masking feelings of inadequacy with intimidation about artificially inflating ones low self esteem by abusing someone else. Sex is just a symptom. So its little wonder that so many prison and jail guards, when entrusted with a modicum of power, succumb to the temptation to sexually assault the prisoners under their care.

Incident after incident reveals a national epidemic of authority run amok in the hands of abusive detention facility employees, who have insufficient supervision and even less self control. In just one case, first degree sexual misconduct, indecent liberties and second-degree custodial misconduct are among the charges facing as many as eight King County Jail guards in Seattle, Washington.

In an unfolding investigation that one source has termed a culture of harassment, two guards, Louis Gano Laurencio, 45, and Cedric Darnell McGrew, 40, were arrested on May 6, 2005, while a third was arrested later that month and charges are pending against a fourth. All were placed on administrative leave. The investigation began in April 2005 when Laurencio and McGrew were accused of having sex with ...

I Wake Up in Middle-of-Night Terror

next to the warm sleeping body of my lover

yet alone in the conviction that I am in a prison cell

shut away, suddenly, from all that makes my life.

I sense the great weight of the prison

pressing down on the little box of room I lie in

alone --- forgotten.

How often do women awake

In the prison of marriage.

of solitary motherhood,

alone and forgotten

of exhaustion from meaningless work,

of self-despising learned early, of advancing age

alone and forgotten.

How many women lie awake at this moment

struggling as I do against despair

knowing the morning will crush us once again

under the futility of our lives.

And how short a step it is

-- for us to the more obvious imprisonment

of bars and concrete

where our sisters lie

alone --- forgotten.

See now, in this middle of night emptiness

how little it matters

whether we wear a convicts ill made cotton dress

or a velvet pantsuit -

We are possessions to be bought and sold,

We are children to be curbed and patronized,

We are bodies to be coveted, seized, and rejected

when our breasts begin to sag.

We are dummies to be laughed at.

I sense the ...

From the Editor

The sexual assault of prisoners is one of the largest problems in American prisons and jails today (the lack of adequate medical care is probably the biggest). As regular readers of PLN know, we have had extensive and ongoing coverage of prison rape issues since our inception in 1990. This has included in depth stories on sexual assaults in particular states, legislation, litigation, organizing and much more around the topic.

I edit the News in Brief column for each issue of PLN. In doing so, I try to aim for a diverse geographical and issue selection of articles. Alas, the sexual assault of prisoners is so common I could probably put out a 20 page monthly magazine dealing with nothing but that one topic. Since I try not to have too much of any one subject in the News in Brief column, my sexual assault news pile slowly grew to the point that I thought doing a feature story on it would be a good idea.

This story focuses on the sexual assault of prisoners by staff. At this point all states and the federal government criminalize sex between prisoners and staff. However, as previously reported, when enforced these laws ...

Prisoner Rape Is Torture

The U.S. has arrived at a critical moment of truth in addressing the sexual violence that plagues its prisons and jails. The failure of Departments of Corrections nationwide to prevent sexual abuse behind bars and to adequately respond to those who have been victimized is receiving national and international attention. Finally, this type of violence is beginning to get recognized for what it is: a serious human rights violation.

According to the Universal Declaration of Human Rights, All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood. While incarceration inherently places limits on a prisoners freedom, it does not take away all human rights. For example, prisoners retain their absolute right to be free from torture, including sexual violence, at all times.

The passage of the Prison Rape Elimination Act (PREA) in 2003 has brought unprecedented scrutiny to the problem of sexual violence behind bars and has led some corrections officials to conclude that they can no longer dismiss sexual violence as an inevitable byproduct of prison life.

As part of the implementation of PREA, this fall, the Bureau ...

Ohio Woman Raped by Guard Awarded $625,000

On September 15, 2005, a federal jury in Columbus, Ohio, awarded $625,000 to a woman who was fondled and digitally raped by a guard at the Ohio Reformatory for Women (ORW).

In November 1996, while serving a 1-year sentence at ORW for stabbing her husband, plaintiff Michelle Ortiz was ...

European Court of Human Rights Voids UKs Blanket Bans On Prisoner Voting

European Court of Human Rights Voids UKs Blanket Bans On Prisoner Voting

by Matthew T. Clarke

On October 6, 2005, the European Court of Human Rights issued a Grand Chamber Judgment holding that Britains blanket ban on incarcerated prisoners voting in elections violated Article 3 of Protocol No. 1 of the European Convention on Human Rights (Article 3). The court, which was specifically set up in 1950 to enforce individual rights under the convention, is independent of the European Union.

On February 11, 1980, John Hirst, a British national, pleaded guilty and was convicted of manslaughter on the ground of diminished capacity. He was sentenced to life imprisonment, but released on parole on May 25, 2004. Several years prior to his release, Hirst began proceedings in the High Court, claiming that his disenfranchisement under section 3 of the British Representation of the People Act of 1983, violated his right to vote under the European Convention on Human Rights. This blanket ban on voting rights for incarcerated prisoners affected around 48,000 other similarly-situated prisoners. The ban did not include pre-trial detainees, those imprisoned while on remand, those imprisoned for contempt of court, or those imprisoned for failing to pay a ...

Michigan DOC Improperly Calculated Sentences and Released Prisoners; Officials Fired and Demoted

Prisoner release procedures in the Michigan Department of Corrections (DOC) suffer from serious flaws, according to the Intake Processing Unit (IPU). The IPU undertook an audit and review of the way the DOC determined prisoner release dates, and issued its findings in an October, 2005 report. The IPU tested the process by examining release records, and concluded that five serious problems prevented proper release calculations and resulted in some prisoners being released too early while others were held too long.

The Michigan DOC currently houses approximately 50,900 prisoners, and their sentencing information is stored in two databases. The Offender Management Network Information System (OMNI) contains all initial data with regard to a prisoner at intake, such as the length of sentence, type of sentence, etc. This data is transmitted electronically to the Correction Management Information System (CMIS), where central records office staff are responsible for calculating prisoners release dates.

The CMIS database includes comprehensive data on prisoners incarcerated in the DOC, community placement, boot camp, and on parole. The IPUs investigation of the integration and implementation of OMNI and CMIS by the central records office staff revealed the following problems.

First, the IPU found that CMIS miscalculated release dates ...

California Valdivia Attorneys Awarded $6.5 Million For 12 Years Work

by John E. Dannenberg

The attorneys who labored twelve years to overturn the California Department of Corrections and Rehabilitations unconstitutional practice of snatching parolees off the streets and incarcerating them without due process of law [i.e., bed vacancy-driven recidivism] (see: PLN, January, 2003, p.16; April, 2004, p.24 ...

Problems Continue In Maryland Prisons and Jails

A battle is raging in Maryland over how best to improve prison safety. Some advocate hiring more guards and medical personnel. Others want to expand prisoner rehabilitation services. Neither side seems to be considering the possibility that both are needed. Meanwhile, violence, neglect, and contraband are on the rise.

Im going to kill you, prisoner Brandon T. Morris, 20, told guard Jeffery A. Wroten as he pointed the guards own gun at his head, according to court papers filed in Washington County on March 20, 2006. Please dont, please dont, Wroten begged just before Morris fatally shot him in the face.

Morris had been admitted to the Washington County Hospital in nearby Hagerstown after reportedly stabbing himself in the abdomen with a needle. Wroten, 44, was the lone employee guarding Morris when the January 26, 2006, incident occurred. After the shooting, Morris, who was serving an 8-year sentence at the Roxbury Correctional Institution for assault, robbery, and a weapons conviction, commandeered a taxi and led police on a 5-mile chase before crashing into a concrete barrier. Morris has since been transferred to the states supermax prison in Baltimore. His trial is set to begin July 31, 2006. Prosecutors are seeking ...

Pennsylvania Correctional Industries Overcharges Customers, Stockpiles Cash, Fails Mission

On September 13, 2005, Jack Wagner, the Pennsylvania Auditor General issued a report on his audit of Pennsylvania Correctional Industries (PCI). The audit covered, the period of July 1, 2000, through February 18, 2005, and was generally critical of PCI. Jeffery A. Beard, the Secretary of Corrections, agreed that the audit was a fair assessment of PCI overall.

PCI operates manufacturing and service facilities at 18 prisons, employing 213 staff members and over 1,600 prisoners. Its FY 2004 expenses were $32.1 million with FY 2004 profits of $1.4 million. Products include: signs, vehicle license plates, apparel, personal care items, containers, bags, furniture, food, and household items such as linens and cleaners. Services include: laundry, printing, engraving, vehicle restoration and freighting.

Wagner found that PCI overcharged its customers for its products when compared to similar products produced by other prison industries or products available through a private supplier. He noted that, despite general customer satisfaction with the quality of the goods and services, PCI sales had fallen by 25 % over the audit period. He found that this overcharging costs the taxpayers money and that money was being allowed to stockpile in a large, $32 million fund that was ...

Georgia Prisoner Beaten By Guard Awarded $22,000

On October 19, 2005, a federal jury awarded $22,000 in damages to a Georgia prisoner who was beaten by a guard.

Plaintiff Larry Hudson, 45, claimed that on March 7, 2002, while confined in disciplinary segregation, he became involved in a verbal confrontation with guard J. Singleton. According to Hudson, guard S. Gibson then opened Hudsons cell door, allowing Singleton to enter, and locked it behind him. In the cell Singleton punched Hudson in the face and threw him against the wall.

As a result of the beating Hudson suffered fractures to his arm and shoulders and cuts to his lips and nose. He also claimed that on numerous occasions after the assault Singleton threatened and verbally assaulted him.

Hudson sued Singleton and Gibson, pro se, alleging violations of his Fifth, Eighth, and Fourteenth Amendment rights. Specifically, Hudson contended Singleton assaulted and battered him without justification and that Gibson violated policies by opening his cell door and failing to stop or intervene in the assault.

A federal jury in Statesboro found for Hudson and awarded him a total of $22,000. The verdict included $1,000 in actual damages and $10,000 in punitive damages against each defendant. See ...

$100,000 Settlement For Black Oklahoma Prisoner Beaten By White Prisoners

Creek County, Oklahoma, has paid $100,000 to a black man who was severely beaten by a group of white prisoners in the county jail.

Rameses Gibbs, a black man, was arrested on November 22, 2001, on a misdemeanor charge and taken to the Creek County Jail. After he was ...

Texas State Representative Criticized For Helping Prisoners and Families

Texas Representative Terri Hodge has been taking heat for (gasp!) helping prisoners and their families, in other words--for doing her job.
Hodge is accused of the following: (1) helping arrange rare face-to-face meetings between parole-eligible prisoners and members of the parole board; (2) helping obtain the dismissal of disciplinary charges against prisoners which might otherwise prevent them from being paroled; (3) using a rarely-used legislative privilege to obtain the otherwise-highly-secret parole files of prisoners; and (4) helping prisoners transfer to prisons that are closer to their families. All of the criticism against Hodge actually points to flaws in the parole and prison administration in Texas.

Why should prisoners and their families have to get a state representative involved in the parole process to get the prisoner a face-to-face meeting with a single, voting parole official? In most states, the entire voting parole committee or board routinely meet face-to-face with the prisoners they are voting on. After all, shouldnt there be an effort on the voting parole officials part to get to know the person whose future they are about to decide. Instead, in Texas, parole officials routinely spend mere seconds reviewing a prisoners file before voting to grant or deny ...

Texas Politicians Provided Perks Using Prisoner Slave Labor

Texas Correctional Industries (TCI), the industrial division of the Texas prison system, has been operating as a cut-rate, custom craft-goods supplier for dozens of Texas legislators. One politician furnished his new home with prisoner made goods. The goods include a dining table with hand-carved state seal adornment, ten chairs, bar stools, kneeling benches, a holy water font and altar chairs all of which cost Democratic state Senator Eddie Lucio $6,319.

Legislators are not the only people who can order personal goods custom made at below-market costs by Texas state prisoners, prison employees and board members can do so too. They can also have furniture refurbished at below-market rates. Some employees refurbish furniture or order newly-made goods in such quantities that they appear to be running a business of reselling the items. Such a business would be very profitable as such work done by prisoners in Texas incurs no labor costs because the prisoners are not paid for their labor.

Allowing lawmakers to take advantage of not having to pay what they would pay at a retail store, and using it strictly for personal use, does not look good, said Suzy Woodford, the Texas Director of Common Cause, a government ...

$475,000 Settlement In California Suicide Suit

On December 20, 2005, the county of San Mateo, California, agreed to pay $475,000 to settle a wrongful death lawsuit involving a mentally ill woman who committed suicide in the county jail.

Angela Ramirez, 23, was imprisoned at the Womens Correctional Center after being sentenced to 120 days on ...

Bubble-Gum Computers in Washington State DOC

Bubble-gum-and-baling-wire operation....a risk to public safety over the long term. Thats how Rep. Glenn Anderson, R-Fall City, Washington, described the state prisons current computer system.

Its a disaster. Its been a disaster for a long time, agreed state Rep. Ross Hunter, D-Medina.

Anderson is a former high-tech management consultant and Hunter is a former general manager for Microsoft. Both sit on the Information Services Board which regulates state technology projects. Their critical comments refer to a computer integration attempt that began six years ago.

In 1999 IBM contracted with the Washington DOC to provide a system to more efficiently access information about prisoners and parolees. Offender Management Network Information project (OMNI) was sold to the state by IBM Global Services at a cost of $58 million. It is currently two years behind schedule and $6 million over budget.

Several independent sources have warned state officials that IBMs projections are unrealistic. A report by Coplan and company noted that much of the work [by IBM] was only partially completed, was not completed on time or budget, and was done in a way that DOC should be reluctant to continue. Coplan also pointed out that IBM had already modified the original ...

California Prison Guards Overtime Doubles to $277 Million

California Prison Guards Overtime Doubles to $277 Million

The total California Department of Corrections and Rehabilitation (CDCR) guard overtime pay in 2005 of $277 million was twice that of 2004. CDCRs 30,000 prison guards averaged $72,000 for the year, gaining about $15,000 each in overtime pay. But the number of guards annually earning over $100,000 quintupled to 2,400, based upon dramatically increased overtime pay. 182 guards at San Quentin State Prison, or about 1 in 5, took home more than $100,000. The highest paid CDCR guard, John Mattingly at High Desert State Prison, grossed $187,000, including $114,000 in overtime.

These revelations, dug out of the state controllers office by the San Diego Union-Tribune, hit me hard in the belly, said State Senator Gloria Romero. Reform has been slow in coming, and I would say largely its nonexistent.

Elaine Jenning, CDCR spokeswoman, tied the growth in overtime to the growth in the prison population. However, the prison population has stagnated at about 165,000, being effectively capped there by the fixed number of beds.
Another blame factor was the brief closing of CDCRs training academy, where a neophyte with a G.E.D ...

Transgender Wisconsin Prisoners Continue Hormone Treatment Despite Law

On January 25, 2006, a federal court in Wisconsin issued an emergency injunction to prevent the state from discontinuing hormone therapy for three transgender prisoners, despite a new state law banning the therapy.
In January 2006 the Wisconsin legislature enacted the Inmate Sex Change Prevention Act, Wis. Stat. § 302.286(5m). Sponsored by Republican state representative Mark Gundrum, the law prohibits the state from providing either surgery or hormone therapy to transgender prisoners. The statute, apparently the first of its kind in any state, was opposed by the Wisconsin Department of Corrections (WDOC), said lawyers for Lambda Legal and the American Civil Liberties Union (ACLU), which are representing two of the women.

Gundrum initiated the legislation in response to a lawsuit filed in 2003 by a third prisoner, Donna Dawn Konitzer, aka Scott Konitzer. In that lawsuit Konitzer sued the WDOC after being denied gender reassignment surgery, which she claims prison doctors promised to perform. Konitzer, who is serving 123 years for armed robbery, also sought to be housed in a female prison.

All three prisoners suffer from Gender Identity Disorder (GID), a recognized psychiatric illness that requires treatment. Konitzer has been receiving testosterone blockers and feminizing hormone therapy since ...

$365,000 Settlement For Restrained, Untreated Michigan Boot Camp Prisoner

On December 22, 2005, the state of Michigan agreed to pay $365,000 to a boot camp prisoner who was strapped in a restraint chair for six hours and later suffered kidney and liver failure.

Craig Allen Cook II was arrested on June 14, 1999, and imprisoned in the Manistee ...

Armor Correctional Health Services: A New Company Blossoming with Political Payback

by David M. Reutter

A recently-formed Florida prison healthcare corporation is blossoming with new contracts from county sheriffs who decided to change bidding requirements and in one case eliminate cost as a consideration.

The company, Coconut Creek-based Armor Correctional Health Services, is owned by Miami physician Dr. Jose Armas. In 2004 Armor had no track record, no active contracts and no sales. It now has over $210 million worth of contracts over a five-year period, including medical care for prisoners in Broward, Brevard and Hillsborough counties. Other contracts to treat prisoners in Martin and Lancaster counties are pending.

To obtain the contracts, some behind-the-scenes action occurred. In October 2004, Broward County Sheriff Ken Jenne awarded Armor its first contract, worth $127 million, to provide services for the countys 5,000 prisoners. During the bidding process Jenne dropped a requirement that companies must have experience providing healthcare to prisoners. While no explanation was provided for that action, it was known that Armas, through his companies and associates, had been a major contributor to Jennes reelection campaign.

Upon obtaining the Broward contract after only three months in business, in May 2005 Armor sought and was awarded a five-year, $19.9 million contract ...

Ohio Awards $662,000 to Man Wrongly Imprisoned for Rape

The State of Ohio has agreed to pay Nathaniel Lewis, 28, $662,000 for the five years he spent in prison before his conviction was overturned by a federal appeals court in 2002.

While a freshman at the University of Akron (UA), Lewis was convicted of raping another UA freshman ...

Canadian Prison Sanctioned Skin-Art Saving Society Health Problems

Six Canadian prisons are paying prisoner tattoo-artists to ply their trade. The experimental government training program was initiated as an attempt to reduce the spread of infectious diseases.

Legal tattooing ensures equipment will be sterile and sanitary. Connie Johannson, assistant warden at Manitobas Rockwood Institution, north of Winnipeg, reasons that We consider these harm-reduction approaches to reduce the cost that eventually comes to you in the community, because the majority of our offenders are eventually released to your community and mine, and those costs transferred over to us.

The pilot program was initiated at a cost of $700,000. Prisoners trained as tattoo-artists are paid $6.90 per day while customers pay $5.00 per pattern. Prisoners are lining up to pay the fee. Names, gang logos and designs deemed offensive to the public are not allowed.

Prisoners also praised the idea. Pretty smart thing, said Ray Trottier as he engraved a skull and crossbones on another prisoner. They should have did this years ago.

I think its probably one of the best things they could actually do, said skin-artist Shawn Sorensen. Ive seen a lot of people do tattoos in jail, and Ive seen a lot of stuff done ...

Korean Company Employing Prisoners Receives Coveted Quality Award

A South Korean company employing 70 prisoners at Jeonju Prison to build precision automobile airbag parts won the Single Parts Per Million certificate of quality from the Korean Chamber of Commerce and Industry, and the Small and Medium Business Association.

The February 10, 2006 award commended management at Jinpyeong, Inc., one of the 30 private companies in Korea that employ 1,400 prisoners nationwide at $16/day.

The prisoners initial product defect rate for the 0.03 millimeter error-limit parts was 1 in 8. So, company management became involved in the prisoners lives, even eating and exercising with them, to instill good work ethics. After adding expert technicians to train the prisoners, the companys production record since April 2005 improved to zero defects and a profit of $50,000. One prisoner reported the job gave him great confidence to be able to adjust to post-prison life.

Source: Joongangdailyjoins.com.

California DOC Drug Program Funds Squandered

Five California Department of Corrections and Rehabilitation (CDCR) employees, testifying under subpoena at a February 27, 2006 State Senate Government Oversight Committee hearing, revealed the use-it-or-lose-it practice of spending hundreds of thousands of dollars allotted to prisoner drug treatment programs on such items as guitars, pianos, a portable stage, plasma TVs, lavish furniture and even cars. This suspect result, which the employees were ordered to suppress, resulted from the intersection of two policies: drug treatment contractors under spending their budgets to increase profits, and zero-based budgeting, a state policy that automatically reduces a departments subsequent fiscal year funding allotment by the amount left over from the previous fiscal year.

The Senate hearings focused on why CDCR overspent its $6 billion budget by over $500 million in each of the past two years. CDCR has 34 contracts for helping prisoners beat addictions; fully 65% of California prisoners have a substance-abuse problem. State Senator Jackie Speier was incensed to learn that drug-rehab money, an investment by the Legislature to reduce recidivism and hence prison costs, was instead having the opposite effect, engendering preposterous expenses of money.

A San Francisco Chronicle investigation revealed much abuse. One program at Pleasant Valley State Prison (PVSP ...

North Carolina Prisoner Taps Jails Bank Account for $120,000

A former prisoner of North Carolinas Durham County Jail (DCJ) managed to bilk the jails prisoner account for over $120,000.

After serving 69 days at DCJ, Keith Edward Wright, 34, was issued a check for the balance of the money he had not spent in DCJs canteen. Ordinarily those types of check amount to $10 or less. But Wright had a better idea than cashing his check or so he thought.

Shortly after his release, [Wright] attended a cookout, and he made a general announcement that he could pay bills, said Detective Sgt. Jeremiah Davis. Wright then masterminded more than 250 electronic withdrawals from DCJs bank account. Those withdrawals, which equaled more than $120,000, went to pay dozens of his friends and acquaintances mortgage payments, utility bills and credit card charges.

Davis told people he could consolidate their debts and pay their bills, for a small fee. The payments included $1,300 for one mans credit card bill, $175 toward a womans Sprint account and $525 for anothers power bill.
DCJ knew nothing about the misappropriated funds until SunTrust Bank officials called the sheriffs office to advise that the account was overdrawn by more than $8,000, said ...

Survivors of Texas Jail Suicidee Win $516,000 Against Phone Provider

The mother and son of a prisoner who committed suicide by hanging himself from a telephone in his jail cell won a lawsuit against the phone provider. On appeal, the award was upheld, but some of the costs awarded were not.

Rolando Domingo Montez was 19-years old when he was ...

Muslim Prisoner Attacked by Other Muslims May Sue Prison for Failure to Protect

The Ninth Circuit U.S. Court of Appeals held that a California Muslim prisoner who was attacked by fellow Muslims stated two Eighth Amendment claims against prison officials by alleging that (1) they failed to protect him and (2) that his conditions of confinement during nine months in administrative segregation exposed him to serious health hazards.

Clarence Hearns, Jr. is a Muslim prisoner at Calipatria State Prison. In May 1997, a note was sent to Deputy Warden Sylvia Garcia warning that the ruling Muslim prisoners were trying to force other Muslim prisoners to share their prayer oil. Another note told of intra-Muslim fights being staged in the Muslim chapel. Friction grew between the opposing groups in October 1997. In March 1998, another Muslim was targeted for disputing the ruling groups authority, again over the oil. Hearns was involved in the oils delivery, and was later attacked in the chapel by Muslim prisoner Rushing, who was acting under orders from prisoners Tubbs, Hankins and Irby of the ruling group. Hearns was moved to another yard for his safety.

There, when Hearns began teaching Arabic to fellow Muslims, a rumor circulated that because Hearns did not follow the sunnah (one version of ...

Alabama Sheriff Charged With Raiding Jail Food Fund

Mobile County, Alabama, Sheriff Jack Tilman has been charged with theft and violation of the public officials ethical laws for allegedly taking for personal use funds allocated by the state to feed jail prisoners.

Alabama paid Tilman $1.75 per day to feed the prisoners in the Mobile Metro Jail. Tilman spent an average of $1.45 a day. He allowed the excess to accumulate. It eventually became several hundred thousand dollars Tilman then deposited some of the funds in a personal CD and a retirement account. Tilman maintains that state law authorized him to retain the excess funds. In addition to the criminal charges, the Mobile County district attorneys office filed a civil suit against Tilman seeking recovery of the surplus funds.

Meanwhile, the county has been unable to duplicate Tilmans food budget. In FY 2004, it spent an average $2.64 per day per prisoner for food. In FY 2005, it trimmed the amount to $2.27. Thus, the county has been forced to pay the difference between the amount allocated by the state and the amount actually spent--$1.1 million thus far. The county has also hired a consultant to analyze the jails food preparation and ...

EMSA Negligent In Florida Jail Prisoners Death, County Pays $65,000

EMSA Negligent In Florida Jail Prisoners Death, County Pays $65,000

by Michael Rigby

On April 1, 2005, a jury in the 19th Circuit Court of St. Lucie County, Florida, found EMSA Correctional Care negligent but not liable for damages in a prisoners allegedly drug-related death. EMSAs co-defendant, St. Lucie ...

$790,000 Settlement In Ulcer Death of Georgia Jail Prisoner

In November 2005, Dekalb County, Georgia, a private medical provider, and a local hospital agreed to pay a combined total of $790,000 to settle with the widow of a prisoner who died from a perforated ulcer.

While imprisoned in the Dekalb County Jail, the decedent, 64, was taken to ...

Tolling Provision Appeals to NY Personal Injury Action

The New York Court Of Appeals held that the year-and-90-day period contained in General Municipal Law § 50-; is a statute of limitations (to which the tolling provision of CPLR § 205[a] applies) rather than a condition precedent to suit.

On December 17, 1997, New York City Department of Corrections prisoner Joseph Campbell was being transported in a van. Due to a broken leg, he was in a wheelchair which was not properly secured and fell over during transport, causing Campbell to fall and injure himself.

On March 19, 1998, Campbell filed a timely notice of claim on the City, pursuant to General Municipal Law § 50-e. On March 3, 1999, Campbell brought suit in federal court, but the action was dismissed on April 8, 2002, pursuant to 42 U.S.C. § 1997e(a), for failure to exhaust administrative remedies. The federal court declined to exercise pendent jurisdiction over Campbells state law claims.

On July 10, 2002, Campbell brought a personal injury action in the state Supreme Court against the City and officers involved in a December 17, 1997 incident.

The City moved to dismiss, arguing that the action was time-barred under General Municipal Law § 50-i, which provides that no personal injury ...

No Qualified Immunity for Failure to Perform Timely Liver Biopsy

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals affirmed a ruling by the U.S. District Court (N.D. Cal.) that the failure of a prison health care manager to provide a Hepatitis-C positive (HCV+) prisoner with a timely liver biopsy amounted to deliberate indifference to his serious medical needs and was not protected by qualified immunity.

Markus Tatum, while incarcerated at Californias supermax Pelican Bay State Prison (PBSP), was approved for a liver biopsy by PBSP Health Care Manager Dwight Winslow in January 2001, but treatment was delayed for over a year. Under the terms of the settlement in Madrid v. Gomez, 889 F.Supp. 1146, 1200-27 (N.D. Cal. 1995), qualified PBSP HCV+ prisoners were mandated to have their liver biopsies within six weeks of request. [See: PLN, May 2004, pp.3-4.] This requirement was not abated by Tatums transfer from PBSP in August 2001.

After exhausting administrative remedies, Tatum sued under 42 U.S.C. § 1983. The district courts denial of Winslows motion for summary judgment based upon qualified immunity was reviewed under the recent two-part test of Saucier v. Katz, 533 U.S. 194 (2001) [PLN, June 2002, p.19].

The first ...

Florida District Court Awards Federal Prisoner $829.65 for Lost Property

The U.S. District Court for the Northern District of Florida, Tallahassee Division, has awarded a federal prisoner $829.65 for lost property.

Plaintiff Iris Pereira sued the United States seeking compensation for several items of personal property lost during her transfer from the Federal Prison Camp in Coleman, Florida ...

Texas Court of Criminal Appeals Reinvigorates DNA Testing Law

The Texas Court of Criminal Appeals (CCA) handed down a decision that removed previous restrictions against prisoners seeking DNA testing to prove their innocence.

Billy James Smith, a Texas state prisoner, filed a motion for DNA testing. The court appointed an attorney to represent him. The attorney filed a formal motion for DNA testing and attached an affidavit in which Smith declared his actual innocence of the crime. The trial court denied the motion, reasoning that it had failed to include facts in the affidavit that would establish by a preponderance of the evidence that favorable DNA testing results would establish Smiths innocence. The trial judge granted Smiths motion to take judicial notice of the trial record.

Smiths attorney then appealed. The Court of Appeals affirmed the trial court. Smith filed a pro se petition for discretionary review to the CCA. The CCA granted review and issued an opinion stating that the harsh standard it had set forth in Kunstler v. State, 75 S.W.3d 427 (Tex.Crim.App. 2002) no longer applied to Texas DNA testing motions.

The reason for revisiting the Kunstler standard, which required that a prisoner moving for DNA testing show a reasonable probability exists ...

$769,000 Awarded For Death of Asthmatic Virginia Jail Prisoner

On May 11, 2005, a jury in Portsmouth City, Virginia, awarded $769,000 to the family of an asthmatic prisoner who died in the city jail due to inadequate medical care.

While serving a five day sentence in the Portsmouth jail for driving with a suspended license, Mark Anthony Benthall ...

No Qualified Immunity for Retaliatory Transfer; Jury Awards $219,000 in Damages

The Sixth Circuit Court of Appeals has held that a guard is not entitled to qualified immunity for initiating a retaliatory prison transfer against a prisoner who had complained to the guards supervisor that the guard failed to authorize money disbursements to pay the prisoners lawyer.

Michigan prisoner Darrell Siggers-El ...

California Third-Level Administrative Appeals May Be Filed with Prison Appeals Coordinator

by John E. Dannenberg

The Solano County Superior Court ordered that when a California Department of Corrections (CDC) prisoner files a third (Director) level administrative appeal, he need not mail it via U.S. Mail to the Director of Corrections as noted on the bottom of the Form 602 appeal form, but may submit it to the prison Appeals Coordinator via institutional mail who then has the duty to forward it to the Directors appeals representative.

Michael Brodheim alleged in a habeas corpus petition that the California Medical Facility State Prison (CMF) violated prison regulations by forcing him to use U.S. Mail to deliver a third level appeal to the Inmate Appeals Branch in Sacramento, and thus personally incur the costs of postage. CDC replied that Brodheim had not demonstrated any violation of due process or right of access to the courts. The superior court answered that prisoners have a right to seek enforcement of statutes and regulations and may initiate a habeas proceeding to compel a state or local official to comply with duties imposed on him by regulation, statute or constitutional provision.

At issue was the interpretation of prison regulation § 3084.2, which states At the formal ...

Ohio Pre-S.B. No. 2 Indeterminately Sentenced Prisoners Who Took a Plea are Entitled to Meaningful N

Ohio Pre-S.B. No. 2 Indeterminately Sentenced Prisoners Who Took a Plea are Entitled to Meaningful New Parole Hearings

by John E. Dannenberg

The Ohio State Court of Appeals, Tenth Appellate District, ruled that the class of Ohio state prisoners who, prior to the enactment of S.B. No. 2 in 1996, had pled guilty or no contest to lesser or fewer charges than they were indicted for and who have now reached parole eligibility on their resulting indeterminate sentences, are constitutionally entitled to new meaningful parole hearings. In so ruling, the appellate court resolved some of the inconsistencies that arose when S.B. No. 2 abolished indeterminate sentences for most crimes and set determinate terms that could result in lesser punishment for similar crimes committed after the 1996 enactment.

Douglas Ankrom and numerous other parole-eligible indeterminately sentenced Ohio prisoners who had taken a plea for their convictions had successfully sued Harry Hageman and other officials of the Ohio Adult Parole Authority (OAPA) in the Franklin County Court of Common Pleas. That court agreed with plaintiffs that the OAPAs post-S.B. No. 2 changes to its methods for determining the risk of release of pre-S.B. No.2 indeterminately sentenced ...

Ninth Circuit Holds Prisons Not Immune In ADA and RA Suit

The Ninth Circuit Court of Appeals held that state prisons are not entitled to Eleventh Amendment immunity from suits brought by prisoners under the Americans with Disabilities Act (ADA).

Billy Ray Phiffer, an Oregon state prisoner, filed suit in federal court under the ADA. The state filed a motion for judgment on the pleadings on the grounds of Eleventh Amendment immunity. The district court denied the motion. Oregon filed an interlocutory appeal and the Ninth Circuit affirmed. Oregon then filed a petition for a writ of certiorari in the Supreme Court, which was granted. The Supreme Court vacated the Ninth Circuits opinion and returned the case to the appellate court for reconsideration in light of the Supreme Courts recent decision in Tennessee v. Lane, 126 S.Ct. 1978 (2004), in which it ruled that the ADA validly abrogated Eleventh Amendment immunity.

On remand, the Ninth Circuit held that Oregon was not entitled to Eleventh Amendment immunity under Title II of the ADA. It also held that Oregon had clearly waived its Eleventh Amendment immunity under section 506 of the Rehabilitation Act by accepting federal funds. Therefore, the district courts denial of the motion for judgment on the pleadings was affirmed ...

RLUIPA Bars Total Ban on Melanic Literature

A Michigan federal district court has entered an injunction that bars the Michigan Department of Corrections (MDOC) from continuing a total ban on Melanic literature, requiring MDOC officials to screen such literature to ensure prohibited materials are prevented entry into MDOC prisons.

The courts order comes in a civil rights action filed by MDOC prisoner Fingal E. Johnson, which was certified as a class action and has seen over five years of litigation. Before the court was what it construed as opposing motions for summary judgment.

This action started after MDOC classified the Melanic Islamic Palace of the Rising Sun and its imprisoned members as a Security Threat Group (STG). That classification came after several Melanics were involved in a riot at MDOCs Chippewa Valley prison. Johnson describes the Melanic faith as a religion that is significantly influenced by Islam and other spiritual philosophies. Because of the STG classification MDOC ordered all Melanic materials to be disposed of by prisoners, and placed a blanket ban on all incoming Melanic literature.

The prisoners argued the total ban violated the First Amendment, Due Process Clause, and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Before addressing these questions, the court addressed ...

Alabama Clarifies Prisoners Right to Call Witnesses At Disciplinary Hearing

Alabama Clarifies Prisoners Right to Call Witnesses At Disciplinary Hearing

by Matthew T. Clarke

The Court of Criminal Appeals of Alabama held that prison officials may not use excuses such as off duty or unable to reach by phone to deny prisoners witnesses at disciplinary hearings.

Lebron Luster, an Alabama state prisoner, filed a petition for writ of habeas corpus in state district court when he was convicted of a disciplinary violation after prison officials refused to allow two witnesses to testify for him at the disciplinary hearing. Following the filing of the states response, the district court summarily dismissed the petition. Luster appealed.

Luster was found guilty of violating Rule # E9, Regulation # 403 (absconding -- absent without permission). His punishment included loss of privileges for 45 days and a referral for custody review. Luster alleged that he was removed from work release because of the disciplinary violation. The Alabama Supreme Court had previously held that prisoners have a liberty interest in remaining on work release. Ex parte Berry, 794 So.2d 307 (Ala. 2000).

One of Lusters requested witnesses was his work supervisor. During the disciplinary hearing, prison officials allegedly made a hurried, last-minute telephone call but were unable to ...

Washington Courts Authority to Order Community Custody Limited

Washington Courts Authority to Order Community Custody Limited

A Washington Appeals Court has held that an amended statute limits a trial courts ability to sentence criminal defendants to community custody in only specified offenses. The matter was on appeal after a Spokane County Superior Court denied a petition filed by the Washington Department of Corrections (WDOC), taking a review of the sentences of Tamra A. Jones, Ty J. Jordan, and Donald Konshuk (the defendants).

The Superior Court sentenced each of the defendants to a period of confinement of less than one year followed by a term community custody that had as a condition being evaluated and treated for substance abuse. The Court then imposed the terms of community custody under RCW 9.94A.545, based on its findings that the chemical dependency of the defendants contributed to their committing the crimes of conviction.

The Appellate Court stated that prior to amendment in 2003, RCW 9.94A.545 authorized a superior court to impose community custody in all sentences for felonies that imposed confinement time of one year or less. The amendment, however, limited that authorization to sentences of confinement for one year or less, in which the offender is convicted ...

California Supreme Court Resolves Conflict From Concurrent Sentences With Different Credit Earning R

California Supreme Court Resolves Conflict From Concurrent Sentences With Different Credit Earning Rates

by John E. Dannenberg

The California Supreme Court held that when a prisoner is sentenced to two concurrent prison terms, the shorter of which is for a violent felony eligible only for 15% good-time credits and the longer of which is for a non-violent felony eligible for 1/2 time credits, the prisoner is limited by the 15% rate only for the duration of the shorter sentence, and thereafter may earn 1/2 time credits for the remaining term of the non-violent offense.

James Reeves was sentenced to ten years in state prison for a non-violent drug offense and to five years for a violent assault offense. The ten year term qualified for 1/2 time conduct credit earning while the five year term was restricted to only 15% credit earning under California Penal Code (PC) § 2933.1, since the latter crime was violent. Because the trial judge did not announce that the sentences were to run consecutively, they were presumed to run concurrently (PC § 669(2)).

The California Department of Corrections (CDC) deemed Reeves concurrent sentences to be a single term with a unitary credit earning ...

News in Brief:

Arizona: On February 23, 2006, Jamie Wanek, a guard at the Maricopa county jail in Phoenix was charged with 57 felony and misdemeanor counts of having sex with a jail prisoner Joshua Lopez, 30, and bringing him alcohol, drugs and other contraband. Lopez has also been charged with promoting contraband and unlawful sexual conduct.

Arizona: On May 10, 2006, an unidentified guard at the Perryville prison shot himself in his leg while undergoing weapons qualification training at the prisons firing range.

California: On February 2, 2006, FBI agents arrested Juan Cortes, 34, Anthony Robuffo, 39, Ricardo Campos, 26 and Juan Nieto, 30, all guards at the federal Metropolitan Detention Center in Los Angeles on charges that they took bribes from prisoners in exchange for smuggling cigarettes and cell phones into the jail for them. According to prosecutors, the guards accepted bribes ranging from $1,000 to $6,000 to bring the contraband into the jail. For example, Cortes is accused of accepting a $6,000 bribe in exchange for providing a prisoner with a cell phone and two cartons of cigarettes. Nieto of accepting $1,000 in exchange for two cartons of cigarettes.

China: In December, 2005, the Chinese government ...

Actual Innocence Required in Washington Criminal Malpractice Actions

Actual Innocence Required in Washington Criminal Malpractice Actions

In a 5-4 decision, the Washington Supreme Court held that plaintiffs suing criminal defense attorneys for legal malpractice must prove that they are innocent of the underlying criminal charge.

Dr. Jessy Ang and his wife were prosecuted on 18 criminal counts, including conspiracy to defraud the United States, bank and tax fraud, and filing false statements related to two sets of signed tax forms reporting conflicting income.

The Angs retained attorneys Richard Hansen and Michael G. Martin to defend them. Prior to trial, counsel attempted to get the Angs to plead guilty but they rejected the governments plea offers.

Trial commenced in December 1997. On the fifth day of trial, just prior to the conclusion of the governments case, counsel again attempted to induce the Angs into accepting a plea. They rejected the offer as being the least attractive, yet. They later agreed to plead guilty, however, when Dr. Ang was told his wife could face sexual assault in prison.

Before the pleas were entered, the Angs retained attorney Monte Hester to review the plea discussions and provide a second opinion. Hester concluded the government had not met its burden of proof ...

 

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