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Prisoner Education Guide

Prison Legal News: January, 2007

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Volume 18, Number 1

In this issue:

  1. Ex-Communication: Competition and Collusion in the U.S. Prison Telephone Industry (p 1)
  2. Maryland Sentence Reduction Rule Violates Ex Post Facto Clause (p 12)
  3. From the Editor (p 12)
  4. Violence from Racial Tension and Overcrowding Pervades California Jails, Spreads to Prisons (p 14)
  5. Lawsuit Filed Over Health Care at Wisconsin Women’s Prison, More Possible (p 20)
  6. Vermont DOC Agrees To Stop Punishing Self-Harming Prisoners (p 21)
  7. 200 Dead in Brazil Prison Uprisings, Street Violence (p 22)
  8. California’s “High-Risk” Sex Offender Parolees Ostracized; Parole Official Fired (p 24)
  9. Washington Women’s Prison Healthcare Violations Continue (p 25)
  10. The Prison and Jail Industry—Who Will Run It (p 26)
  11. Washington Prisoners Must Pre-Pay for Record Inspection (p 28)
  12. Illinois Parole Violators Enforce Revocation Due Process Rights with Consent Decree (p 28)
  13. California Lifer Hearing Backlog Increases Despite Court Order To Catch Up (p 30)
  14. Vienna Convention Creates Individually Enforceable Rights (p 30)
  15. Washington Prisoner Sues Over Bogus Disciplinary Actions; State Settles for $1,500 (p 32)
  16. Settlement Revamps Grant County, Washington Indigent Defense System; County Agrees to $1.1 Million in Attorney Fees (p 32)
  17. $214,000 Award for Injuries Caused by Dilantin Deprivation to Michigan Jail Prisoner (p 33)
  18. Illegal Strip Searches Cost MTC, New Mexico County $8.5 Million (p 34)
  19. PLRA’s Mental and Emotional Damage Award Ban Unconstitutional in $219,000 First Amendment Claim (p 34)
  20. Michigan Prisoner Assaulted By Jailers Awarded $2,000 (p 35)
  21. Florida DOC’s Policy Prohibiting Release of Sex Offenders Without Address Unconstitutional (p 36)
  22. Wisconsin “Boondoggled” Into Buying Broken Down New Private Prison (p 36)
  23. Mississippi Beating Suit Nets $348,960 — Upheld on Appeal (p 37)
  24. New York Prison Worker Not Kidnapped/Raped Long Enough For Compensation (p 37)
  25. 5th Circuit Reverses Texas Prisoner’s Disciplinary Conviction For “Non-Existent” Offense (p 38)
  26. Maryland Disciplinary Rules Violate APA (p 38)
  27. Texas Supreme Court: Non-Suit Deprives Appeals Court of Jurisdiction (p 39)
  28. Virginia Guard Hazed By Coworkers Awarded $25,001 (p 40)
  29. Fourth Circuit Holds FTCA Applies to BOP Property Claims (p 40)
  30. Eleventh Circuit Affirms Damage Award in Psychiatrist’s Strangling Death (p 40)
  31. Missouri Prison Ordered to Provide Immediate Abortion (p 41)
  32. Fifth Circuit Reinstates Texas Prisoners’ Challenge to Extended Lockdown (p 41)
  33. Oklahoma Regulation Confiscating Money Order From Other Prisoner’s Family Upheld (p 42)
  34. News in Brief: (p 42)
  35. Tenth Circuit Reinstates Colorado Ad Seg Conditions Claims (p 44)

Ex-Communication: Competition and Collusion in the U.S. Prison Telephone Industry

by Steven J. Jackson

The prison communication industries occupy a large and significant blind spot within the literature of critical communication scholarship and the social sciences more generally. Professional arguments around crime, punishment and the American prison system have dealt with communication issues as a footnote, if at all.

For their part, communication scholars have largely ignored the question of prisons, neglecting almost entirely their unique communicative forms, institutions, and industrial structures. But as historians and social theorists have come to appreciate, prisons often mirror, in uncanny and revealing ways, the societies that produce them. So too in the more specific institutional world of correctional communications, whose distinctive characteristics speak to pressing issues in the field of communication writ large: the dangers and abuse of monopoly power; the attendant need (and frequent failure) of regulation; the sometimes dubious marriage of state and corporate interest; and ultimately the role of social movement and citizen mobilization in moderating the worst abuses of state and corporate power.

This article tells a small but important part of the larger prison communication story: the rise in the 1990s of a deeply inequitable pricing scheme that has seen the cost of prisoner phone calls skyrocket, even ...

Maryland Sentence Reduction Rule Violates Ex Post Facto Clause

The Maryland Court of Appeals has struck down an administrative regulation amending another regulation to deny previously authorized sentence reduction credits for certain categories of prisoners.

In January of 2002, Quinton Demby, Jesse Baltimore, Kenneth Woodall, Daniel Falcone, and Earl Cox were all serving time in Maryland state prisons. Each was participating in a ?double celling? program (cells with 2 occupants rather than one). Under the former Code of Maryland Regulations (COMAR) 12.02.06.05N(2), which was in effect when they committed their crimes, they were receiving special sentence reduction credits for participating in the double celling program.

On January 1, 2002, the Secretary of the Maryland Public Safety and Correctional Services (Secretary) enacted COMAR 12.02. 06.04F(1), which prohibited sentence reduction credits for participating in the double celling program to prisoners convicted of certain violent crimes. Since the above prisoners each had prior convictions for one or more of the newly enumerated disqualifying crimes, each was informed that he was no longer eligible for those sentence reduction credits. Maryland trial courts upheld that retrospective application of the amended policy to them, and they all appealed.

The Maryland Court of Special Appeals reversed the trial courts ...

From the Editor

Welcome to the first issue of PLN for 2007. With this issue, PLN now enters it?s 17th year of publishing. We have several important goals for the coming year so we can better serve our readers. Among them are expanding the size of the magazine to bring readers still more news and information. In the past we have expanded based on increasing the amount of advertising in PLN and we hope to do this in the future, maintaining our commitment to having no more than 25% of our content being advertising.

If you know of any businesses who might be interested in advertising in PLN or which cater to prisoners please send their contact information to PLN so we can follow up on it. By the same token, if you patronize any of PLN?s advertisers, please tell them that you saw their ad in PLN as it encourages them to continue advertising with us.

Our other goals are updating our mailing list program and further improving our website and increasing our outreach activities to build our readership. PLN currently has over 5,000 subscribers and we hope to significantly increase it in the coming year.

By now all ...

Violence from Racial Tension and Overcrowding Pervades California Jails, Spreads to Prisons

by Marvin Mentor

Los Angeles (L.A.) County jail prisoners have been locked in interracial gang-controlled violence for the past year, and the unrest has spread to other jails and into California state prisons as prisoners pursue their simmering racially-charged disputes. Future stability seems doubtful. If California's prison system "desegregates," as projected pursuant to Johnson v. California, 125 S.Ct. 1141 (2005) [PLN, April 2006, p.20], the disturbing events described below portend a perpetuation of heated violence extending into an endless "long, hot summer."

November 2005 - L.A. Jail Murder

On November 16, 2005, 35-year-old mentally ill prisoner Chadwick Cochran was brutally beaten for 30 minutes, assaulted with metal trays and finally stomped to death at the L.A. Central Jail in an unsupervised room with 30 other prisoners. Cochran had unwittingly made the mistake of "ethnically out of order" cutting the line for dinner. Sheriff's deputies later acknowledged that it was improper to have placed Cochran in with the hardened prisoners. "He was a fish out of water ... in the shark tank," Sheriff Lee Baca admitted, noting that the prisoners who killed Cochran were young gang-bangers awaiting trial on various assault and murder charges. Cochran was ...

Lawsuit Filed Over Health Care at Wisconsin Women’s Prison, More Possible

Lawsuit Filed Over Health Care at Wisconsin Women's Prison, More Possible

by Michael Rigby

The medical, dental, and mental health care provided to female prisoners at the Taycheedah Correctional Institution in Fon du Lac, Wisconsin, is so "grossly deficient" that it constitutes cruel and unusual punishment, according to a federal class-action lawsuit filed by the American Civil Liberties Union (ACLU) on May 1, 2006. The suit--brought in the U.S. District Court for the Eastern District of Wisconsin under 42 U.S.C. § 1983; Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132; and § 504 of the Rehabilitation Act, 29 U.S.C. § 794--lists numerous examples of human suffering due to spurious health care and inadequate staffing. It also contends that women receive mental health care that is far inferior to that afforded male prisoners. The findings of a Department of Justice (DOJ) report released the same day makes similar accusations regarding conditions and treatment for mentally ill women.

Health care at Taycheedah has long been dysfunctional. The issue was spotlighted in February 2000 following the death of Michelle Greer, 29. Guards had twice gone to the prison's infirmary seeking help for ...

Vermont DOC Agrees To Stop Punishing Self-Harming Prisoners

On May 18, 2006, the Vermont Department of Corrections (VDOC) settled a class-action lawsuit by agreeing to stop punishing prisoners who harm themselves. The VDOC further agreed to implement training, retain consultants, and document the mental health assessments of self-harming prisoners. Additionally, the VDOC will pay the litigation costs incurred, by Vermont Protection and Advocacy (VPA), a federally funded law office established under the Protection and Advocacy of Mentally Ill Individuals Act of 1986 (PAMII) to represent disabled prisoners.

The VPA?s lawsuit, filed pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1983, alleged the VDOC maintained an offensive and inhumane policy of punishing self-harming prisoners by segregating them, using unnecessary force, and taking away privileges. ?There are numerous instances of [these prisoners] being pepper sprayed, assaulted, isolated, restrained, held naked or barely clothed, and losing various privileges, including liberty, visitation and programming, based on self-harming behavior related to their disabilities for which they did not receive adequate treatment,? the lawsuit says.

One prisoner cited in the suit was confined in punitive segregation after slashing her throat in the prison shower. She was upset because her grievances regarding inadequate mental health care had been ignored.
Another ...

200 Dead in Brazil Prison Uprisings, Street Violence

In May 2006, approximately 200 people were killed in Sao Paulo, Brazil as gang members of the Primerio Comando da Capital ? the First Capital Command, known by its Portuguese initials, PCC ? clashed with police in the streets and rioted in prisons.

The violence began after prison officials learned of a plot by the PCC to take control of several prison units on Mother?s Day. When 765 gang members were slated for transfers to more secure facilities in an effort to thwart the planned takeover, PCC leaders activated their members both inside and outside the prisons.

On May 12, 2006, prisoners took about 200 hostages, including visiting family members and guards. Communicating by cell phone, PCC leaders inside the prison then mobilized members on the outside, who launched attacks on the police. Gang members used machine-guns, grenades and homemade bombs to attack police stations and police cars. Policemen were also killed in bars and at their homes. By the end of the day over 55 attacks had left 19 police dead.

?They have struck at the spinal cord ... of our security,? said Sao Paulo State Security Secretary Saulo de Castro Abreu Filho.

Fighting escalated on May 13 as PCC members ...

California’s “High-Risk” Sex Offender Parolees Ostracized; Parole Official Fired

California's "High-Risk" Sex Offender Parolees Ostracized; Parole Official Fired

by John E. Dannenberg

California's 2,000 "high-risk" sex offenders (HRSOs) currently on parole are increasingly being ostracized following relentless publicity as to their whereabouts, forcing parole officials to continuously find new housing for them after concerned citizens run them out of town.

An abrupt eviction of twelve HRSOs from a motel in Vallejo caused unprepared parole agents to temporarily house the "dirty dozen" on the grounds of nearby San Quentin State Prison in Marin County. The resulting NIMBY ("not in my backyard") brouhaha raised by conservative Marin County legislator Joe Nation led Governor Schwarzenegger to sacrificially fire Jim L?Etoile, director of the state's parole division, on May 10, 2006.

California has over 80,000 released sex offenders, 7,500 of whom are currently on parole. The whereabouts of all these ex-offenders (those required to register) are publicly available on the Internet. HRSOs get special publicity and monitoring, particularly if they were civilly committed as Sexually Violent Predators (SVPs) following the expiration of their prison sentences. SVPs are incarcerated by the Department of Mental Health (DMH) until they either "graduate" from a multi-year treatment program or simply ...

Washington Women’s Prison Healthcare Violations Continue

Washington Women?s Prison Healthcare Violations Continue

As we've reported extensively, health care at the Washington Corrections Center for Women (WCCW), has been woefully inadequate for decades. Reform efforts have been underway since 1993, but the more things change, the more they stay the same.

In addition to a ...

The Prison and Jail Industry—Who Will Run It

The Prison and Jail Industry--Who Will Run It

by Gary Hunter

With the huge growth in American prisons between 1980 and 1990, the American Correctional. Association (ACA) went looking in the past to solve both foreseeable and current problems. It quickly found that the problems facing the new detention industries were unprecedented.

In 2000, the National Institute of Corrections published a study entitled Recruitment/ Hiring, and Retention: Current Practices in U.S. Jails.

Although the report was limited to 17 jails, it gave a good spring board for a new, nationwide study.

In 2002, the ACA propositioned the Bureau of Justice Assistance (BJA) to create a specific strategy and plan that the detention industry could implement in the recruiting, training and keeping of quality prison staff.

The following year, the ACA received a grant from the BJA. The funds were slated to assess the challenges facing the laboring detention industry. The project was named Building a Strategic Workforce Plan for the Corrections Profession and conducted by Workforce Associates in Indianapolis.

First, in this tri-phase project, was a "Discovery Phase." The objective was to collect statistics, nationwide, regarding the problems associated with the current workforce and recruitment.

Second, the "Create Phase ...

Washington Prisoners Must Pre-Pay for Record Inspection

The Washington Court of Appeals has affirmed a lower court?s refusal to require the Washington Department of Corrections (WDOC) to allow prisoners to inspect records without pre-payment of copy and postage expenses.

WDOC Policy No. 280.510 grants prisoners a right of access on demand only to documents in their own file. Any other [d]ocuments approved for disclosure are copied and mailed only after a 20 cent per page copying charge and postage expenses are received.

WDOC prisoner Brandt Sappenfield made several written requests to inspect certain Corrections records (not his own file)... under RCW 42.17, Washington's public disclosure act (PDA). Citing Policy No. 280.510, the prison's public disclosure coordinator compiled 187 pages of documents requested by ... Sappenfield and told him that these would be mailed upon receipt of $46.62.

Sappenfield treated this response as a denial of his PDA requests, and filed an administrative appeal challenging the validity of the Corrections policy.Sappenfield alleged the policy was contrary to RCW 42.17.270 through .290 and was invalid on its face and as applied to his request.

WDOC's central PDA administrator denied the appeal because the requested records were not part ...

Illinois Parole Violators Enforce Revocation Due Process Rights with Consent Decree

by John E. Dannenberg

The class of all Cook County, Illinois parole violators was granted a preliminary injunction by the U.S. District Court, Northern District, Eastern Division, ordering the Illinois Department of Corrections (IDOC) to conduct preliminary parole revocation hearings within ten days after arrest, at or near the ...

California Lifer Hearing Backlog Increases Despite Court Order To Catch Up

The Marin County Superior Court, which had directed the California Board of Parole Hearings (Board) to take the necessary steps to cut its lifer hearing backlog in 2001 when it was 2,058 hearings behind (and would take 21 months to abate), was distressed to learn in February 2006 that the backlog had increased 55 % to 3,200 overdue hearings. The Honorable Verna Adams further ordered the Board not to ?remedy? lifer hearing untimeliness by arbitrarily issuing multi-year parole denials.

Judge Adams accepted the untimely-hearing plight of California?s lifers as a state-wide habeas corpus class action in In Re Rutherford.
Originally, in 2001, this writer had assisted Jerry Rutherford in his habeas petition protesting that his overdue hearing was long past the statutory limit of two years. After giving him a belated hearing (parole denied), the Board was again way late for his subsequent hearing. Upon Rutherford?s renewed complaint, Judge Adams re-opened the case and appointed the Prison Law Office (PLO) as class counsel.

On February 15, 2006, the court defined the class as ?all prisoners serving indeterminate terms of life with the possibility of parole, and who have approached or exceeded their MEPDs [minimum eligible parole date ...

Vienna Convention Creates Individually Enforceable Rights

by Matthew T. Clarke

In a ground-breaking decision the Court of Appeals for the Seventh Circuit held that the Vienna Convention on Consular Relations (Vienna Convention) created individual rights to consular notification that may be enforced in a civil action. Thus, the Seventh Circuit allowed a former state prisoner who had not been afforded his Vienna Convention right to consular notification to sue, in federal court, the state officials who denied him those rights.

Tejpaul S. Jogi, a citizen of India and former Illinois state prisoner, was charged with aggravated battery with a firearm in Champaign County, Illinois. He pleaded guilty and was sentenced to twelve years in prison, but was removed to India after having served six of the twelve years.
During his incarceration, Jogi learned of his Vienna Convention right to consular notification. Because no state official had ever notified him of his Vienna Convention rights, he filed a lawsuit against various police and prosecution officials in federal court under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. The ATS establishes jurisdiction for federal district court in cases where a tort is committed against an alien in violation of a treaty of the United States. The ...

Washington Prisoner Sues Over Bogus Disciplinary Actions; State Settles for $1,500

The Washington State Department of Corrections (DOC) has paid one of its prisoners $1,500 to dismiss a civil rights action he filed after disciplinary actions taken against him were vacated for being unlawful.
Lonnie Burton is a Washington state prisoner who, in April of 2001, was serving time at ...

Settlement Revamps Grant County, Washington Indigent Defense System; County Agrees to $1.1 Million in Attorney Fees

Grant County, Washington entered into a sweeping settlement to resolve a class-action lawsuit alleging that its indigent defense system was constitutionally deficient.

Prior to February 12, 2004, Grant County ?maintained a contract system of providing for the defense of indigent? felony defendants. The County ?contracted with one attorney or law ...

$214,000 Award for Injuries Caused by Dilantin Deprivation to Michigan Jail Prisoner

A Michigan federal jury awarded a former prisoner $214,000 in damages for injuries caused by policies at the Grand Traverse County Jail that failed to assure she received her Dilantin.

The plaintiff in this case, Amy Lynn Ford, was on probation for a domestic assault conviction. The evening before ...

Illegal Strip Searches Cost MTC, New Mexico County $8.5 Million

Management and Training Corporation (MTC) and Santa Fe County, New Mexico, will pay $8.5 million to settle with an estimated 13,000 former prisoners who were unconstitutionally strip searched at the Santa. Fe County Detention Facility between January 2002 and June 2006. The Utah-based MTC, which operated the jail ...

PLRA’s Mental and Emotional Damage Award Ban Unconstitutional in $219,000 First Amendment Claim

PLRA's Mental and Emotional Damage Award Ban Unconstitutional in $219,000 First Amendment Claim

A Michigan federal district court has held that the Prison Litigation Reform Act?s (PLRA) prohibition of mental or emotional damages without physical injury is unconstitutional as applied to First Amendment Violation Claims.

A jury ...

Michigan Prisoner Assaulted By Jailers Awarded $2,000

On June 9, 2006, the U.S. District Court for the Eastern District of Michigan awarded $2,000 to a prisoner who was beaten by jailers in the Macomb County Jail.

While imprisoned at the jail on October 27, 2004, plaintiff William F. Diaz claimed he was beaten by jailer ...

Florida DOC’s Policy Prohibiting Release of Sex Offenders Without Address Unconstitutional

Florida DOC's Policy Prohibiting Release of Sex Offenders Without Address Unconstitutional

by David M. Reutter

In October, 2005, a Florida Circuit Court has held that a Florida Department of Corrections (FDOC) policy that requires a sex offender to provide a physical address or face indefinite imprisonment is unconstitutional.

Christopher A. Daughtry was convicted on June 23, 2000, of lewd or lascivious assault upon a child. He was sentenced to a split sentence of seven years imprisonment to be followed by five years of sex offender probation. Daughtry reached the end of his term of imprisonment on August 6, 2005. Before he was physically released, the FDOC performed a warrantless arrest for a purported violation of probation. The stated basis for the arrest was Daughtry's failure to provide an address where he would reside when released to probation.

Under Florida law, sex offenders with a victim under eighteen years of age are prohibited from "living within 1,000 feet of a school, day care center, park, playground, or other place" where children regularly congregate. Florida law also requires FDOC to report information concerning sex offenders, including an offender's intended residence if known, to the Florida Department of Law ...

Wisconsin “Boondoggled” Into Buying Broken Down New Private Prison

Wisconsin "Boondoggled" Into Buying Broken Down New Private Prison

After buying a private prison for $87.1 million, the Wisconsin Legislature is crying foul upon discovering the Stanley prison violates electrical, plumbing, and safety codes that will cost $5 million to repair. It's turning out that the entire situation, from the building of the prison to its purchase by taxpayers, was influenced by political lobbyists who had legislators on the take.

The Stanley prison, which confines 1,511 prisoners, was built by Dominion Asset Services in Edmond, Oklahoma. To build a prison in Wisconsin, the Legislature and Governor must agree with what is needed and the Building Commission must formally approve the plan. That process was circumvented to build the Stanley prison.

After the prison was built Attorney General, now Governor, Jim Doyle advised legislators that no prisoners could be housed at the prison unless the state leased or bought it. Dominion went into action after that opinion was issued in 2001.

Dominion hired lobbyists to push the Legislature to buy the prison. To help grease that wheel, Dominion gave $125,000 to Independent Citizens for Democracy, a campaign group illegally controlled by Senate Majority Leader Chuck Chvala (D-Madison ...

Mississippi Beating Suit Nets $348,960 — Upheld on Appeal

Mississippi Beating Suit Nets $348,960 -- Upheld on Appeal

The Fifth Circuit Court of Appeals has upheld a Mississippi district court's award of damages after a bench trial. The civil rights action was brought by Mississippi prisoner Stephen Michael Combs against Norris W. Kennedy, an employee at Combs' prison ...

New York Prison Worker Not Kidnapped/Raped Long Enough For Compensation

On December 28, 2004, a 52-year old female employee at New York?s Camp Cass juvenile facility was accosted by 16-year old Michael Elston who choked her, banged her head against a wall and raped her at knife-point. Elston then forced his hostage into her car and drove around for six hours before she managed to escape.

The victim said she and her captor traveled ?for 50 miles, both inside and outside this facility, at times within several feet of the youth detention aides and other residents and nobody came to my aid.?

But being beaten, raped, strangled and held at knife point for six hours was not enough to garner the detention facility worker union insurance compensation. Union insurer JLT Services has a captive clause that only covers workers who are kidnapped for eight hours or more.

The victim?s doctor sent a letter in September 2005 to the Civil Service Employees Association (CSEA) stating that the victim would never be physically or emotionally able to return to work. CSEA Capital Region President Kathy Garrison personally requested JLT Services, the union?s insurer, to waive the eight-hour limit for the captive clause of its policy. A waiver, if granted ...

5th Circuit Reverses Texas Prisoner’s Disciplinary Conviction For “Non-Existent” Offense

5th Circuit Reverses Texas Prisoner's Disciplinary Conviction For "Non-Existent" Offense

by Michael Rigby

The U.S. Fifth Circuit Court of Appeals held there was no evidence to sustain a Texas prisoner's disciplinary conviction for assaulting a guard and that the district court erroneously construed the prison's disciplinary code.

Texas state prisoner George Cleron Morgan allegedly assaulted prison sergeant M. Hunt on January 28, 2003 after Hunt had stopped him to inspect an envelope he was carrying. Following a strip search Morgan demanded that Hunt return the envelope. When the envelope was not forthcoming, Morgan charged Hunt, hitting Hunt's left shoulder with his own.

Hunt proceeded with a disciplinary report charging Morgan with a Level 1, Code 3.3 offense, which the September 2003 edition of the prison disciplinary handbook defined as "assaulting an officer, or any other person who is not an offender, without a weapon, which results in a non-serious injury." Morgan was found guilty and received punishment consisting of 45 days commissary and recreation restriction, 42 hours of extra duty, 15 days of solitary confinement, reduction in time earning status from Line 1 to Line 3, and the loss of 180 days of earned ...

Maryland Disciplinary Rules Violate APA

The Maryland Supreme Court invalidated prison disciplinary ?directives? because they were not adopted in conformity with the State Administrative Procedure Act (APA).

Under the Maryland APA, all state agencies must follow certain procedures when adopting ?regulations? as defined by the APA. The APA excludes statements concerning only internal management from the definition of ?regulation.?

The Department of Public Safety and Correctional Services (DPSCS) and Division of Corrections (DOC), adopted numerous regulations. ?Most of the rules governing operation of the state correctional facilities, however, and especially those dealing with inmates, are in the form of ?directives? adopted ... without any pretense of compliance with? the APA, stated the Court.

On June 19, 2002, Maryland prisoner Richard Massey filed an administrative review request, alleging that he was being subjected to prison discipline pursuant to DPSCS D105-4 and 105-5, which violated the APA. The Inmate Grievance Office (IGO) determined that the challenged directives were not regulations as defined in the APA, and did not need to be adopted as such.

Massey then filed a petition for judicial review in state court. Following a hearing, the court affirmed the IGO decision but did not indicate why.

Massey appealed to the Court of Special Appeals, but ...

Texas Supreme Court: Non-Suit Deprives Appeals Court of Jurisdiction

The Supreme Court of Texas held that a plaintiff?s filing non-suit while an appeal was pending deprived the court of appeals of jurisdiction and any authority to enter an order, holding or opinion.

Darla Blackmon, a Texas state prisoner, died of pneumonia while being held at a substance abuse facility operated by the University of Texas Medical Branch at Galveston (UTMB). Her daughter, Sheila Shultz, filed suit against UTMB for wrongful death, alleging UTMB failed to diagnose and treat Blackmon?s illness. Shultz claimed that the Texas Tort Claims Act waived the state?s sovereign immunity because the case involved personal injury caused by a condition or use of tangible personal property. See: § 101.021(2), Texas Civil Practice and Remedies Code. UTMB filed a plea to the jurisdiction. The trial court denied the plea, and UTMB filed an interlocutory appeal in the court of appeals.

The court of appeals reversed the denial and rendered judgment in UTMB?s favor. Shultz filed a motion for rehearing, which the court of appeals granted. Three weeks later Shultz filed non-suit (a voluntary dismissal of the underlying lawsuit), and moved to dismiss the appeal for want of jurisdiction. The court of appeals ...

Virginia Guard Hazed By Coworkers Awarded $25,001

On March 1, 2006, a jury in the U.S. District Court for the Western District of Virginia awarded $25,001 to a prison guard who was subjected to a humiliating hazing ritual by his coworkers.

Guard Terry Givens was promoted to sergeant on December 21, 2000, while working at ...

Fourth Circuit Holds FTCA Applies to BOP Property Claims

The Fourth Circuit Court of Appeals joined the Sixth, Seventh and District of Columbia Circuits in holding that Bureau of Prisons (BOP) guards are not ?law enforcement officers? for purposes of 28 U.S.C. § 2680(c). The Fifth, Eighth, Ninth, Tenth, Eleventh and Federal Circuits disagree.

BOP prisoner Anthony Andrews was temporarily transferred between prisons for a hearing. He left most of his legal materials at the original prison because he was going to be returning. Guards later packed up his property and shipped it out of the prison. The property was lost.

Andrews filed an administrative claim, seeking damages for the missing property. BOP denied the claim and Andrews brought suit against the United States under the Federal Tort Claims Act (FTCA), alleging BOP employees negligently lost his property.

The government moved to dismiss on sovereign immunity grounds. The district court granted the motion, concluding that BOP officials ?were ?law enforcement officer[s]? for purposes of § 2680(c)?s exception to the waiver of sovereign immunity.? It then found that the government ?had not waived sovereign immunity for suits against BOP officers? on property claims, and dismissed for lack of subject-matter jurisdiction.

The Fourth Circuit noted that the ...

Eleventh Circuit Affirms Damage Award in Psychiatrist’s Strangling Death

Eleventh Circuit Affirms Damage Award in Psychiatrist's Strangling Death

The Eleventh Circuit Court of Appeals has affirmed a jury's verdict awarding a psychiatrist's widow $1.3 million judgment against Florida's Collier County Sheriff. PLN previously reported this verdict, which was predicated upon the strangling death of ...

Missouri Prison Ordered to Provide Immediate Abortion

A federal court in Missouri granted an injunction to a female prisoner, requiring the Women?s Diagnostic and Correctional Center (WERDCC) to transport her for an immediate abortion.

Prisoner Roe was approximately 16-17 weeks pregnant and had been requesting an abortion while confined at WERDCC. No such services were available there and prison officials refused to transport Roe to the community for an abortion.

Roe brought suit alleging that WERDCC?s policy of refusing to allow abortions that are not medically necessary violated her constitutional rights. She moved for a preliminary injunction, requiring Defendants to transport her to a local health care provider for an abortion.

On October 13, 2005, the court granted the injunction, finding that all of the requisite factors tipped in Roe?s favor. On October 14, 2005, Defendants moved to stay execution of the preliminary injunction. The court denied the motion, however, finding that it was ?merely a recitation of the points in opposition made at the October 13, 2005 Preliminary Injunction Hearing.? The Court then ordered that Roe be transported October 15, 2005 for the abortion.

The court indicated that an application to the Eighth Circuit Court of Appeals ?for a stay of this Modified ...

Fifth Circuit Reinstates Texas Prisoners’ Challenge to Extended Lockdown

Fifth Circuit Reinstates Texas Prisoners' Challenge to Extended Lockdown

by Michael Rigby

The U.S. Fifth Circuit Court of Appeals reinstated a prisoner lawsuit challenging the Texas Department of Criminal Justice's practice of indefinite segregation without due process.

C. Joseph Salazar and Johnny Maldonado are Texas prisoners who have been confined in administrative segregation (ad seg) for more than 15 years based on alleged gang affiliation. The pair sued TDCJ, pro se, under 42 U.S.C. § 1983 claiming its review procedures violated their Fourteenth Amendment due process rights. Specifically, the prisoners contended the procedures were a "sham" and that the State Classification Committee (SCC) had no power to release them from segregation. In May 2005, the U.S. District Court for the Southern District of Texas dismissed their suit as frivolous and for failure to state a claim.

On appeal, the Fifth Circuit vacated and remanded to the district court for reconsideration in light of Wilkinson v. Austin, 125 S.Ct. 2384 (2005), which was decided in June 2005 following the dismissal.

In Wilkinson, a class of prisoners confined for indefinite periods in Ohio's supermax prison contended that inadequate review procedures violated their constitutional right to due ...

Oklahoma Regulation Confiscating Money Order From Other Prisoner’s Family Upheld

Oklahoma Regulation Confiscating Money Order From Other Prisoner's Family Upheld

The Tenth Circuit Court of Appeals has upheld an Oklahoma State Penitentiary (OSP) regulation that allows money sent to prisoners by a person on another prisoner's visitation list to be classified as contraband and confiscated by OSP.

The action was brought by OSP prisoner George W. Steffey, alleging due process violation by depriving him of property. Pam Grubb, the mother of another OSP prisoner, sent Seffey a fifty-dollar money order. Upon receipt, OSP officials gave Steffey notice that Grubb was on another prisoner's visit list, and that under OSP-120230-02 the money order was contraband and was being confiscated without opportunity to return to the sender.

Steffey filed administrative remedies, which were denied, before he brought his civil rights action. The Oklahoma federal district court granted prison officials summary judgment, holding that because the money had never been deposited into Steffey's "inmate trust account," he never acquired a "property interest in the contraband money order."

While agreeing with the district court?s ruling, the Tenth Circuit took the matter a step further. First, that court said OSP officials had a legitimate interest to prevent prisoners "from using ...

News in Brief:

California: On November 17, 2006, Orange county jail prisoners Garrett Aguilar, 23; Stephen Carlstrom, 38; Michael Garten, 21; Eric Miller, 21; Jared Petrovich, 22 and Christopher Teague, 30, were charged with the murder of jail prisoner John Chamberlain, 41, who was beaten to death on October 5, 2006. Chamberlain was in jail for possession of child pornography. His was the first murder in the Orange county jail since 1988.

Cambodia: On June 18, 2006, eight prisoners and one prisoner guard at the Battambang prison were killed when several dozen prisoners attempted to escape by taking a guard hostage. When police surrounded the prisoners and their hostage guard the prisoners? leader detonated a hand grenade killing himself and the other seven prisoners and their hostage. No prisoners escaped. A week earlier on June 11, 12 pre trial detainees escaped from the Prey Sar prison in Phnom Penh by cutting through the bars.

Illinois: On October 6, 2006, an autopsy on Dennis Lane, 35, who had collapsed while in custody at the Peoria county jail, discovered 8 ruptured plastic bags of unidentified drugs in his stomach. Lane had been arrested on drug charges earlier.

Iowa: On November 1, 2006, Deke Gliem, 75 ...

Tenth Circuit Reinstates Colorado Ad Seg Conditions Claims

The United States Court of Appeals for the Tenth Circuit has reversed a Colorado state prisoner?s administrative segregation (Ad Seg) conditions of confinement claims which were dismissed as frivolous by the United States District Court for the District of Colorado.

Ronald Fogle was housed in continuous Ad Seg confinement in three state prisons from September 2000 to August 2003. He was locked down all but five hours per week and alleges he was denied access to a telephone, showers, outdoor exercise, law library, and programs offered to the general population.

In June 2005, Fogle filed a 42 U.S.C. § 1983 complaint alleging numerous claims. He sought pauper status which was granted. He then paid the entire filing fee but because pauper status was initially granted, the district court undertook a review of the claims for frivolousness pursuant to 28 U.S.C. § 1915(e)(2)(B)(I). All claims were dismissed as frivolous.

On appeal, the Tenth Circuit held that a due process claim stemming from Ad Seg placement hearings was not frivolous. The district court abused its discretion in concluding Fogle?s three-year Ad Seg placement was not atypical and significant, under Sandin v. Conner, 115 S ...

 

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