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Prison Legal News: October, 2007

Issue PDF
Volume 18, Number 10

In this issue:

  1. Little State, Big Problems: Maine’s Prison Crisis Continues Unabated (p 1)
  2. Old Media Access Consent Decrees Violated in Maine (p 8)
  3. Massachusetts District Court: FBI Ordered to Pay $101.7 Million for Malicious Prosecution (p 10)
  4. From the Editor (p 10)
  5. Clarification: (p 12)
  6. Maryland Prison Audit Reveals Potential Fraud “Undetectable” (p 12)
  7. Florida Supreme Court Enacts Rules Regulating “Super Sealing” of Court Records (p 13)
  8. Final Report on Ohio Prisoner Reentry Study (p 14)
  9. Minnesota Sanction for Sex Offender Treatment Refusal Violates Fifth Amendment (p 14)
  10. “War on Terror” Whistleblowers, Dissenters are Fired, Prosecuted; Plaintiff’s Lawyers Help Turn Them In (p 16)
  11. Arkansas Prisoner Denied Kosher Diet Awarded $1,500 (p 17)
  12. Psych Evaluations Questioned Following D.C. Jail Suicides (p 18)
  13. NY Prisoner Who Crushed Thumb Working at Ski Resort Awarded $40,000 (p 18)
  14. Illinois Supreme Court Holds Prisoner Medical Co-Payment Fee Can’t Be Deducted From Future Funds (p 20)
  15. California’s Solution To Prison Overcrowding: $7.4 Billion To Build 53,000 New Beds (p 20)
  16. $4 Million Settlement In Rape and Beating Death of Mentally Ill New Jersey Prisoner (p 22)
  17. $14 Million Verdict Against Louisiana DA’s Office for Wrongful Death Sentence (p 22)
  18. Fortress Of Solitude: The Bureau Of Prisons Is As Good At Keeping Prisoners In As It Is At Keeping Reporters Out (p 24)
  19. South Carolina Prisoner Assaulted By Guards Awarded $600,000 (p 25)
  20. Wyoming and CMS Settle Suit Over Diabetic Prisoner’s Loss of Foot (p 26)
  21. San Mateo County, California, Settles Strip-Search Suit for $1.9 Million (p 26)
  22. Tenth Circuit Upholds BOP Guard’s Abuse Convictions (p 27)
  23. Texas Parole Board Revamps Urinalysis Procedures (p 28)
  24. GAO Audit: Alien Detention Facilities Suffer Continuing Deficiencies (p 28)
  25. Los Angeles County Pays $475,000 In Jail Healthcare Wrongful Death (p 29)
  26. Texas Pays $250,000 for Lingering Death of Teen Prisoner (p 30)
  27. U.S. Supreme Court: Colorado Prisoner Alleging Injury From Suspension Of Medical Treatment Stated Adequate Claim To Preclude Dismissal (p 30)
  28. Massachusetts Guard Accused of Throwing Feces Entitled to Workman’s Compensation (p 31)
  29. New Jersey Supreme Court Orders DOC to Codify Prisoner Healthcare Responsibilities (p 32)
  30. $1.6 Million Settlements by PHS and Hillsborough County in Death of Baby Born in Florida Jail (p 32)
  31. Confidential Settlement for Alabama Prisoners Killed in Road Work Crew (p 33)
  32. Eighth Circuit Reverses Summary Judgment Dismissal of Excessive Force Claims (p 33)
  33. $100 Million In Restitution Fines Collected From California Prisoners Since 1992 (p 34)
  34. Probation Condition Restricting Pets at Residence Held Overbroad (p 34)
  35. New Law Bars Hawaii Prison Officials from Canceling Visits (p 34)
  36. Absence of Parole Revocation Administrative Appeal Process Entitles Prisoner to Trial Court Determination of Custody Credits (p 35)
  37. BOP May Not Foreclose Transfer to Community Corrections Center Based on Length of Remaining Sentence (p 36)
  38. “Liberal” Pleading Construction Reveals Negligent Guard Theory Claim (p 36)
  39. Findings of Fact by Indiana Disciplinary Panel Not Entitled toPresumption of Correctness for Federal Habeas Purposes (p 37)
  40. Texas Allows Actual Innocence Claim in Non-Capital Habeas Actions (p 38)
  41. Unsupported Penile Plethysmograph Testing as Condition of Release Rises to Due Process Violation, Creates Liberty Interest (p 38)
  42. Mere Possibility of Parole Insufficient to Prevent Texas Prisoners’ Parental Rights Termination (p 39)
  43. Many Chinese Prisoners Retain Right to Vote (p 39)
  44. Ohio Juvenile Wards Entitled to Attorneys to Pursue 1983 Actions (p 40)
  45. On Appeal Texas Prisoner Acquitted of Damaging Jail Furnishing (p 40)
  46. Fifth Circuit Reverses Dismissal of Mississippi Retaliation For Letters to a Newspaper Claim (p 41)
  47. News in Brief: (p 42)
  48. Notice of Appeal Deemed Filed When Presented to Prison Officials; Burden on State to Refute (p 44)

Little State, Big Problems: Maine’s Prison Crisis Continues Unabated

Little State, Big Problems: Maine?s Prison Crisis Continues Unabated

by Lance Tapley

Only big prison systems mistreat prisoners, right?

Only prison systems where racism, right-wing tough-on-crime attitudes, or prison-industrial-complex power have full reign, like in California or Texas, are failures, right?

Only prisons where gang-oriented, city-bred prisoners are divided ...

Old Media Access Consent Decrees Violated in Maine

The Maine Department of Corrections has been violating at least two of three 35-year-old federal court orders that grant prisoners access to the press, allow them to write to newspapers, and prohibit prison officials from arbitrarily transferring prisoners out of state if they exercise their rights. The state admits two ...

Massachusetts District Court: FBI Ordered to Pay $101.7 Million for Malicious Prosecution

A federal judge in Massachusetts has awarded $101.7 million to four innocent men who were framed by the FBI for a murder they did not commit.

In a scathing 228-page decision entered on July 26, 2007, Judge Nancy Gertner blasted the FBI for its complicity in framing the men ...

From the Editor

In the course of attending events in different parts of the country I am often asked "which prison system is the worst?" That's a tough question to answer because it depends on how you define "bad". Medical neglect in prisons and jails is pretty awful around the country, regardless ...

Clarification:

The July 2007 issue of Prison Legal News reported Sarsfield v. City of Marlborough, $13,655,940 Award for False Massachusetts Rape Conviction and Gregory v. City of Louisville, Louisville, Kentucky Settles with Wrongly Imprisoned Man for $3.9 Million. Barry Scheck was lead counsel for both plaintiffs, but while ...

Maryland Prison Audit Reveals Potential Fraud “Undetectable”

Maryland Prison Audit Reveals Potential Fraud "Undetectable"

by Michael Rigby

Maryland employees responsible for millions of dollars worth of equipment and funds perform their duties without adequate oversight or fiduciary controls, an audit of the Jessup Region of the Maryland Department of Safety and Correctional Services (DPSCS) has concluded.

The ...

Florida Supreme Court Enacts Rules Regulating “Super Sealing” of Court Records

Florida Supreme Court Enacts Rules Regulating "Super Sealing" of Court Records

by David M. Reutter

On April 5, 2007, the Florida Supreme Court implemented new rules that "provide a procedural vehicle for making circuit and county court records in non-criminal cases confidential." The rules were made to address "highly serious ...

Final Report on Ohio Prisoner Reentry Study

by G. A. Bowers

The Urban Institute?s Justice Policy Center released in April 2007 One Year Out, the final report of its Returning Home study of nearly 300 former prisoners living in Cleveland, Ohio, one year after their release from prison.

Among the study?s key findings were that ...

Minnesota Sanction for Sex Offender Treatment Refusal Violates Fifth Amendment

The Minnesota Court of Appeals held that disciplining a prisoner and extending his prison sentence for refusal to participate in sex offender treatment was a violation of the Fifth Amendment. The appellate court concluded that State ex rel. Morrow v. LaFleur, 590 N.W. 2d 787, 792 (Minn. 1999) was ...

“War on Terror” Whistleblowers, Dissenters are Fired, Prosecuted; Plaintiff’s Lawyers Help Turn Them In

War on Terror Whistleblowers, Dissenters are Fired, Prosecuted; Plaintiff's Lawyers Help Turn Them In

by Alex Friedmann

In January 2005, Lt. Commander Matthew M. Diaz was a Navy staff judge advocate serving a six-month tour of duty at the legal office in the U.S. military prison at Guantanamo ...

Arkansas Prisoner Denied Kosher Diet Awarded $1,500

On August 25, 2006, the Director of the Arkansas Department of Corrections was ordered to pay state prisoner Michael Fegans $1,500 for violating his constitutional rights to a kosher diet.

Fegans is a devout member of the Assemblies of Yahweh, a religious group that adheres to certain grooming standards ...

Psych Evaluations Questioned Following D.C. Jail Suicides

by Matthew T. Clarke

The methods used for psychological evaluation and housing of prisoners at the Washington, D.C. Jail are being questioned after two prisoners committed suicide within a three-month period.

Alicia Edwards, 32, had a history of mental illness when she hung herself in her D.C. Jail ...

NY Prisoner Who Crushed Thumb Working at Ski Resort Awarded $40,000

Finding a prison official failed to properly train prisoners to use a log splitter, New York?s Binghampton Court of Claims held the state of New York was 75% liable for injuries sustained from use of that splitter.
While incarcerated at the Sullivan Annex minimum-security prison, on January 31, 2003 ...

Illinois Supreme Court Holds Prisoner Medical Co-Payment Fee Can’t Be Deducted From Future Funds

Illinois Supreme Court Holds Prisoner Medical Co-Payment Fee Can't Be Deducted From Future Funds

by John E. Dannenberg

The Illinois Supreme Court held that the Illinois Department of Corrections' (IDOC) regulation levying a $2 medical/dental co-payment fee against an "indigent" prisoner's trust account and placing a hold ...

California’s Solution To Prison Overcrowding: $7.4 Billion To Build 53,000 New Beds

California's Solution To Prison Overcrowding: $7.4 Billion To Build 53,000 New Beds

by Marvin Mentor

Faced with three federal judges threatening to place a population cap on California's overcrowded prison system, the state Legislature and Governor Schwarzenegger "cured" the problem in May 2007 by authorizing $7 ...

$4 Million Settlement In Rape and Beating Death of Mentally Ill New Jersey Prisoner

by Michael Rigby

The daughters of a mentally ill man who was raped and beaten to death by another prisoner in New Jersey's Camden County Correctional Facility (CCCF) will receive a combined $4 million from the state and the jail's mental health care provider, Steininger Behavioral Care Services ...

$14 Million Verdict Against Louisiana DA’s Office for Wrongful Death Sentence

$14 Million Verdict Against Louisiana DA's Office for Wrongful Death Sentence

The New Orleans Parish, Louisiana, District Attorney's Office should pay $14 million to a man who was wrongly convicted of murder and sent to the state's death row 22 years ago, a federal court jury concluded ...

Fortress Of Solitude: The Bureau Of Prisons Is As Good At Keeping Prisoners In As It Is At Keeping Reporters Out

A hundred miles southwest of Denver, the U.S. Penitentiary Administrative Maximum houses a killer lineup of mobsters (Salvatore "Sammy the Bull" Gravano), gang leaders (Barry "The Baron" Mills), assassins (Colombian hit man Dandenis "La Quica" Muñoz Mosquera) and guerillas (John "American Taliban" Walker Lindh). But not to worry ? despite ...

South Carolina Prisoner Assaulted By Guards Awarded $600,000

In May 2007 a South Carolina jury awarded $600,000 to a state prisoner who alleged that guards beat him and sprayed him with mace in an unprovoked attack.

Alonzo Brinkley, 32, claimed in his lawsuit, filed in the Marlboro County Court of Common Pleas, that while imprisoned at the ...

Wyoming and CMS Settle Suit Over Diabetic Prisoner’s Loss of Foot

Wyoming and CMS Settle Suit Over Diabetic Prisoner's Loss of Foot

by Matthew T. Clarke

In June 2006, CMS, the State of Wyoming and a prison doctor settled a lawsuit involving a prisoner who had to have his lower right leg amputated following dismally inadequate medical care.

Salvatore Lucido ...

San Mateo County, California, Settles Strip-Search Suit for $1.9 Million

On February 5, 2007, San Mateo County, California, agreed to pay $1.9 million to settle a class action lawsuit alleging that an estimated 1,200 women were illegally strip-searched at the county jail between February 3, 2002, and December 2, 2003.

Sharon Gallagher, lead plaintiff in the lawsuit, claimed ...

Tenth Circuit Upholds BOP Guard’s Abuse Convictions

Tenth Circuit Upholds BOP Guard's Abuse Convictions

The Tenth Circuit Court of Appeals affirmed the convictions and sentences of three former prison guards for beating prisoners at the United States Penitentiary in Florence, Colorado, (USP-Florence).

As we've previously reported, in 1997, the Government began a three-year investigation into ...

Texas Parole Board Revamps Urinalysis Procedures

The Texas Parole Board is replacing its old, error-prone drug testing procedure with a new method it says will reduce mistakes and provide for independent confirmation of positive test results?something that has been unavailable in the past.

Some aspects of the testing procedure will remain familiar. As always, parolees ...

GAO Audit: Alien Detention Facilities Suffer Continuing Deficiencies

by John E. Dannenberg

An often overlooked segment of the nation's prison population, alien detainees, was the subject of a Government Accountability Office (GAO) audit between May 2006 and May 2007. While the largest problem noted was limited access to free telephones to call attorneys and consulates, numerous other ...

Los Angeles County Pays $475,000 In Jail Healthcare Wrongful Death

Los Angeles (LA) County settled out a wrongful death claim brought by the widow of a 71-year old prisoner who died allegedly for want of proper medical care in the county jail.

On top of the $475,000 settlement payment, the county ran up its own legal expenses of $330 ...

Texas Pays $250,000 for Lingering Death of Teen Prisoner

In November 2006 the State of Texas paid $250,000 to settle with the family of Charles Billops, Jr., a teenager who died from an undiagnosed brain abscess caused by a sinus infection while imprisoned in 2003. The settlement was paid on behalf of the University of Texas Medical Branch ...

U.S. Supreme Court: Colorado Prisoner Alleging Injury From Suspension Of Medical Treatment Stated Adequate Claim To Preclude Dismissal

by John E. Dannenberg

In a per curiam ruling, the U.S. Supreme Court held that a Colorado state prisoner seeking reinstatement of his Hepatitis-C medical treatment had stated an adequate claim per Federal Rules of Civil Procedure 8(a)(2) to preclude having his case summarily dismissed below.

Colorado ...

Massachusetts Guard Accused of Throwing Feces Entitled to Workman’s Compensation

Massachusetts Guard Accused of Throwing Feces Entitled to Workman's Compensation

A former Massachusetts prison guard accused of putting feces in a prisoner's cell is entitled to workman's compensation for emotional distress, the state Department of Industrial Accidents Reviewing Board held on June 20, 2007.

In March 2002 ...

New Jersey Supreme Court Orders DOC to Codify Prisoner Healthcare Responsibilities

by John E. Dannenberg

The Supreme Court of New Jersey, incensed with the inhumane treatment of a state prisoner who was systematically denied Hepatitis-C treatment for four years, ordered the New Jersey Department of Corrections (NJDOC) to enact regulations codifying its responsibility for prisoners? healthcare.
The ruling also mandated that ...

$1.6 Million Settlements by PHS and Hillsborough County in Death of Baby Born in Florida Jail

by David M. Reutter

Inadequate medical care by Prison Health Services (PHS) has resulted in yet another death and $1.6 million in settlements for the mother of a baby boy who was born over a cell toilet at Florida's Hillsborough County Jail (HCJ).

Incarcerated for prostitution, Kimberly Grey ...

Confidential Settlement for Alabama Prisoners Killed in Road Work Crew

A confidential settlement has been reached in the death of one prisoner and injury to another. The prisoners, John Nicholas Shoultz and David McKee, were prisoners of the Alabama Department of Corrections.

They were picking up trash in the median of Interstate 65 near County Road 20 in Autousa County ...

Eighth Circuit Reverses Summary Judgment Dismissal of Excessive Force Claims

The Eighth Circuit Court of Appeals reversed a lower court?s grant of summary judgment to jail officials on a detainee?s excessive force claim.

Patti Johnson and her sisters Laura Johnson, Stacey Hall and Karen Mitchell were all confined in the Jasper County Detention Center in Missouri, on June ...

$100 Million In Restitution Fines Collected From California Prisoners Since 1992

In an April 26, 2007 speech at the National Crime Victims? Rights Week in southern California, Governor Schwarzenegger announced that over $100 million had been collected from prisoners since 1992 in the form of court-ordered restitution fines. ?If you commit the crime, you pay the debt. ... In California, it is ...

Probation Condition Restricting Pets at Residence Held Overbroad

The California Court of Appeal, District 4, held that a probation condition requiring informing a probation officer of any pets in the probationer?s residence was invalid because it was overbroad.

Reyes Quintero pled guilty to methamphetamine possession and was sentenced to probation. One of the terms of probation was ...

New Law Bars Hawaii Prison Officials from Canceling Visits

A new state law prohibits Hawaii prison officials from canceling prescheduled visits because of absenteeism or guard shortages, if the visitors have traveled from another island or the mainland.

Retired prison guard Kam Tanaka, now a State Representative, sponsored the bill (HB2595), which became law July 11, 2007, without Governor ...

Absence of Parole Revocation Administrative Appeal Process Entitles Prisoner to Trial Court Determination of Custody Credits

by John E. Dannenberg

The California Court of Appeal, Sixth District, held that when a parolee both violated parole and committed a new offense, and disputed his parole revocation hearing findings but had no administrative appeals process available to challenge them, he was entitled to have the sentencing court immediately ...

BOP May Not Foreclose Transfer to Community Corrections Center Based on Length of Remaining Sentence

The Second Circuit U.S. Court of Appeals has held that federal Bureau of Prisons (BOP) prisoners seeking transfers to community correctional centers (CCC) before reaching a point when they have the greater of six months or ten percent of their terms remaining to serve, cannot be denied such transfers ...

“Liberal” Pleading Construction Reveals Negligent Guard Theory Claim

"Liberal" Pleading Construction Reveals Negligent Guard Theory Claim

The Second Circuit Court of Appeals has reversed a New York federal district court?s dismissal of claims under the Federal Tort Claims Act (FTCA), finding that the court failed to "liberally" construe the plaintiff prisoner's submissions to be "interpreted so ...

Findings of Fact by Indiana Disciplinary Panel Not Entitled toPresumption of Correctness for Federal Habeas Purposes

by John E. Dannenberg

Seeking to clarify an ?established proposition frequently ... overlooked in litigation arising from Indiana?s prison system,? the Seventh Circuit U.S. Court of Appeals held that the lower burden of proof that attaches to prison disciplinary panel findings of fact is insufficient to ?entitle prison defendants ...

Texas Allows Actual Innocence Claim in Non-Capital Habeas Actions

The Texas Court of Criminal Appeals has held that a habeas corpus applicant may raise a free-standing claim of actual innocence in a state habeas corpus proceeding.

Randolph Roy Sparks, a Texas state prisoner, filed a post-conviction petition for a writ of habeas corpus under Article 11.07, Texas Code ...

Unsupported Penile Plethysmograph Testing as Condition of Release Rises to Due Process Violation, Creates Liberty Interest

The Ninth Circuit U.S. Court of Appeals held that arbitrarily imposing a penile plethysmograph [electromechanical gauge of male sexual stimulation] testing requirement as a condition of supervised release for a sex offender violates due process liberty interests. To enforce such a condition, a court must first make an evidentiary ...

Mere Possibility of Parole Insufficient to Prevent Texas Prisoners’ Parental Rights Termination

The Texas Supreme Court held that the mere possibility of parole within the two-year imprisonment requirement of § 161.001(1)(Q), Texas Family Code, was insufficient to prevent termination of a prisoner's parental rights.

William Keith M. is a Texas state prisoner and the biological father of H ...

Many Chinese Prisoners Retain Right to Vote

The Constitution of China guarantees every citizen the right to vote unless that right has been removed by law. In China?s 2,700-man Qingpu Prison, 723 prisoners retained the right to vote in the December 2006, election for the people?s congress of Qinpu District in Shanghai.

To facilitate ...

Ohio Juvenile Wards Entitled to Attorneys to Pursue 1983 Actions

by John E. Dannenberg

In an important denial-of-access-to-the-courts ruling, a U.S. District Court (S.D. Ohio) held that a juvenile ward who was denied access to the courts after suffering injury from an Ohio Department of Youth Services (ODYS) guard was entitled to a state-provided attorney to pursue a ...

On Appeal Texas Prisoner Acquitted of Damaging Jail Furnishing

A Texas court of appeals acquitted a Texas jail prisoner of criminal mischief charges for allegedly damaging jail furnishings because the state failed to provide any evidence of the value of the furnishings.

Jaccob Aaron Merwin, a prisoner in the Collin County Jail, had an altercation with another prisoner and ...

Fifth Circuit Reverses Dismissal of Mississippi Retaliation For Letters to a Newspaper Claim

In an unpublished opinion the Fifth Circuit Court of Appeals reversed a lower court's dismissal, for failure to state a claim, of a prisoner's retaliation suit against one prison official, but upheld the dismissal of claims against three other officials.

On December 15, 2003, Mississippi prisoner Clinton Cressionnie ...

News in Brief:

Arizona: On September 17, 2007, Kollin Folsom, 24, and Roy Townsend, 37, Washington state prisoners imprisoned at the Corrections Corporation of America run Florence Correctional Center escaped from the prison by overpowering a guard, tying him up and using ladders to climb over fences surrounding the prison. Folsom was captured ...

Notice of Appeal Deemed Filed When Presented to Prison Officials; Burden on State to Refute

The Eleventh Circuit Court of Appeals has held that a prisoner's notice of appeal is considered filed on the date it is given to prison officials, and the state has the burden of proof to demonstrate otherwise.

Alabama prisoner Robert S. Allen filed a federal habeas corpus petition challenging ...