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Prisoner Education Guide

Prison Legal News: October, 2007

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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 by race are ugly, right?

Only big prison systems arrogantly try to hide what they're doing from the public, right?

Wrong. Wrong. Wrong. Wrong.

Maine is the little (1.3-million people), lily-white (the least diverse state in the nation), liberal (it went overwhelmingly for Kerry in 2004) "Vacationland" squeezed up into Canada at the top of the Northeast. It has one of the lowest crime rates and the rock-bottom-lowest incarceration rate in the country.

But Maine's Department of Corrections has presided over extensive prisoner abuse and neglect that it has worked hard to hide.

I began reporting about Maine's prisons in November 2005, when Torture in Maine's Prison, an exposé of the brutality in the Maine State Prison's Special Management ("Supermax") Unit, appeared in the Portland Phoenix, an alternative newsweekly. In two subsequent articles, I detailed the fallout from the torture article, the state's ...

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 of the orders have never been superseded. The court orders were discovered by the Portland Phoenix this spring.

In the early-1970s' activist climate, a Maine legal-aid group, Pine Tree Legal Assistance, won three prisoner-rights lawsuits against state prison officials. Those cases resulted in these rulings:

1) Prison officials must allow reporters to interview prisoners in all the state's prisons, with few restrictions;

2) Officials must allow prisoners at the Maine State Prison to write letters to reporters freely complaining about their treatment; and

3) Maine Corrections should not have moved a prisoner from one prison to another without a hearing or other due-process procedures. (In the case at issue, an activist prisoner had been abruptly shipped out of state.)

The orders are called consent decrees because each was imposed – decreed – by a judge after an agreement by the parties – consent – to settle a lawsuit.

To ...

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 of the state and I can't think of a single one where I would want to be sick if I were a prisoner. Levels of brutality and violence certainly vary from state to state with low levels in some (Vermont) and those that run by force, such as California.

Some questioners have asked if I think that size is an issue and that large prison systems are inherently worse, or more difficult to run in a humane manner, than small ones. Others have asked if race and racism are relevant. I don't know that I have the answer to the question (and besides, if you're the prisoner dying of medical neglect, being denied mental health treatment, being brutalized, etc. it matters little if someone, somewhere is suffering more). But I point to Maine which suggests that small size, racial composition, etc., have less to do with prison ...

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 he is a co-director of the Innocence Project, he represented both of these clients in section 1983 suits in his capacity as co-founding partner of the civil rights law firm, Cochran Neufeld & Scheck.
The IP is a nonprofit and does not represent section 1983 plaintiffs in wrongful conviction lawsuits for damages. CNS does, taking on interested clients after they have been exonerated and released. Debra Cornwall, a lawyer at CNS, also represented both Eric Sarsfield and William Gregory along with Barry Scheck, and partner Nick Brustin also worked on the Gregory case.

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 report, released by the state Office of Legislative Audits in February 2007 and covering the period November 5, 2003 through August 20, 2006, determined that poor supervision and the lack of standard accounting practices makes it impossible to detect fraud, theft, or the misappropriation of funds. The audit noted that three of the five findings currently expressed were addressed in an earlier audit of the region dated April 8, 2004.

At the time of the audit, the Jessup Region of the DPSCS comprised three prisons: the Jessup Correctional Institution (formerly the Maryland House of Correction-Annex), the Maryland Correctional Institution-Jessup, and the brutal dungeon known as the Maryland House of Correction, which closed permanently in early 2007. The Jessup Region consisted of 3,173 prisoners, 1,240 paid positions (including 970 guards) and had a budget of $107 million in fiscal year (FY) 2006.

Auditors noted in their first finding that ...

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 concerns" identified by mainstream media about hidden cases and secret dockets, sometimes called "super sealing."

The Court stated that the Florida Constitution mandates public access to court records, subject only to a narrow category of records where public access is automatically restricted by operation of state or federal law or court rule, such as in child dependency cases. "Otherwise, our rules strongly disfavor court records that are hidden from public scrutiny," the Court said. "The rules provide only a limited veil that is restricted to a second category of court records where a set of carefully defined interest are involved."

Instead, some courts were super sealing the divorce cases of local celebrities or the wealthy. To address this practice that was "clearly offensive to the spirit of laws and rules that ultimately rest on Florida's well-established public policy of government in the sunshine," the Court implemented strict procedures before ...

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, one year out, 79 percent of the released prisoners were living with family. This was not always an ideal situation as 49 percent said drug dealing was a major problem in their neighborhood and 23 percent lived with drug users or serious alcohol drinkers. Employment was problematic as 65 percent reported difficulties in finding a job and 56 percent reported difficulty earning enough to support themselves. Family and friends were vitally important to the released prisoners. The men identified family support as the most important factor in staying out of prison. On the other hand, 21 percent of those reincarcerated identified their failure to avoid certain people or situations as the reason for their reincarceration. Over half of the men reported chronic medical conditions such as hypertension, asthma, arthritis, or high cholesterol, yet only a third were receiving treatment. Additionally, 23 percent were depressed and 20 percent suffered from symptoms ...

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 effectively overruled by McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017 (2002). The decision was upheld on appeal by the Minnesota Supreme Court.

Frank Johnson was sentenced in February 2003 to 58 months in prison for burglary and a sex-related offense. The Prison Program Review Team ?Recommended that he complete a chemical dependency treatment program, TRIAD, and a sex-offender treatment program (SOTP)? before his release.

However, Johnson ?resisted entry into TRIAD because he did not feel he had a drug problem or needed inpatient treatment and because he was appealing his conviction.? The refusal was deemed a disciplinary violation and he was sanctioned with an additional 90 days in prison.
Similarly, Johnson ?was not accepted for admission? to SOTP ?because he expressed a lack of interest, indicating he was appealing his conviction and did not want to admit the offense.? That refusal resulted in a sanction to ...

“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 Bay, Cuba, which houses detained "enemy combatants."

The previous year, the Center for Constitutional Rights (CCR) had successfully filed suit on behalf of Guantanamo detainees, resulting in a 2004 Supreme Court decision which held that such prisoners have the right to challenge their incarceration in U.S. courts. See: Rasul v. Bush, 124 S. Ct. 2686 (2004). The military, however, had since refused to identify the detainees, making it impossible for the CCR or other agencies to file individual challenges under the Rasul ruling.

Disturbed with the detainees' treatment and the government's obstruction of their legal rights, which he believed was unconstitutional, Diaz compiled a list of 550 names of Guantanamo prisoners and mailed it, anonymously, to CCR attorney Barbara Olshansky.

Olshansky had been trying for years to obtain the names of detainees held at Guantanamo, but suspecting the list of names might be classified, she promptly notified federal ...

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 cell on March 31, 2007. Jail officials initially released a false statement claiming she was housed in the facility?s mental health unit and was under observation every 15 minutes. This led The Washington Post and The Examiner to publish articles repeating the false information.

However, D.C. Department of Corrections (DOC) spokesperson Beverly Young later admitted that Edwards was neither in the mental health unit nor under increased observation, but rather was locked in a single-bunk intake unit cell isolated from other prisoners and was suffering from bipolar disorder when she killed herself.

The initial incorrect information was an apparent attempt to conceal the fact that, despite having a long history of mental illness and having been flagged for mental health problems during her intake screening, Edwards? required mental health evaluation had not been completed following her arrest two days prior to her death.

According to Vincent Keane, president ...

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 on all future deposits prior to the prisoner's release was inconsistent with the enabling Illinois statute that only permitted charges against a current account balance.

Willie Hadley had been charged a $2 co-payment fee 22 times in two years for requested medical/dental services in state prison. He complained that he was "indigent" and, by statute, therefore exempt from these charges.

Hadley apparently did not have such funds in his prison trust account, but IDOC placed a negative balance, or hold, on any future funds that he might receive prior to his release from prison. He was never denied needed services, but complained that the IDOC regulation implementing the permanent fee debit was irreconcilable with the enabling Illinois statute. While the statute provided for an indigency "exemption," the IDOC regulation added the caveat that "indigency" was not limited to one's current balance, but encompassed the duration of one ...

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 billion in non-voter approved bonds to add 53,000 beds to California's lockups. The "solution" resembles more the mythological two-headed monster Hydra, wherein it proposes to abate overcrowding by expanding prisons and jails 31%, while tying this expansion to the success of a first phase aimed at reducing population through "rehabilitation." The real test of this plan will come when the federal judges decide if this salves their immediate concerns as to inadequate health care, inadequate mental health care and inadequate facilities to comply with the Americans with Disabilities Act in California's prisons.

The new plan adds 53,000 new beds -- 40,000 in state prisons and 13,000 in county jails. In Phase I, 12,000 beds will be built on the grounds of existing prisons. Six thousand more will be in new prison hospitals under the direction of federal healthcare Receiver Robert Sillen. Finally, 6 ...

$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 some embarrassing security breaches and two prisoner homicides in the past two years, ADX has never had anything close to a breakout. It?s probably the most escape-proof prison in the world.

For almost six years, it's also been media-proof. High-security prisoners are locked away in the Florence supermax, out of sight and mind and reporters can't get in to see them, no matter how hard they try.

According to documents obtained by Westword, ADX officials have denied every single media request for a face-to-face interview with supermax prisoners from January 2002 through May 2007. It doesn't matter if the request comes from a major news organization or a humble local TV station; it doesn't matter if the prisoner is a high-profile resident or an obscure career criminal. Contrary to bureau policy, prison brass have turned down every journalist, citing boilerplate "security concerns" if no handier ...

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 allegations of widespread prisoner abuse and falsification of records to cover up the abuse at USP-Florence.

Ten Bureau of Prisons (BOP) guards were charged criminally in connection with the investigation. Three pled guilty and agreed to testify against the others. All seven were named in a ten count superseding indictment. Count one charged all seven "in a vast conspiracy of abuse and cover-up," in violation of 18 U.S.C. § 241. "The remaining nine counts charged certain defendants with excessive force against individually named" prisoners in violation of the Eighth Amendment and 18 U.S.C. § 242.

"At trial, the Government sought to establish a vast conspiracy to abuse inmates. Throughout trial, the Government maintained a 'green light' theory in which it alleged the Captain Terry Hines had given the defendants the 'green light to take care of business' with certain Security Housing Unity (SHU) prisoners 'who were aggressive toward ...

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 being tested for illicit drug use will urinate in a plastic specimen cup under the watchful eyes of a parole officer. What will change, however, is the technology. With the new testing procedure, officially announced on June 22, 2007, parolees will be handed a special, chemically coated specimen cup designed to change color in order to quickly indicate a result.

?We won?t have to have officers doing the tests like they do now,? said state parole director Bryan Collier. ?The offenders will hold the cup, put on the lid, shake it and can see the result right there.?

Under the current procedure, which has drawn criticism for producing false-positives and possibly sending sober parolees back to prison, parole officers collect the samples, which are then tested by other state employees using special machines?a process that can take days or even weeks to get a result. And in the ...

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 deficiencies were found pervasive.

The number of illegal aliens in the United States was estimated in 2006 at 12 million. The total number per year spending some time in alien detention grew to 286,000 by 2006, with available bed space at around 27,500. As of December 31, 2006, 27,607 aliens were in detention.
Immigrations and Customs Enforcement (ICE) budgeted $953 million for detention services for fiscal year 2007. National detention standards apply to the 330 adult and three family facilities used to house detainees. The instant audit reviewed 23 facilities to see how well standards were adhered to, whether ICE's internal compliance reviews were effective and what complaints surfaced in the outside world regarding detainees. Of 35 national detention standards, eight were selected for audit. These included telephone access, medical care, holding room procedures, use of force, food service, recreation, access to legal materials and grievance ...

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 Department of Corrections (CDOC) prisoner William Erickson had qualified under CDOC rules to receive a one-year course of weekly Hepatitis-C self-injection treatments at the Limon Correctional Facility.
His prerequisites included taking classes and being drug-free. Shortly after commencing his treatments, guards noticed that one syringe of those supplied Erickson (and others) was missing. It turned up in a common trash can, apparently modified for illegal drug injection use. Erickson was infracted and, based upon CDOC regulations, had his Hepatitis-C treatment terminated for what would be at least 18 months: 12 months of maintaining drug-free followed by six months to take the classes over.
Erickson denied using drugs, and grieved his complaint to CDOC that he was suffering deliberate indifference to his serious medical needs, ?endangering his life.? He alleged that any delay ?can cause irreversible damage to [his] liver and possible death,? noting that other prisoners there had died of ...

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, high-profile prisoner John Geoghan, a former priest convicted of sexually abusing children, discovered feces in his cell in the protective custody unit of the Massachusetts Correctional Institution in Concord. Geoghan accused guard Cosmo Bisazza of placing it there. An internal investigation concluded that Geoghan's allegations were unsubstantiated.

Geoghan had good reason to suspect Bisazza. While imprisoned at MCI-Concord, Geoghan received 15 disciplinary cases -- more than any other prisoner confined at the facility during that time. Eight of the cases had been written by Bisazza, which represented 40 percent of all the disciplinary cases that Bisazza had issued.

In addition, most of the cases Bisazza wrote against Geoghan were bogus, prompting disciplinary hearing officer Sergeant Sheridan to characterize them as being minor in nature, bad reports, or just "flat crap."

In April 2003, as a result of the repeated disciplinary actions, Geoghan was transferred to a maximum security prison in ...

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 NJDOC promptly notify prisoners if they have a serious medical problem requiring treatment, provide them with access to their medical records, and formulate procedures to correct errors in prisoners? medical files.

A Trenton, New Jersey state prisoner identified in court pleadings as J.D.A. was told he had Hepatitis-C when he was in a Pennsylvania prison.
Upon his transfer to NJDOC, the state would neither believe him when he said he had tested positive nor administer new tests. When he finally obtained another Hepatitis-C test in 2001, the results (positive) were errantly entered into his medical records by NJDOC?s medical contractor, St. Louis-based Correctional Medical Services (CMS), as ?negative.? When he tried to see his lab results, J.D.A. was denied by NJDOC; he then turned to the courts. It took four years before he was even seen, let alone treated, for his life-threatening medical condition.

In ...

$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, Alabama, when Donald W. Biester, 70, left the road and struck Shoultz and McKee. Biester drove several more miles down the road before he was apprehended by police. The day before, Biester had been stopped for erratic driving.

McKee was killed. Shoultz suffered injuries to his right arm, right elbow, right shoulder, and back. He may require back surgery in the future. The January 4, 2005, incident resulted in a federal lawsuit, alleging motor vehicle negligence, wantonness and/or recklessness. On February 14, 2007, the confidential settlement was reached.
See: Shoultz v. Biester, USDC, M.D.Ala., Case No. 05-592.

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 13, 2003. Upon receiving complaints that the sisters were bullying other detainees, guards placed them on lockdown.

Guard Matt Terry announced the lockdown order. The sisters were upset and initially didn?t comply, but then re-entered their cell. Once in the cell, Laura banged a shampoo bottle on the desk and threw toilet paper at the wall.

Several guards entered the cell and moved toward Laura, who was at the back of the cell. Patti ?stepped in front of Sergeant Blaukat and asked him not to touch her sister, assuring him that the cellmates would be able to calm her down. Sergeant Blaukat told Johnson to move but she did not.? Terry tackled Patti, took her to the floor and attempted to handcuff her. ?He was able to cuff one of her hands and struggled to get the other one?. Johnson tried to produce her other hand for cuffing but ...

$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 the victims? constitutional right to recover financial damages caused by a criminal, ... [including] medical bills and loss of wages,? he said.

One paralyzed shooting victim recounted how the state victims? fund had paid him $69,000 for medical care as well as for ramps and widened doors in his home to accommodate the wheelchair he needed.

Although incarcerated prisoners have 55% deducted from all funds they earn or are sent to them in prison [except family visit expenses up to $70], parolees are not dunned. [But a California law prohibits parolees from leaving the state if they have a restitution balance owing.]
However, Schwarzenegger announced that beginning in May 2007, California?s parole agents and the Franchise Tax Board will hound parolees who haven?t paid their fines. Thus, tax refunds will first go to the victims? fund, not the tax-paying parolee.

While these actions may well collect restitution balances ...

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 that Quintero ?keep the probation officer informed of the place of residence, cohabitants and pets, and give notice ... twenty-four (24) hours prior to any changes.? Trial counsel objected to the condition as to pets, but the court overruled.

On appeal on the pet notification restriction, the court noted that Quintero?s crime did not involve pets and that there was thus no nexus between the restriction and Quintero?s criminal conviction. The state argued that the probation officer was entitled to know what dangerous pets Quintero might be harboring before attempting a probation search.

The appellate court was unimpressed. The court relied upon People v. Lent, 15 Ca1.3d 481, 486 (1975) for the legal standard for invalid probation conditions: ?A condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is ...

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 Linda Lingle?s signature.

?As a former prison guard, I saw firsthand how important family visitation is for both the inmates and the family members,? Tanaka said in a statement. ?Families were being denied visitation, sometimes after traveling to another island to visit an inmate, causing a financial and emotional burden.

According to Tanaka, the rate of cancelled visits at the Wailuku jail was as high as 30 percent.

The new law applies to ?special visits,? which include visitors who travel from another island or from the mainland for weekday visits during regular business hours from 7:30 a.m. to 4 p.m., said acting Maui Community Correctional Center Warden Alan Nouchi. He said weekend visits will still be subject to staff availability.

?The importance of this bill is that it protects the rights of families and inmates to maintain contact, which I believe helps in the rehabilitation process ...

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 hear his revocation dispute as part of the determination of custody credits in his sentencing hearing.

State parolee Morris Foster was arrested for and convicted of drug charges, and sentenced to three years. He also was charged with violating parole, and after a Morrissey hearing, was found guilty. However, he disputed the fact-finding during the hearing, where he alleged he could not defend himself due to heavy Vicodin medication he was taking for pain.

At issue in the trial court was how to calculate his pre-sentence county jail credits. If the parole violation findings were defective, he would gain credits. The trial judge, however, ruled that any challenge to the Morrissey hearing findings must first be taken up in an administrative appeal; hence, he could not grant Foster the increased credits.

The Court of Appeal disagreed. First, it found that the California parole authority had repealed its appeals process three ...

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 solely because they have not yet reached that temporal milestone.

Elliot Levine, serving 15 months for bank fraud, sought habeas corpus relief from the Sentencing Act, 18 U.S.C. §§ 3621(b) and 3624(c), because the BOP had interpreted the Act so as to constrain the timing of his transfer to a CCC. Levine filed two writ petitions, one challenging the former BOP regulation (“2002 policy”) and the other taking on the BOP’s later 2005 variant. Whereas the 2002 policy appeared ambiguous as to when a prisoner might be eligible for preferential placement in a CCC, the revised 2005 policy removed all discretion from the remaining-time provision.

Levine’s complaint was that while the statute (§ 3621(b)) provided five factors guiding such discretionary placement, the BOP’s conflicting remaining-time provision (28 C.F.R. § 570.21(a)) unlawfully barred all discretionary consideration.

First, the court ruled that the ...

“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 as to raise the strongest arguments that they suggest."

While held at the Federal Correctional Institution at Ray Brook, New York, prisoner Ben Gary Triestman was assigned to share a cell with Gerald Harris. Triestman was a first-time, non-violent prisoner. He alleged that Harris "was known to the Bureau of Prisons (BOP) to be a violent criminal and a sexual predator." On January 26, 1995, at approximately 4:00 a.m., "after a night of escalating cajoling, advances, and threats to convince [Triestman] to participate in homosexual intercourse and sodomy," Harris assaulted Triestman. During the assault Harris dislocated Triestman's shoulder and burned his hand with lit cigarettes.

The BOP has a program statement that provides "signaling devices will be available for inmate use in all locked housing units that do not have continuous staff coverage." Further, "inmates will not be left unattended in locked areas unless a signaling device ...

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 to the presumption of correctness that 28 U.S.C. § 2254(e) affords to judicial findings.? Stated another way, an Indiana prisoner?s (personal knowledge) affidavit in support of his federal habeas corpus petition challenging a prison disciplinary panel?s decision cannot be trumped by the panel?s findings of fact developed in the disciplinary hearing. Rather, the federal district court must hold an evidentiary hearing to sort out where the truth lies.

Wabash Valley Correctional Facility state prisoner Shawn Johnson was charged with preventing his cell from being secured at lockup. The disciplinary report alleged that although Johnson had heard the lockup warning, he blocked the door until his cellmate could return. The disciplinary hearing panel relied upon this report, and assessed Johnson 30 days of good-time credits. Because Indiana does not afford state judicial review of prisoner disciplinary convictions, Johnson?s sole remedy was to seek habeas corpus ...

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 of Criminal Procedure, alleging he was actually innocent of his felony DWI conviction. Sparks had pleaded guilty, judicially confessed, and agreed to the stipulation of evidence. The indictment alleged that the DWI was a felony because Sparks had prior DWI convictions in 1979 and 1997; it further alleged that Sparks had a prior conviction for aggravated assault, further enhancing the latest DWI to a second-degree felony. Accordingly, Sparks was sentenced to eight years in prison. He did not file a direct appeal.

?At the time of Sparks? offense, on May 5, 2003, former Section 49.09(e) of the Penal Code limited the use of many prior convictions for enhancement purposes after ten years had elapsed,? the court noted. Thus, the 1979 DWI conviction could only be used to enhance the 2003 DWI conviction if Sparks had been convicted within ten years following the 1979 conviction. Absent the 1979 DWI ...

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 determination that the government has met its burden to accomplish at least one factor for supervised release set forth in 18 U.S.C. § 3583(d)(1), which involves no greater deprivation of liberty than is reasonably necessary.

Matthew H. Weber was convicted of one count of child pornography (18 U.S.C. § 2252A(a)(5)(B)) for having hundreds of such illicit images on his computer hard drive, and was sentenced to 27 months in prison plus 3 years supervised release. One of his twenty release conditions was to submit to risk assessment testing, including penile plethysmograph. The latter involves placing an electromechanical clamp on the subject?s penis which is monitored while subjecting him to sexual imagery stimulation.
Weber?s objection to this condition in U.S. District Court was overruled, and he appealed.

The Ninth Circuit first determined that his appeal was immediately ripe even though it ...

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.R.M. He divorced Stacey M., the child's biological mother, in 2001 and has been incarcerated since January 2002. In 2004, Stacey married James W. They filed a petition to terminate William?s parental rights in state district court. Texas Family Code § 161.001(1)(Q) provides for the termination of parental rights if the parent is convicted and sentenced to serve at least two years from the date the petition is filed and is unable to provide for his or her child during that time.

In accordance with a jury's recommendation, the judge entered an order terminating William?s parental rights. William appealed. The court of appeals reversed the order, stating that the evidence was factually insufficient to prove a "firm belief or conviction" that William would still be imprisoned or confined two years after the petition was filed. Stacey appealed to the Texas Supreme Court ...

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 the prisoners? voting, a prison official briefed the prisoners on the candidates and proclaimed that ?every elector must cherish the right to vote and vote for the people you support.? All 723 voted.

Warden Wu Qi said that preparations for the election had included raising awareness among prisoners about the election and their right to vote in it, noting that maintaining prisoners? voting rights showed political democracy in his country.

?They were put it prison because they broke the law. However, their legal rights are still protected,? said Wu.

While many European countries, Canada and South Africa allow prisoners to vote, only Maine and Vermont allow prisoners to vote. Indeed, many states disenfranchise former prisoners, parolees and probationers from voting.

Source: People?s Daily

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 42 U.S.C. § 1983 civil rights complaint for damages devolving from the denial-of-access. This ruling expands a prior Sixth Circuit ruling that had entitled similarly-situated Tennessee juvenile wards to attorneys (See: John L. v. Adams, 969 F.2d 228 (6th Cir. 1992)).

In July 2004, a juvenile identified as "S.P." and three others filed a § 1983 complaint alleging that as ODYS wards, they were entitled to attorneys to pursue conditions-of-confinement suits. Defendant ODYS challenged their standing to bring such an action. Separately, another juvenile, T.M., claimed to have been injured in a brutal assault by a guard. He asked in an ODYS grievance for an attorney to represent him, alleging that he wanted to take the issue "to court." 

In considering the defendants' third motion for summary judgment, the district court first addressed the threshold issue of standing, relying upon Christopher v. Harbury, 536 ...

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 was given twenty-three hours of cell restriction. During the restriction, he began yelling profanities and kicking the cell door. He refused to calm down, so he was removed from the cell and escorted to a barber shop. Five hours later, he was removed from the barber shop. An hour later, damage to the barbershop?s sink, towel dispenser, trash can, ceiling tile track and caulking was discovered. Merwin was charged with Class B misdemeanor criminal mischief.

At trail, Merwin testified that he was under continuous observation the whole time he was in the barber shop, that he did no damage to the barber shop and that the damage that was allegedly discovered an hour after he was removed form the barber shop had been there long before the was placed in the barber shop. After the state admitted that it had provided no proof of the value of the furnishings ...

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 used the personal identification number (PIN) of fellow prisoner Patrick Presley to call his sister. That same night, Presley committed suicide.

Two days later, Department of Corrections (DOC) investigator Jeffery Hample questioned Cressionnie about Presley's suicide. Cressionnie asked if he was going to be issued a Rule Violation Report (RVR) for using Presley's PIN. Hample did not say whether he would file an RVR or not.
Under DOC procedures, Hample had 24 hours to issue an RVR but failed to do so.

On December 30, 2003, Cressionnie mailed letters to Presley's mother and wife and their attorney, claiming Presley had committed suicide because of a new prisoner classification system that required Presley's extended isolation.

On December 31, 2003, a local newspaper quoted DOC Commissioner Christopher Epps as saying prison officials had no role in Presley's suicide, which was due to a "Dear John" letter he ...

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 later the same day. As this issue goes to press, Townsend remains at large. Both men were serving lengthy sentences for murder.

Arkansas: On September 11, 2007, while awaiting sentencing on child sex charges, Jerry Scholes, attempted to escape from a Global Positioning Satellite device attached to his leg by sawing his leg through the calf down to the bone, just above the electronic bracelet. Police detective Doroteo Delacruz speculated that Scholes attempted to amputate his leg, rather than remove the device, because by doing so it would not activate the alarm on the device. Delacruz stated that Scholes had given no reason to police for the attempted leg amputation. Delacruz said emergency medical staff had found Scholes with ?plastic zip ties on various parts of his body, including, I?m told, his penis.? Scholes was sentenced to 50 years in prison.

Arkansas: On September 3, 2007, Anna Clark, 55 ...

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 his criminal conviction, which was denied by an Alabama federal district court on March 17, 2004. That Court's docket reflects that the next document was filed a year later when Allen moved to vacate, seeking a belated appeal.

Allen's motion alleged that on March 28, 2004, he gave an envelope with prepaid postage to prison officials that contained a notice of appeal to file with the district court. He claimed he was entitled to the benefit of the "prison mailbox rule."

The district court assumed Allen had timely delivered his notice of appeal to prison officials. However, the court held Allen was ineligible "to receive the benefit of the prison mailbox rule because he had failed to act with reasonable diligence in following up with court officials?" Allen argued on appeal that the prison mailbox rule does not include a due diligence requirement.

The Eleventh Circuit agreed with ...


 

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