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Prisoner Education Guide

Prison Legal News: April, 2007

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Volume 18, Number 4

In this issue:

  1. Reflections on Katrina’s First Year: The Story of Chaos and Continuing Abuse in One of America’s Worst Justice Systems (p 1)
  2. From the Editor (p 14)
  3. Mentally Ill Connecticut Prisoner Assaulted by Guard Awarded $250,000, Plus $121,384.80 in Fees (p 15)
  4. California DOC Stipulates to Providing Comprehensive Dental Care Program (p 16)
  5. PLN Sues Dallas County Jail for Censorship (p 17)
  6. Two Registered Sex Offenders Murdered in Maine (p 18)
  7. Does Parole Work? Apparently Not. (p 19)
  8. Two Victories in New York’s Struggle Against Unjust Telephone Contract (p 20)
  9. Early Release Debacle Prompts Nevada Prison Director’s Resignation (p 22)
  10. California DOC Substance-Abuse Contractor Audits Reveal $5 Million in Overcharges (p 22)
  11. Alabama Transfers Prisoners to Louisiana Rather Than Use In-State Prison (p 23)
  12. Pennsylvania County Pays U.S. INS $16 Million for Detainee Housing Overcharges (p 24)
  13. Prisoners In 13 States Allowed Work-Access To Social Security Numbers (p 24)
  14. Deaths In Alabama Jail Prompt Changes (p 26)
  15. Eight Tennessee Guards Convicted in Prisoners’ Beatings, Death (p 26)
  16. Washington State Supreme Court Justice Reprimanded For Visiting Prisoners (p 27)
  17. Sexual Victimization in Prison Statistically Analyzed (p 28)
  18. Yale University Divests CCA Stock Following Student and PLN Protests (p 28)
  19. Tennessee Prison Contracting Official Engaged to Contractor (p 30)
  20. California Corrections Standards Authority Chided by Inspector General for Failure to Develop Prison Guard Selection and Training Standards (p 30)
  21. Illinois DOC Capitulates On Prison Newspaper Ban (p 31)
  22. Corruption and Violence Plague South Africa’s Post-Apartheid Prisons (p 32)
  23. Chicago Juvenile Detention Center Workers Resist Court-Ordered Reforms (p 32)
  24. Maryland’s Public Information Act Exempt from Administrative Exhaustion Requirements (p 33)
  25. California Sexual Predators’ Suit Alleging Unconstitutional Civil Confinement Conditions Survives Dismissal (p 34)
  26. California Prisoner Fed Finger Settles with Florida Food Manufacturer (p 35)
  27. Ninth Circuit: Before Conducting Warrantless Parole Search, Police Need Probable Cause to Believe Parolee Lives There (p 36)
  28. BOP Mail Rule Banning Internet Downloads and Soft Cover Publications Not Sent by Publisher Held Unconstitutional (p 37)
  29. Oklahoma Orthodox Jewish Prisoners Win Kosher Diet (p 38)
  30. Marin County, California Settles Wrongful Jail Death For $1 Million (p 38)
  31. California-Based Mental Health Systems, Inc.Fails 23 Audits (p 39)
  32. Ninth Circuit: Failure to Timely Set Fractured Thumb is Actionable (p 40)
  33. California State Prisoner Wins $21,800 for 250 Days Excess Incarceration (p 40)
  34. California Prisoner IFP State Civil Filing Fee Statutes Interpreted (p 40)
  35. Sensitive Illinois DOC Personnel Records Compromised (p 41)
  36. News in Brief: (p 42)
  37. Expungement, Not Rehearing, Mandated in Colorado Disciplinary Reversals (p 42)
  38. Los Angeles County Sheriff Immune from Suit on Jail Housing Policies (p 44)

Reflections on Katrina’s First Year: The Story of Chaos and Continuing Abuse in One of America’s Worst Justice Systems

Reflections on Katrina's First Year: The Story of Chaos and Continuing Abuse in One of America's Worst Justice Systems

by Bob Williams

As America reflected on Hurricane Katrina's first anniversary last August, one major component was missing from the many reviews: The abused, neglected prisoners. Ignored during the 2005 catastrophe and still ignored more than 20 months later, the plight of New Orleans' prisoners can no longer be swept under the carpet lest we face judgment as a nation of hypocrites for the way we treat helpless victims, including those who are incarcerated.

Hurricane Katrina has been dubbed an "ultra catastrophe" that "exceeded the foresight of the planners" by the Secretary of Homeland Security, Michael Chertoff, who led the federal government's inept response.

Whatever plan was executed, it was a dismal failure. Many of Katrina's shortcomings were highly publicized but the one that garnered the least attention was the widespread and often horrific abuse of trapped, then displaced, prisoners -- prisoners who were already suffering miserably in a dilapidated criminal justice system that was torn asunder when the broken levees washed away its veil of secrecy, disinformation and hypocrisy to expose the human suffering within.

In ...

From the Editor

This year?s matching grant fundraiser went well and raised a total of $17,994.69. Prisoners donated over $1,000 of this amount. We would like to thank everyone who donated to the fundraiser. Fundraiser donations are making possible the revamping of PLN?s website to be more user friendly and efficient and be able to better disseminate our news and message. As soon as that is completed we will update and upgrade our mailing list program to better ensure the delivery of PLN to all our readers. We will report progress as it happens.

We receive frequent inquiries about the status of the Prisoners? Self Help Litigation Manual by Dan Manville and John Boston. The next edition is being finalized and the authors will promptly announce it?s availability in PLN.

If you move please promptly notify us of your new address to prevent delays in delivery of your subscription. Please review your mailing label to ensure it is correct and send us any changes.

PLN continues to be mentioned in various other media. I was quoted in a recent article in the Los Angeles Times, Seven Days, a Vermont weekly did a story on Prison Legal News ...

Mentally Ill Connecticut Prisoner Assaulted by Guard Awarded $250,000, Plus $121,384.80 in Fees

On March 3, 2006, a federal jury in Connecticut awarded $250,000 to a mentally ill state prisoner who was beaten by a high-ranking prison guard at the Northern Correctional Institution.

According to his amended complaint, Duane Ziemba, a mentally ill prisoner with a long history of self-destructive behavior and ...

California DOC Stipulates to Providing Comprehensive Dental Care Program

by John E. Dannenberg

In settlement of a federal class action lawsuit on December 15, 2005, the California Department of Corrections and Rehabilitation (CDCR) agreed to provide dental care for all prisoners as set forth in a new Dental Policies and Procedures manual (?Manual?) and an Implementation Plan.
CDCR?s watershed program covers all aspects of dental care from cleaning to root-canals and may well serve as a model for all detention systems.
At the very least, it is a complete turnaround from only providing extractions, and even then, possibly at the peril of death from ensuing untreated infection (see: PLN, Apr. 2005, p.20).

Carlos Perez, incarcerated at CDCR?s maximum security Salinas Valley State Prison, was the named plaintiff in a statewide class-action dental health care complaint filed by attorney Alison Hardy of the venerable Prison Law Office. The class is comprised of all CDCR prisoners who have ?serious dental care needs.? The complaint was filed accompanied by a settlement agreement (including attorney fees), which had been pre-negotiated with defendants James Tilton (CDCR Secretary), Peter Farber-Szekrenyi (Chief, CDCR Health Care) and William Kuykendall (CDCR Chief Dentist). Because CDCR medical care services were already under federal receivership (see: ?Federal ...

PLN Sues Dallas County Jail for Censorship

On February 26, 2007, Prison Legal News filed suit against the Dallas County Jail in Dallas, Texas, challenging the jail?s total ban on magazines and newspapers. PLN claims the policy, which took effect on March 31, 2006, violates the publication?s right to free speech and due process of law. PLN is seeking declatory and injunctive relief as well as compensatory and punitive damages and attorneys fees. It has also filed a motion seeking a preliminary injunction to allow its nine subscribers in the jail to receive the mailings.

Under the jail?s current policy issues of PLN are destroyed upon receipt at the jail. Billy Allen, a prisoner at the jail, filed a grievance on July 20, 2006, because he was not receiving the publication. On September 7, 2006 Allen received the jail officials? response, which merely stated that ?newspapers and magazines are no longer allowed at the jail.? Neither Allen nor PLN was notified of the jail?s decision to destroy the publications or given an opportunity to object.

The jail has faced growing criticism for its many human rights abuses, including but not limited to overcrowding, understaffing, and poor medical care. ?If there was ever a ...

Two Registered Sex Offenders Murdered in Maine

by Matthew T. Clarke

A violent criminal predator used Maine's sex offender registry web site to identify two sex offenders so he could murder them.

Stephen A. Marshall, 20, of Cape Breton, Nova Scotia, Canada, used his laptop to methodically research the information posted on 34 registered sex offenders in Maine. He typed in his name to receive additional information, including the street addresses of the sex offenders. He used the addresses to locate William Elliot, 24, of Corinth, Maine, and Joseph Gray, 57, residing in Milo, Maine, whom he then murdered in their homes.

Elliot was nineteen when he was convicted in 2002 of having sex with his girlfriend, who was about to turn sixteen. Gray was convicted of sexually assaulting a child under fourteen. Had Marshall used an alias, police might never have discovered how he obtained the men's information.

On April 11, 2006, Marshall arrived at his 61-year-old father's home in Houlton, Maine. Two nights later he disappeared, along with his father's truck and three guns.

At 3:00 a.m. on April 14, 2006, Gray's wife, investigating why their dogs were barking, saw a man in a dark jacket outside their ...

Does Parole Work? Apparently Not.

More than 774,000 men and women were on some form of community supervision in 2003, up 74.5 percent from 197,000 in 1980. According to a March 2005 study of the Urban Institute, however, ?parole supervision has little effect on re-arrest rates of released prisoners?.

The goal of the study was ?to assess, at an aggregate level, whether parole ?works? at reducing recidivism among those who are supervised after release from state prison?. Researchers raised three key questions: (1) whether ?prisoners released with and without supervision differ with respect to demographics, incarceration characteristics and criminal histories?; (2) whether ?prisoners released with and without supervision recidivate at different rates?; and (3) ?if there are differences in recidivism outcomes between those released with and without supervision, when and for whom does supervision matter most??

Researchers relied upon data from a Bureau of Justice Statistics (BJS) recidivism study entitled Recidivism of Prisoners Released in 1994, which noted that 57 percent of released prisoners were mandatory releases. 35 percent were discretionary (paroled) releases, and 8 percent were unconditional releases (no supervision).

While ?discretionary parolees were less likely to be rearrested than unconditional releases in the two years after release ? the re-arrest rates ...

Two Victories in New York’s Struggle Against Unjust Telephone Contract

Two Victories in New York's Struggle Against Unjust Telephone Contract

by Annette Dickerson, Rachel Meeropol, and Lauren Melodia

Families of those incarcerated by New York State finally won some justice this winter in their fight against a prison telephone contract that charges families of prisoners 630 percent more for collect calls than regular consumer long distance rates. The simultaneous victories came from the highest court of the State and from the newly elected Governor, proving that seemingly intractable forms of oppression are best fought through a campaign that combines litigation with active and effective education and outreach, and takes direction from affected and organized communities.

On January 8, 2007, Governor Spitzer announced that he would eliminate the state commission provision of the New York State Department of Correctional Services (NYSDOCS) prison telephone contract. Governor Spitzer's decision, which will go into effect on April 1, 2007, will immediately reduce the surcharge and per-minute rate of the contract by at least 50 percent -- families will see their phone bills cut in half beginning in April. Governor Spitzer has also guaranteed that the programs previously funded through the contract will remain fully funded through general state funds.

Just over a month ...

Early Release Debacle Prompts Nevada Prison Director’s Resignation

Early Release Debacle Prompts Nevada Prison Director's Resignation

by Matthew T. Clarke

Jackie Crawford, director of the Nevada state prison system since May 2000, announced her resignation from the $116,000-a-year position on September 15, 2005. The announcement cited health issues -- a worsening back problem -- as the reason for stepping down. However, her resignation came amid controversy surrounding Crawford's approval of 98 early prisoner releases. Crawford was the first woman to head Nevada's prison system; she was replaced by Glen Whorton, the former deputy director of the Nevada DOC, who had retired in January 2005.

State government officials had praised Crawford as an innovative prison director who originated new programs benefiting both prisoners and the public. She was lauded for changing the way female prisoner and their children were treated, through parenting classes and other programs. The union that represents 800 of Nevada's prison guards, the State of Nevada Employee's Association (SNEA), however, was not as pleased with Crawford's performance. Both SNEA and the Nevada Corrections Association (NCA), which represents 450 state prison guards, criticized her for being soft on prisoners.

"This soft policy has made it progressively more dangerous for officers as inmates ...

California DOC Substance-Abuse Contractor Audits Reveal $5 Million in Overcharges

by John E. Dannenberg

California?s Inspector General (IG), the state?s overseer of the California Department of Corrections and Rehabilitation (CDCR), discovered $5 million in past overcharges from three substance-abuse treatment contractors, plus $258,250 in overstated expenses and chronic illegal retention of CDCR property after completion of the contracts. Corrections Secretary James Tilton responded to the IG?s report by taking immediate corrective action to recover all such owed funds.

CDCR?s Office of Substance Abuse Programs budgets $143 million annually, $60 million of which is paid to outside non-profit contractors. The IG reviewed three of these contractors? billings versus their actual associated expenses for the fiscal years ending in 2001 through 2004. In FY 2001, Mental Health Systems, Inc. (MHS), a San Diego based contractor, billed $17,612 in such excesses. In the following periods, MHS billed excesses of $93,989, $338,068 and $81,538. Walden House, Inc. was cited for excess billings of $230,233, $501,726, $705,027 and $406,882, respectively. The third firm, WestCare, led the pack with $449,503, $1,105,826, and $1,060,743 for the first three periods. The matter was deemed urgent by the IG because the ...

Alabama Transfers Prisoners to Louisiana Rather Than Use In-State Prison

Overcrowded prisons in Alabama almost landed state prison commissioner Richard Allen in jail. Under current state law the DOC has thirty days to pick up prisoners from county jails once they?ve been convicted. But the prison population being almost double what it was designed to hold has left a backlog of almost 600 prisoners in county jail.
Circuit Judge William Shashy accused prison officials of not doing their job and told Allen to solve the problem or be jailed for contempt.

Allen chose a controversial solution. The DOC accepted a bid from Emerald?s West Carroll Detention Center, in Epps, Louisiana to house the 600 prisoners at a cost of $28 per day. Allen says it?s cheaper than sending those prisoners to the newly constructed private prison in Perry County, Alabama.

The Perry County facility has 700 beds, basketball courts, Direct TV links, a computer lab, exercise room and an educational program. Allen claims that the empty prison would have cost the state $1.4 million more annually than sending them out of state.

Perry County Commissioner Johnny Flowers does not agree. ?The state has to supervise these out-of-state prisoners and that costs. They?ve been doing this ...

Pennsylvania County Pays U.S. INS $16 Million for Detainee Housing Overcharges

by John E. Dannenberg

On October 25, 2006, York County, Pennsylvania agreed to pay the U.S. Immigration and Naturalization Services (INS) $16 million to settle a dispute over alleged overcharges for INS detainees who were housed in the York County Prison (York) between October 1999 and March 2003.

York County subsidized its county prison costs with income from a substantial number of federal detainees. This contract was the subject of a recent audit by the U.S. Office of the Inspector General (OIG), for the period from January 1 through December 31, 2000. During that time, the York County Prison alone housed approximately 1,544 prisoners, including an average of 729 INS detainees, 29 U.S. Marshals Service (USMS) detainees and 0.4 BOP prisoners. The three federal agencies paid York a total of $16.3 million for housing the detainees, plus $872,600 for translators and outside medical care. The audit showed that York?s total operating cost for that year was $24.6 million. In its billing justification, however, York had told the federal agencies that its overall (1999) population basis was only 996 prisoners, not the actual 1,544 number it reported to the state. As ...

Prisoners In 13 States Allowed Work-Access To Social Security Numbers

by John E. Dannenberg

The U.S. Office of the Inspector General (OIG) reported that prisoners in thirteen states had access to Social Security numbers (SSNs) during the course of their prison employment. Following a nationwide survey, the OIG recommended that this access be curtailed to prevent identity theft, although none was reported.

The incidents occurred when prisoners were employed in ?Correctional Industries? jobs where they were processing data, microfilm, order forms or scanning digital data (typically for private firms). The thirteen states were Alabama, Arkansas, Connecticut, Kansas, Montana, Nebraska, New Mexico, North Carolina, Oklahoma, South Dakota, Tennessee, Utah and West Virginia. Only Kansas, Oklahoma and Tennessee had such activity in more than one prison; the federal Bureau of Prisons reported none. In a 1999 federal Government Accountability Office study, 1,400 prisoners nationwide (429 in California) were reportedly employed processing sensitive data.

Tennessee permitted prisoners to scan and enter motor vehicle titles, registration forms, citation information and insurance cancellation data -- often with SSNs. Oklahoma permitted prisoners to process SSN-containing payroll records, vehicle titles and medical records onto microfilm. Nebraska allowed prisoners to enter SSNs from wage and medical claims records, as well as to process prison purchase orders containing ...

Deaths In Alabama Jail Prompt Changes

Two people died in less than 90 days in Alabama’s Baldwin County Corrections Center. On May 30, 2006, at 11:30 p.m., Ross Paul Yates was found slumped over and unresponsive, in his cell, his hands cuffed behind him to a restraint rail on the wall. He was officially pronounced dead the next morning.

Restraint rails and “D-rings” were commonly used in the 600-man facility to restrain disruptive prisoners. Yates was fastened to the restraint rail because he “aggressively” kicked the cell door, said sheriff’s spokesman Lt. John Murphy. Yates was also suspected of being at least mildly retarded.

Lt. Murphy said that Yates had been cuffed to the rail for three hours. By policy, restrained prisoners are supposed to be checked every half hour. Alabama Bureau of Investigation (ABI) is checking to see if policy was followed. The guard in charge at the time of Yates’ death has been transferred.

Coroner Huey Mack Sr., who pronounced Yates dead at 1:30 a.m., said that rigor mortis had already set in when he examined Yates. Rigor mortis takes at least four hour to occur.

“I can’t help but believe that something is not correct,” said Mack. “He ...

Eight Tennessee Guards Convicted in Prisoners’ Beatings, Death

Eight Tennessee Guards Convicted in Prisoners? Beatings, Death

by Gary Hunter

Walter "Steve" Kuntz was beaten to death by jailers in Wilson County, Tennessee. His murder led to a federal investigation, the indictment of nine jailers, six guilty pleas and two convictions.

On January 12, 2003, Kuntz was arrested for driving under the influence, driving with a revoked license and leaving the scene of an accident. Eight hours later he was taken from the Wilson County jail to the hospital, brain dead and with three broken ribs and a damaged scrotum. The medical examiner officially pronounced Kuntz dead two days later -- the victim of homicide.

For over 18 months from 2001 to 2003, second shift jail supervisor Patrick Marlowe and his henchmen were accused of enforcing vigilante justice on defenseless prisoners. The first alert came in early February 2002 when Vincent Gooch filed a complaint stating he had been restrained and beaten by Wilson County guards. Federal and state investigators soon learned of at least 11 other beatings that occurred between July 2001 and Kuntz's death in January 2003. It was Kuntz?s death that finally brought things to a head.

Guards Travis Bradley and William Westmoreland were the ...

Washington State Supreme Court Justice Reprimanded For Visiting Prisoners

Citing an ?appearance of partiality,? a nine-member substitute special panel of the Washington State Supreme Court admonished Justice Richard B. Sanders for his having visited McNeil Island Special Commitment Center in 2003 where he spoke with sexually violent predator prisoners and accepted documents from them.

The panel was concerned that at that time, there was a case pending before the Court challenging the constitutionality of the sexual predator law. Prosecutors lobbied to have Sanders recused, and he eventually disqualified himself. In a later interview, Justice Sanders noted that in Washington, judges are encouraged to visit prisons; he even received continuing judicial education credit for his visit. Prisoners had invited the Court, but the other justices declined -- even warning Sanders not to visit. ?The whole objective of this facility is supposed to be to treat the prisoners, and I thought it was a valuable opportunity to ask the prisoners how they were doing. I thought I gained from the experience, and now I?m being punished for it,? he said. But the special panel held that his admonishment was justified by the ?clear, cogent and convincing evidence? of his behavior.

Justice Sanders spoke with 20 prisoners, one of whom was a ...

Sexual Victimization in Prison Statistically Analyzed

by John E. Dannenberg

The New York Academy of Medicine published a study in June 2006 on rates of sexual victimization of state prisoners. Contrasted with earlier studies that only used small population samples, this study covered all adult prisoners (22,231) in one state, encompassing its twelve male prisons and one female prison. The study was also designed to yield improved validity, based on the phrasing of what are necessarily sensitive questions, and on reliability, enhanced by the use of computer-assisted self-administered interviews (CASI).

A principal result was that the female prisoner-on-prisoner victimization rate was 212 per 1,000 population, over four times that of males (43 per 1,000). Abusive sexual conduct was more likely than non-consensual sexual acts, whether among prisoners or between prisoners and staff. Finally, the study noted that sexual violence within prisons is a major public health hazard that comes back to disproportionately strike poor inner-city populations.

The study reported prior research showing an average national estimated prevalence of sexual assault in prison of 1.9%. Most studies have shown a higher sexual assault rate in male facilities, compared to female.
Females are less likely to suffer assault from staff (rather than from other ...

Yale University Divests CCA Stock Following Student and PLN Protests

According to a May 12, 2006 Securities and Exchange Commission filing, Farallon Capital Management LLC, a hedge fund that handles part of Yale University's $12 billion endowment, has sold all of its shares in Corrections Corporation of America (CCA), the nation's largest private prison operator. Farallon, which controls approximately $10 billion in financial assets, dumped around $90 million in CCA stock over the preceding year; about $1.5 million of that stock was attributed to Yale's investments.

The sell-off of private prison shares by one of the country's top universities followed a year-long period of organizing and campaigning by Yale's Graduate Employees and Students Organization (GESO). GESO argued that investing the school's funds (including student tuition payments) in a private prison company was a moral issue due to CCA's history of inhumane treatment of prisoners, an over-reliance on mass incarceration, and the disproportionate imprisonment of minorities. Students and teachers at eight other colleges, including Duke University and the University of Michigan, also called on Farallon to divest its CCA holdings.

GESO's anti-CCA campaign included protest rallies on December 1, 2005 and March 27, 2006 that drew hundreds of supporters. PLN editor Paul ...

Tennessee Prison Contracting Official Engaged to Contractor

The Tennessee Department of Corrections (TDOC) is investigating whether a romance between a prison contract oversight official and a prison contractor involved any impropriety.

TDOC purchasing director Nola Butler disclosed her romantic relationship with prison commissary contractor Martin Jennen, president of American Commissary Supply-US, to TDOC Assistant Commissioner Catherine Posey in August or September 2005. Posey told then-Acting TDOC Commissioner Gayle Ray.

Despite the revelation about a possible conflict of interest, Jennen?s company was awarded a contract to provide the TDOC?s prison commissaries with, among other items, peanut butter, tuna fish and toothpaste. Butler was not directly involved in awarding the contract, which was done by the General Services Department (GSD). However, Butler was TDOC?s liaison to GSD and had oversight responsibilities over the contract. GSD was not informed of the relationship.

A Tennessee newspaper learned of the relationship and made an inquiry. Six days later, on July 31, 2006, the TDOC?s contract with American Commissary Supply-US was cancelled. GSD spokeswoman Lola Potter stated that the contract was terminated due to TDOC officials? complaints regarding poor performance by the company. She said that a March 20, 2006 warning letter indicated that the termination process was initiated ...

California Corrections Standards Authority Chided by Inspector General for Failure to Develop Prison Guard Selection and Training Standards

The California Inspector General (IG) reviewed progress in October, 2006 on his seven earlier (2005) recommendations to the 19-member Corrections Standards Authority pertaining to development of selection and training standards for prison guards, and found that only two had been partially accomplished. The IG found that the responsible agency, the Commission on Correctional Peace Officer Standards and Training (?Commission?), had been so deficient in its performance that the guard apprenticeship program, which depends in part on federal funds, was in danger of being decertified.

In his 2005 report, the IG had determined that the Commission failed its key function of setting prison guard training and selections standards because the executive board had not met for one year. Worse yet, the Commission?s inaction imperiled continued certification due to non-compliance with state and federal apprenticeship program standards. The IG expressly found that the Commission?s independence had been undermined by influence from the prison guards union (CCPOA). Finally, the Commission?s membership structure, prone to voting-deadlocks, caused institutional paralysis.

In 2004, the Governor?s blue-ribbon Independent Review Panel labeled the guard?s apprenticeship program a ?paper shuffle nightmare? and recommended it be eliminated in favor of a field training program.
Nonetheless ...

Illinois DOC Capitulates On Prison Newspaper Ban

by John E. Dannenberg

The Illinois Department of Corrections (IDOC) settled a publisher?s civil rights complaint challenging the arbitrary ban of Stateville Speaks, a nascent newspaper containing writings by IDOC prisoners. The IDOC amended its mail regulations regarding ?unacceptable publication? reviews (20 Ill. Adm. Code § 525.230) to provide ...

Corruption and Violence Plague South Africa’s Post-Apartheid Prisons

Corruption and Violence Plague South Africa's Post-Apartheid Prisons

by Gary Hunter

Corruption plagues South African (SA) prisons at every level as prisoners suffer violence and torture from both prisoners and warders alike.

Former high court judge Thabani Jali was commissioned, in 2003, to launch an extensive probe of SA prisons. His five volume, 3,500 page report was so unsettling that Correctional Services Minister Ngconde Balfour launched his own futile attempt to defuse its explosive findings.

On September 16, 2006, two days before the Jali Report was released, Balfour optimistically reported that the country's prisons had either implemented or were in the process of implementing 60% of the report?s recommendations.

Two days later Balfour submitted only a 61-page version of the Jali Report to Parliament. Names of allegedly corrupt officials were not included in Balfour's "distilled" version.

Committee chairperson Dennis Bloem complained that the incomplete version prevented Parliament from implementing proper oversight. Balfour cited the need to provide accused officials an opportunity to defend themselves as a defense of his version of the report.

On October 21, 2006, Judge Jali accused Balfour of doctoring the report in an attempt to cover up the extensive fraud, corruption ...

Chicago Juvenile Detention Center Workers Resist Court-Ordered Reforms

by John E. Dannenberg

In June 1999, the American Civil Liberties Union (ACLU) won a suit against Chicago?s Cook County to abate unconstitutionally sordid, unsafe and abusive conditions at its Juvenile Temporary Detention Center (JTDC), conditions that had been tied to staff improprieties and inaction. But as of June 2006, conditions were still so rife that the overseeing federal court had to issue an Agreed Supplemental Order (ASO) to bring JTDC into compliance within 60 days. In spite of the ASO, the court?s monitor reported that JTDC staff were continuing to resist many of the ordered changes, and asked the court to intervene.

To settle the suit, Cook County agreed in 2002 to correct gross deficiencies in sanitation, maintenance, mental health care, parental interface, student training and even abuse of the children. Failing to comply, JTDC was ordered in the June 2006 ASO to generate a compliance plan of action within 60 days. Brenda Welch (former warden at the Joliet Correctional Center and principal at the DuPage County Children?s Center) was appointed as court monitor. The new plan gave JTDC eight months to comply with the 2002 settlement and the ASO. Separately, the FBI and Illinois Attorney ...

Maryland’s Public Information Act Exempt from Administrative Exhaustion Requirements

Maryland's Public Information Act Exempt from Administrative Exhaustion Requirements

The Maryland Court of Appeals has held that a prisoner is not required to exhaust administrative remedies to bring an action under the Public Information Act.

Before the Court was a case filed by Richard C. Massey, Jr., a prisoner at Maryland?s Western Correctional Institution (WCI). Massey sought from WCI's warden public records on contracts pertaining to health services, canteen services and photocopying services. After two different requests seeking those documents were not answered, Massey filed a complaint in circuit court to compel disclosure. That court granted prison officials' motion to dismiss, and the Court of Special Appeals affirmed.

Prison officials argued that Maryland?s Prison Litigation Act's (PLA) "exhaustion requirement appl[ies] to virtually every kind of civil matter that could be brought by a DOC inmate in State Court." The Court said it had to review three separate statutes to make a ruling.

The first statute, ch. 210, created the Inmate Grievance Office for when a prisoner "has a grievance against an official or employee of the Division of Correction or the Patuxant Institution." Next, the Court looked to the Maryland Public Information Act, ch ...

California Sexual Predators’ Suit Alleging Unconstitutional Civil Confinement Conditions Survives Dismissal

California Sexual Predators' Suit Alleging Unconstitutional Civil Confinement Conditions Survives Dismissal

by John E. Dannenberg

A class of 600 civilly committed sexually violent predators (SVP) sued the California Department of Mental Health (DMH) under 42 U.S.C. § 1983, complaining of a litany of unconstitutional conditions of confinement. When the state defendants moved to dismiss, principally on qualified immunity grounds, the Ninth Circuit U.S. Court of Appeals largely sustained the district court's denial of the motion in an instructive opinion that, at the very least, fixed civilly committed SVPs? rights at no less than those of criminally committed prisoners.

James Hydrick and 29 other named SVP plaintiffs confined at the DMH's Atascadero State Hospital (ASH) attacked their confinement conditions in a sweeping civil rights complaint filed in U.S. District Court (C.D. Cal.) in 1998. Plaintiffs sought declaratory and injunctive relief as well as damages. Having been civilly committed to "cure" their dangerous sexual predilections, they were subject to a multi-year five-phase treatment program to earn their eventual release. The program was so arduous, however, that most SVPs refused it in hopes that a jury will release them at a future biennial recommitment hearing. (See: PLN ...

California Prisoner Fed Finger Settles with Florida Food Manufacturer

On January 31, 2006, a Florida food company reached a confidential settlement agreement with a California state prisoner who found a three-quarter inch long human finger tip in one of the company?s prepackaged meals.

While confined in isolation at California?s Pelican Bay Prison on March 20, 2005, prisoner Felipe Rocha was provided a SunMeadows prepackaged meal tray that was manufactured by GA Food Services. As he ate the included cornbread, Rocha noticed a crunchy object. He spit it out, and, to his horror, realized he?d been eating the end of a human finger.

The company acknowledged responsibility and expressed their ?deepest apologies? in a March 29, 2005, letter to Rocha. The letter confirmed that an employee had cut off the tip of his finger on the date the meal was manufactured and detailed how it had come to be included in the meal despite their best efforts to thoroughly sanitize the production equipment.

On July 20, 2005, Rocha filed suit in the U.S. District Court for the District of California seeking compensatory and other damages for his resultant physical and emotional injuries. GA Food Services, not surprisingly, settled with Rocha for an undisclosed sum.

Rocha was ...

Ninth Circuit: Before Conducting Warrantless Parole Search, Police Need Probable Cause to Believe Parolee Lives There

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals has held that ?before conducting a warrantless search pursuant to a properly imposed parole condition, law enforcement officers must have probable cause to believe that the parolee resides at the house to be searched.? The court distinguished this from the separate (and unsettled) issue of whether those officers also needed particularized suspicion of wrongdoing before conducting such a search ? a question the U.S. Supreme Court had recently accepted on certiorari (Sampson v. California, 126 S.Ct. 34 (2005)).

Darla Motley was the girlfriend of parolee Janae Jamerson. When Jamerson, a Four Trey Crips gang member, was paroled on February 20, 1998, he moved in with Motley. On February 3, 1999, he was violated and taken back into custody. On March 18, 1999, a crime task force of Los Angeles police (LAPD), federal ATF and California parole agents group-searched ten residences in the crime-ridden Newton Street area of Los Angeles. They had Jamerson?s last listed address as Motley?s, and, notwithstanding that Jamerson was already in custody, hit Motley?s home.

The two ATF agents covered the back door while parole agent Guadalupe Sanchez and LAPD officer ...

BOP Mail Rule Banning Internet Downloads and Soft Cover Publications Not Sent by Publisher Held Unconstitutional

by John E. Dannenberg

On October 26, 2006, in an unpublished order, the U.S. District Court (D. Colo.) held that 28 C.F.R. § 540.71(a)(2), which restricts Bureau of Prisons (BOP) prisoners from receiving soft cover publications unless they come directly from the publisher, a book club or a bookstore, satisfies no legitimate penological interest and therefore violated the prisoners? First Amendment rights.

Mark Jordan, a BOP prisoner at ADX Florence, was refused mail delivery containing a 120-page internet essay series entitled ?Justice Denied,? photocopies of two magazine articles and clippings from articles. None of these materials advanced prison gangs, escape, racism or hatred, or contained pornography. Jordan brought his civil rights claims in federal district court in November 2003. The case went to a one-day bench trial in July 2006.

The court made findings of fact that (1) in January, 2003, the BOP amended § 540.71 to include ?[a]t medium security, high security and administrative institutions, an inmate may receive soft-cover publications (for example, paperback books, newspaper clippings, magazines and other similar items) only from the publisher, from a book club, or from a bookstore;? (2) the regulation?s stated purpose was ?to reduce ...

Oklahoma Orthodox Jewish Prisoners Win Kosher Diet

by John E. Dannenberg

Three Orthodox Jewish state prisoners won both preliminary and permanent injunctive relief requiring the Oklahoma Department of Corrections (ODOC) to provide them a Kosher diet at no personal cost.

Prisoners Dennis Fulbright, Jon Cottriel and Jerry Harmon brought individual 42 U.S.C. § 1983 actions in 2003 against then Director of Corrections Ron Ward, claiming that ODOC?s policy of not providing a Kosher diet violated their sincere religious beliefs. The court consolidated the three actions and entertained joint motions for a preliminary injunction.

After Ward retired, ODOC moved to dismiss on mootness grounds when the new director, Justin Jones, verbally conceded the prisoners? First Amendment rights were being violated. The court rejected a mootness defense because there was not an ?absolute assurance? that future directors would adopt the same policy, noting that ?a defendant?s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice unless it is absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur,? citing Buckhannon v. W. Virginia DIMS, 532 U.S. 598, 609 (2001).

Next, the court rejected Jones? evasive maneuver claiming that ...

Marin County, California Settles Wrongful Jail Death For $1 Million

by John E. Dannenberg

Marin County, California settled with the surviving family of a man who died after being hog-tied upon his arrest by Marin County Sheriff deputies.

Cary Grime was a pedestrian at 2 a.m. in the city of Novato on August 17, 2003. He was observed by ...

California-Based Mental Health Systems, Inc.Fails 23 Audits

by John E. Dannenberg

San Diego, California-based nonprofit addict-counseling firm Mental Health Systems, Inc. (MHS) may have been making a profit on its annual revenues of $65 million, after all. In May 2006, the San Diego County Health and Human Services Agency asked MHS to reimburse the county $83,278 -- $40,000 alone for fees that top MHS executives charged for personally guaranteeing a $1 million line of credit for the firm. The balance was for other wrongfully billed expenses.

County contract compliance manager Diana Francis asked that the money be returned within one week. Her angst was understandable: two months earlier a state investigation into similar questionable expenses for a state prison therapy program resulted in MHS returning $61,000 to the state of California. Moreover, San Diego County had cited MHS for improper billing (including padding hours) for the past three years.

MHS?s board of directors had approved the loan guarantee fee, in the form of a $1,208 payment per month to MHS executives William Eastwood and William Mead. Having to pay expenses up front while waiting long periods for government reimbursement on its contracts, asset-poor MHS couldn?t qualify for the needed credit, so Eastwood ...

Ninth Circuit: Failure to Timely Set Fractured Thumb is Actionable

by John E. Dannenberg

A California prisoner who severely fractured his right thumb when falling from an upper bunk stated sufficient facts to assert an Eighth Amendment claim for deliberate indifference to his serious medical needs, as well as a violation of California Government Code (GC) § 845.6 [state law right to immediate medical care for serious needs]. The Ninth Circuit U.S. Court of Appeals thus reversed the district court?s order granting summary judgment to the defendants.

Lance Jett was injured on October 27, 2001 at California State Prison Sacramento (CSPS). While his injury was not completely ignored, his medical treatment was woefully delayed in spite of Jett?s numerous complaints and grievances. At issue was whether the care provided fell below the Eighth Amendment standard of deliberate indifference and whether he suffered sufficient injury from such indifference.

Over a period of 19 months, Jett was shuttled from one doctor to another. He had X-rays which showed ?healing? but also revealed permanent disability resulting from a failure to properly set the fracture initially. Jett finally sued under 42 U.S.C. § 1983, claiming deliberate indifference. The district court granted summary judgment to defendant doctors Penner and Peterson, and ...

California State Prisoner Wins $21,800 for 250 Days Excess Incarceration

On July 5, 2006, a jury awarded $21,800 to a California state prisoner after the California Department of Corrections and Rehabilitation (CDCR) miscalculated his good time/work time credits on his twelve year sentence.

Jorge Gallegos, a Mexican national, was sentenced to state prison in September 1995. With CDCR ...

California Prisoner IFP State Civil Filing Fee Statutes Interpreted

by John E. Dannenberg

In an important ruling for all California in forma pauperis (IFP) prisoner state civil complaint plaintiffs, the California Court of Appeal interpreted the application of the mandatory prisoner civil filing fee statutes, Government Code (GC) § 68511.3 and Penal Code (PC) § 2601.

Phillip Sanders had filed a civil rights complaint in Los Angeles Superior Court against prison officials. He asked the court for a waiver of court fees per California Rules of Court § 985(i), which was granted. A year later in the proceedings, defendants complained that the court did not have jurisdiction because Sanders had not paid the filing fees mandated by GC § 68511.3 and PC § 2601. The trial court, in granting a motion to dismiss that argued non-payment of a filing fee divests a court of jurisdiction (citing Davis v. Superior Court, 184 Cal. 691, 693-95 (1921)), further held that equitable tolling would be applied against arguments regarding the statute of limitations.

The court of appeals disagreed with the trial court and the defendants. First, it held that the original fee waiver ruling, because it had never been vacated, was still in force. The appellate court noted that even an illegal order must ...

Sensitive Illinois DOC Personnel Records Compromised

The Illinois Department of Corrections (IDOC) recently mishandled personnel information on ?virtually all? of its 13,500 employees. Additionally, the Department of Transportation lost data on 40 of its employees.

An angry public employees? union demanded to know when the breach occurred, what had been done to correct it, and whether IDOC would take responsibility for any credit losses due to associated identity theft. The union also asked if state law had been followed after the losses. This law requires informing all affected employees and the state?s General Assembly. IDOC replied on September 12, 2006 only that a payroll report containing names, salaries and Social Security numbers of most IDOC employees ?was found at an outside location, where it should not have been.? The union complained that IDOC had so far refused to divulge details so that affected individuals could take steps to protect themselves against identity theft. IDOC said only that it was ?investigating,? and couldn?t comment.

The two incidents occurred 18 months after the Belleville News Democrat found personnel records in unsecured trash bins outside of the Employment Security and Humans Rights offices in 2005. In November, the newspaper found similar documents in the trash outside ...

News in Brief:

Brazil: On September 12, 2006, Colonel Ubiritan Guimaraes, a former military police commander who in 1992 oversaw the storming of the Carandiru prison in which 111 prisoners were murdered by police, was found dead in his Sao Paulo apartment of a single gunshot wound to his chest, wrapped in a towel. Guimaraes was extremely popular for leading the prison massacre and was running for his third term as a state legislator, where he campaigned with the number ?111?, that he was expected to easily win. He campaigned on a ?tough on crime? platform and had the body count to prove it.

California: On February 15, 2007, Santiago Pineda, 25, was sentenced to death for choking and running down a man whose car he had stolen. In 2003 Pineda had escaped from the Los Angeles jail by stealing another prisoner?s wristband and being ?released? as the other prisoner. However, it was Pineda?s 2004 murder of informant Raul Tinajero in the Los Angeles jail, after Tinajero had testified against him in the first murder case, which led to the death sentence. Pineda was able to roam the jail for hours before entering Tinajero?s cell and strangling him to death ...

Expungement, Not Rehearing, Mandated in Colorado Disciplinary Reversals

In an unpublished opinion, the Colorado Court of Appeals has held that expungement of a prisoner?s disciplinary record, not a rehearing, is an appropriate remedy when reversed on administrative or judicial review.

Colorado prisoner Lewis Simpson was convicted of Code of Penal Discipline (COPD) violations for assault and advocating a facility disruption. The only evidence was a confidential informant (CI). After exhausting administrative remedies (a disciplinary appeal), Simpson filed for judicial review pursuant to Colorado Rules of Civil Procedure Rule 106.

Crowley County District Court Judge Jon Kolomitz, known for lambasting the Colorado Department of Corrections (CDOC) in their insistence on rehearing all disciplinary reversals until a conviction sticks, found that a biased CDOC hearing board improperly handled the confidential information; also, a waiver of right to remain silent was not found in the record. The district court further found insufficient evidence to convict Simpson under the ?some evidence? standard. The court ordered Simpson?s conviction vacated and his record expunged, restored 45 days of withheld good time credits, and awarded an additional 50 days good time credits for the 30 days Simpson had spent in punitive segregation.

On appeal, the Court agreed with Judge Kolomitz?s findings on ...

Los Angeles County Sheriff Immune from Suit on Jail Housing Policies

by John E. Dannenberg

The California Court of Appeal held that the Los Angeles (L.A.) County Sheriff was immune from suit under 42 U.S.C. § 1983 for injuries suffered by a prisoner who claimed his suffering was due to jail housing policies that failed to protect him from other prisoners. The legal question was whether the Sheriff acted as an agent of the State (enjoying 11th Amendment protection from suit) or of L.A. County (and was therefore exposed to municipal liability) when setting these policies. Because the plaintiff sued in state court, he was held to a California State Supreme Court holding on point; had he sued in federal court he might have gained the benefit of more favorable Ninth Circuit precedent on this issue.

Despite Deon Bougere?s repeated requests to jail staff to be moved to another facility, he was injured in attacks by other prisoners in the L.A. County Jail after receiving threats against his life based upon his ancestry, ethnicity and race. He sued L.A. County for his injuries under § 1983 in state superior court. That court sustained the County?s demurrer without leave to amend after holding that because the ...

 

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