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Prison Legal News: September, 2007

Issue PDF
Volume 18, Number 9

In this issue:

  1. Management & Training Corp. Struggles to Maintain Market Share (p 1)
  2. Houston Jail Has Highest Number of Deaths in Texas: 101 (p 9)
  3. Florida Jails: State’s Largest Mental Health Providers (p 10)
  4. From the Editor (p 10)
  5. Chains of Love (p 12)
  6. Gannet New Jersey’s Witch Hunt for Public Employees with Criminal Records (p 14)
  7. Colorado Investigates Former Prison Director for Malfeasance Following State Audit (p 16)
  8. Sixth Circuit Now Permits § 1983 Complaint to Proceed Even if Prisoner Did Not Initially Plead Exhaustion Below (p 17)
  9. 20 Florida Prison Officials Fired or Suspended After Prisoner Beating, Party (p 18)
  10. Ohio Lawyer Suspended for Bilking Prisoners’ Families (p 19)
  11. Florida’s Civil Commitment Center Exhibits Little Change Despite New Contractor (p 20)
  12. Connecticut Takes Cut of Prisoner Judgments and Inheritances (p 21)
  13. Texas Must Afford Prisoners Due Process in Trust Fund Garnishment (p 22)
  14. Florida Homeless Sex Offender Ruling Reversed, FDOC Changes Policy Anyway (p 22)
  15. Texas Court of Appeals Reverses Termination of Prisoner’s Parental Rights (p 23)
  16. China Admits Illegally Harvesting Organs From Executed Prisoners (p 24)
  17. Big Brother Monitoring Michigan Sex Offenders (p 24)
  18. CCA Pays $438,626 for Discriminatory Hiring Practices in Arizona (p 25)
  19. U.S. Parole Commission Rules are “Laws” for Ex Post Facto (p 25)
  20. Maryland Closes Decrepit, Scandal-Plagued House of Correction (p 26)
  21. California DOC Finally Discloses Some Records In $4.1 Billion Of Public Contracts (p 26)
  22. California Contract Healthcare Management Firm Locked Out; Fees Withheld; (p 26)
  23. Washington’s Criminal Justice System Racially Biased; Voting Rights Act Claim Fails Anyway (p 28)
  24. § 1983 Suit Challenging New York’s Blanket Parole Denial “Policy” Survives Motion to Dismiss (p 28)
  25. $1,000,000 Award for Attorney’s Failure to Prosecute Prisoner’s Lawsuit (p 29)
  26. Eighth Circuit Reverses Dismissal on Wrong Medication Claims (p 29)
  27. Erroneous Jury Instruction Nets Raped Missouri Prisoner New Civil Trial (p 30)
  28. Pennsylvania DNA Act Not Ex Post Facto (p 30)
  29. Guards Settle “Sick Building” Claim at Florida Jail for $495,000 (p 30)
  30. New Investigative Solution by LexisTracks Sex Offenders, Wherever They Are (p 31)
  31. Illinois Parole Board Pays Nearly $11,000 in Attorney Fees, Can Only Charge Reasonable Postage and Copying Costs (p 32)
  32. Forced Work in Dangerous Washington Prison Job Conditions States Eighth Amendment Claim (p 32)
  33. CCA Fined for Florida Jail Escape; County Commission Poised to Impose More Fines (p 33)
  34. California: Disciplinary Conviction Upheld Where Petitioner Argued Only Violation of Constitutional Rights, Not State Law Rights (p 34)
  35. Bivens Claims Against Private Prison Employees May Fail When Other Remedies Available (p 34)
  36. Fulton County Jail Consents to Improve Dismal Conditions (p 36)
  37. California Sexual Predator Commitment Requires Trial; Cannot be Based on Civil Discovery Admissions (p 36)
  38. Collection-Rate of Appellate Costs Taxed to Prisoner Reduced to Rate for PLRA Filing-Fees (p 37)
  39. Evidentiary Hearing Ordered For AEDPA Equitable Tolling Claim Arising From Transfer to Out-Of-State Prison (p 38)
  40. Direct Contempt of U.S. Court Must Be in Court’s Presence; Conviction Reversed (p 38)
  41. Refusal to Give Nitro Tablets to Prisoner With Chest Pain Actionable (p 39)
  42. Nevada Psychological Review Panel Hearings Subjected to Open Meeting and Constitutional Due Process Requirements (p 40)
  43. Wisconsin Over Detention Suit Not Barred by Rooker-Feldman Doctrine (p 41)
  44. News in Brief: (p 42)
  45. No Qualified Immunity for Ignoring Heart Condition Leading to Prisoner’s Death (p 42)
  46. O.K. to Ban Suspicious Indiana Sex Offender from Parks (p 44)

Management & Training Corp. Struggles to Maintain Market Share

For-profit private prison operator Management & Training Corporation (MTC) has recently lost lucrative contracts to run prisons in the United States and Canada. While the private prison industry is dominated by industry giants Corrections Corporation of America, Geo Corporation and Cornell Corrections, a number of smaller private prison companies hold the remaining 20% of the private prison ?market?. Not as well known as their bigger colleagues, nonetheless, these companies suffer the same problems and shortcomings of their industry as a whole. The ongoing consolidation of the private prison industry by CCA and Geo Corp. also makes the ongoing existence of the smaller companies questionable. The smaller companies tend to lack the deep pockets, lobbying resources and economies of scale that make CCA and Geo Corp., the dominant players in the private prison industry. But none of that really maters to the prisoners housed in the smaller for profit prisons nor to the people employed by them.

Before terminating its contract at New Mexico?s Santa Fe county jail in 2005, the company had been sued for a wrongful death, rape, suicide and illegal strip searches at the facility. The Canadian government also declined to renew MTC?s management contract for the Central North Correctional Center (CNCC) in 2006 following two prisoner deaths, multiple stabbings, employee protests, and a comparative study that found a physically identical, publicly-run facility was more cost effective and efficient. These incidents compound other problems the company has experienced over its troubled past.

MTC, based in Utah, was incorporated in 1980 after its parent company, Thiokol, began divesting itself of all non-aerospace interests. At the time Thiokol operated the Clearfield Job Corp center and similar projects; MTC emerged from Thiokol as the independent operator of four Job Corp contracts. Today MTC employs about 7,200 people and has been lauded by Utah Business magazine as the state?s largest private company.
MTC has a corrections division and another division that ...

Houston Jail Has Highest Number of Deaths in Texas: 101

Between 2001 and 2006, 101 prisoners died while in custody at Houston's Harris County Jail, more than in any other Texas county. Dallas County's jail had 70 deaths over the same period.

The Harris County Jail has an average population of 9,000 prisoners, and has failed to ...

Florida Jails: State’s Largest Mental Health Providers

Florida Jails: State's Largest Mental Health Providers

by David M. Reutter

Florida's policy of allowing mentally ill citizens to languish without treatment until they have encounters with law enforcement has turned the state's county jails into the primary provider of mental health services. This has created fiscal ...

From the Editor

About the only bad thing about publishing a magazine for 17 years is that invariably we lose friends and supporters. Noting the passing of friends is the sole thing I dislike about editing PLN. Moreso when we are talking about some of the unsung heroes and heroines of the prisoners ...

Chains of Love

by Siobhan O?Connor

Nearly half a million women are married to men in prison. Maintaining these relationships involves a constant struggle with an often unsupportive penal system, despite growing evidence that a healthy marriage is one of the best tools for rehabilitation. Welcome to the intersection of prisons, love ...

Gannet New Jersey’s Witch Hunt for Public Employees with Criminal Records

Gannet New Jersey's Witch Hunt for Public Employees with Criminal Records

by Matthew T. Clarke

The media in New Jersey, spearheaded by Gannett New Jersey publications, has embarked on a campaign to root out public employees with criminal records.

On April 1, 2007, Gannett New Jersey published the results ...

Colorado Investigates Former Prison Director for Malfeasance Following State Audit

The Colorado State Auditor completed a review of the state?s private prison contracts in November 2006. The audit found that former Director of Prisons Nolin Renfrow?s ?private business activities arguably present a conflict of interest and result in a breach of his fiduciary duty and the public trust ...

Sixth Circuit Now Permits § 1983 Complaint to Proceed Even if Prisoner Did Not Initially Plead Exhaustion Below

by John E. Dannenberg

The Sixth Circuit U.S. Court of Appeals has vacated its precedent which held that a prisoner had an affirmative burden to plead exhaustion of administrative remedies in a § 1983 complaint. Following the recent U.S. Supreme Court ruling contra in Jones v. Bock, 127 S ...

20 Florida Prison Officials Fired or Suspended After Prisoner Beating, Party

by David M. Reutter

Continuing his quest to clean up the chronically corrupt Florida Department of Corrections (FDOC), Secretary James McDonough fired or suspended at least 20 officials at Hendry Correctional Institution (HCI) for actions related to a prisoner beating.

Prior to McDonough taking FDOC's helm in February 2006 ...

Ohio Lawyer Suspended for Bilking Prisoners’ Families

Ohio Lawyer Suspended for Bilking Prisoners' Families

On November 1, 2006, Ohio's Supreme Court suspended attorney Derek A. Farmer from the practice of law for two years.

Admitted to the bar in 1999, Farmer became known as a prisoners' lawyer, maintaining a practice that focused mainly on criminal appeals ...

Florida’s Civil Commitment Center Exhibits Little Change Despite New Contractor

Florida's Civil Commitment Center Exhibits Little Change Despite New Contractor

by David M. Reutter

Despite recent scandals and a new private contractor, the Florida Civil Commitment Center (FCCC) is still a facility with little direction other than as a confinement center to warehouse sex offenders who have completed their ...

Connecticut Takes Cut of Prisoner Judgments and Inheritances

by Matthew T. Clarke

Connecticut has enhanced its use of a state law (C.G.S.A. § 18-85a) that allows it to recover costs of incarceration from prisoners, targeting prisoners who benefit from a ?windfall? such as an inheritance, insurance settlement, legal judgment or lottery payment.

The state began actively ...

Texas Must Afford Prisoners Due Process in Trust Fund Garnishment

by Matthew T. Clarke

In an unprecedented decision, a Texas court of appeals held that the state must give a prisoner notice and other due process protection when garnishing his trust fund for payment of criminal fines.

Zakee Kaleem Abdullah, a Texas state prisoner, filed an appeal after the trial ...

Florida Homeless Sex Offender Ruling Reversed, FDOC Changes Policy Anyway

by David M. Reutter

Florida?s Fifth District Court of Appeals has reversed, on procedural grounds, an order by the Volusia County Circuit Court that enjoined the Florida Department of Corrections (FDOC) from engaging in the ?practice of automatically violating the probation of every sex offender who fails to give ...

Texas Court of Appeals Reverses Termination of Prisoner’s Parental Rights

Texas Court of Appeals Reverses Termination of Prisoner's Parental Rights

by Matthew T. Clarke

A Texas court of appeals held that when terminating a prisoner's parental rights the two-year period of incarceration used to justify the termination begins after the petition to terminate parental rights has been filed ...

China Admits Illegally Harvesting Organs From Executed Prisoners

China has long been accused of illegally harvesting human organs from its executed prisoners. On November 19, 2006 Deputy Health Minister Huang Jiefu admitted that the suspicions were true.

?Under-the-table business must be banned,? Mr. Huang told a conference of surgeons in Guangzhou. ?The harvesting, distribution and use of organs ...

Big Brother Monitoring Michigan Sex Offenders

Not satisfied with conventional methods of monitoring sex offenders, Michigan is taking a hi-tech approach. Along with the ubiquitous ?school safety zones? and residency restrictions, concerned citizens can now be notified by email when changes are made to the state?s online sex offender registry. Michigan officials are also expanding ...

CCA Pays $438,626 for Discriminatory Hiring Practices in Arizona

Corrections Corporation of America (CCA), the nation's largest private prison operator, has agreed to pay more than $438,000 to settle allegations of discriminatory hiring practices at the company's Central Arizona Detention Center in Florence, according to a February 23, 2007 report in the Arizona Republic.

Investigators with ...

U.S. Parole Commission Rules are “Laws” for Ex Post Facto

U.S. Parole Commission Rules are "Laws" for Ex Post Facto

The United States Court of Appeals for the District of Columbia (DC) Circuit held that a lower court incorrectly concluded that new parole regulations were not "laws" for ex post facto purposes.

In 1997, Congress transferred responsibility for "all ...

Maryland Closes Decrepit, Scandal-Plagued House of Correction

The dilapidated and violent relic known as the Maryland House of Correction (MHC) has finally closed. MHC?s remaining 842 prisoners were transferred on March 16, 2007. The most troublesome prisoners were moved to various federal prisons around the country; the rest were sent to facilities in Kentucky, Virginia, and ...

California DOC Finally Discloses Some Records In $4.1 Billion Of Public Contracts

by John E. Dannenberg

Four years after California?s Department of General Services (DGS) ordered the Department of Corrections and Rehabilitation (CDCR) to publicly post details on $4.1 billion worth of contracts, CDCR complied in late March 2007.

In 2003, DGS advised CDCR that it was required that all ...

California Contract Healthcare Management Firm Locked Out; Fees Withheld;

State Officials Resign

by John E. Dannenberg

California?s federal receiver over prison healthcare, Robert Sillen, took umbrage with Florida-based private contractor Medical Development International (MDI) by withholding $2.6 million in fees and locking MDI out of two southern California prisons in February 2007. Two high-level state prison health ...

Washington’s Criminal Justice System Racially Biased; Voting Rights Act Claim Fails Anyway

Washington's Criminal Justice System Racially Biased; Voting Rights Act Claim Fails Anyway

Despite finding that Washington state's criminal justice system is racially biased, a federal district court has held that the state's felon disenfranchisement law does not result in discrimination in the electoral process in terms of ...

§ 1983 Suit Challenging New York’s Blanket Parole Denial “Policy” Survives Motion to Dismiss

§ 1983 Suit Challenging New York's Blanket Parole Denial "Policy" Survives Motion to Dismiss

by John E. Dannenberg

The U.S. District Court (S.D. N.Y.) denied the New York State Division of Parole's ("Board") motion to dismiss a civil rights complaint brought by ten New York state ...

$1,000,000 Award for Attorney’s Failure to Prosecute Prisoner’s Lawsuit

$1,000,000 Award for Attorney's Failure to Prosecute Prisoner's Lawsuit

On January 4, 2006, a Boston Superior Court awarded a $1,000,000 judgment against an attorney for failing to prosecute a lawsuit on behalf of a prisoner at Massachusetts' Suffolk House of Correction (SHC).

While incarcerated ...

Eighth Circuit Reverses Dismissal on Wrong Medication Claims

The Eighth Circuit Court of Appeals reversed a lower court?s grant of summary judgment to prison officials, related to erroneous administration of another prisoner?s psychotropic medication.

On January 26, 2004, Nurse Assistant Lorna Bell mistakenly required Missouri prisoner James Spann to take another prisoner?s psychotropic medication, even ...

Erroneous Jury Instruction Nets Raped Missouri Prisoner New Civil Trial

The Eighth Circuit Court of Appeals reversed a jury verdict against a prisoner-plaintiff, finding that the lower court erred in responding to a jury question during deliberations.

Missouri Department of Corrections (MDOC) prisoner Ronnie Conley was raped repeatedly by a cellmate. ?After the first attack, he sought protective custody? from ...

Pennsylvania DNA Act Not Ex Post Facto

The Pennsylvania Supreme Court held that the state?s mandatory DNA collection law does not violate state or federal ex post facto prohibitions. The court upheld application of the law to one defendant, finding that she was convicted of a predicate offense. It reversed with respect to another defendant, however ...

Guards Settle “Sick Building” Claim at Florida Jail for $495,000

Guards Settle "Sick Building" Claim at Florida Jail for $495,000

A year after John Hauser began working at Florida's Volusia County Jail in 1991, he began getting sick. He wasn't alone. In 2003, over one-third of the jail's 300-plus employees were on workers' compensation, citing respiratory ...

New Investigative Solution by LexisTracks Sex Offenders, Wherever They Are

LexisNexis, an information industry leader, has created a new advanced investigation solution to track and locate sex offenders. The solution is being touted as a tool for law enforcement to use when a child is abducted. There are over 600,000 sex offenders in the United States, and 100,000 ...

Illinois Parole Board Pays Nearly $11,000 in Attorney Fees, Can Only Charge Reasonable Postage and Copying Costs

On February 7, 2007, the Appellate Court of Illinois ruled that because the Illinois parole board had wrongfully withheld documents and charged outrageous fees for copies, it was liable for attorney fees and costs under the state?s Freedom of Information Act (FOIA).

In 2002 attorney Alan Mills requested copies ...

Forced Work in Dangerous Washington Prison Job Conditions States Eighth Amendment Claim

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals held that known dangerous prison working conditions can give rise to an Eighth Amendment cruel and unusual punishment claim, even where the prisoner ?volunteered? for the job. The court also held that the supervising prison official was not ...

CCA Fined for Florida Jail Escape; County Commission Poised to Impose More Fines

After a series of escapes, prisoner suicides and thefts by employees over the past year, Corrections Corporation of America (CCA) promised it would take action to prevent similar incidents at Florida?s Hernando County Jail (HCJ). The pledge was made in a successful attempt by CCA to hold onto its ...

California: Disciplinary Conviction Upheld Where Petitioner Argued Only Violation of Constitutional Rights, Not State Law Rights

Strictly construing the U.S. Supreme Court's "some evidence" rule, the California Court of Appeal held that where one cellmate had secreted contraband razor blades in his cell property, his cellmate could be infracted for them as well.

Richard Zepeda, incarcerated at Calipatria State Prison, petitioned the Imperial County ...

Bivens Claims Against Private Prison Employees May Fail When Other Remedies Available

In an evenly divided en banc rehearing, the United States Court of Appeals for the Tenth Circuit was unable to decide whether a Bivens action is available against employees of a privately?operated prison.

In 2001, Cornelius E. Peoples, a federal pretrial detainee, was held at a Leavenworth, Kansas facility ...

Fulton County Jail Consents to Improve Dismal Conditions

The Fulton County Jail (FCJ) has entered into an agreement to correct the “dismal environmental conditions and poor maintenance” at the facility. A Georgia federal district court approved a consent order on February 7, 2006 to solidify the badly needed changes.

The FCJ comprises three facilities, holding 2,250, 200 ...

California Sexual Predator Commitment Requires Trial; Cannot be Based on Civil Discovery Admissions

The California Court of Appeal, District 4, held that the civil commitment of sexual predators (Cal. Welfare and Institutions Code § 6600 et seq.) cannot be obtained upon admissions propounded under civil discovery rules. To do so, the court held, would deprive the state of its burden to prove its case ...

Collection-Rate of Appellate Costs Taxed to Prisoner Reduced to Rate for PLRA Filing-Fees

by John E. Dannenberg

The Sixth Circuit U.S. Court of Appeals held that the payment of $1,619 in costs owed to Michigan state by an unsuccessful prisoner litigator could not be deducted from his prison trust account at a rate faster than that approved for collecting unpaid Prison ...

Evidentiary Hearing Ordered For AEDPA Equitable Tolling Claim Arising From Transfer to Out-Of-State Prison

The Ninth Circuit U.S. Court of Appeals ordered the U.S. District Court (D. Ore.) to conduct an evidentiary hearing to determine if ample facts supported two Oregon state prisoners? claims that their involuntary transfers to Arizona prisons amounted to ?extraordinary circumstances? that entitled them to equitable tolling of ...

Direct Contempt of U.S. Court Must Be in Court’s Presence; Conviction Reversed

Direct Contempt of U.S. Court Must Be in Court's Presence; Conviction Reversed

The Second Circuit U.S. Court of Appeals reversed the direct contempt conviction (18 U.S.C. 401(1)) of the wife of a civil suit plaintiff who had tried (unsuccessfully) to pass influencing papers to ...

Refusal to Give Nitro Tablets to Prisoner With Chest Pain Actionable

by Matthew T. Clarke

The Fifth Circuit court of appeals held that a prisoner with a history of heart trouble who was denied any treatment for his chest pain could sue the nurse who denied him treatment even though he later received treatment and did not allege permanent damage.

John ...

Nevada Psychological Review Panel Hearings Subjected to Open Meeting and Constitutional Due Process Requirements

by Matthew T.Clarke

In two related cases, the Supreme Court of Nevada held that sex offender certification hearings held by the Nevada Psychological Review Panel (PRP) were subject to the Nevada open meeting law (OML) and constitutional due process. The court also held that prisoners who were serving consecutive ...

Wisconsin Over Detention Suit Not Barred by Rooker-Feldman Doctrine

The Seventh Circuit Court of Appeals reversed a lower court?s dismissal of a prisoner?s suit related to a delay in granting time served credits. The court concluded that plaintiff?s claims were not barred by the Rooker-Feldman doctrine.

In 1997, Reginald Burke pleaded no contest to two Wisconsin ...

News in Brief:

Colorado: On November 1, 2006, Lashawn Terrell, 36, a guard at the Denver Reception and Diagnostic Center was arrested and charged with raping a female prisoner at the facility over a five month period whenever the prisoner came to work at the facility.

Florida: On April 10, 2007, Bradley Barbier ...

No Qualified Immunity for Ignoring Heart Condition Leading to Prisoner’s Death

No Qualified Immunity for Ignoring Heart Condition Leading to Prisoner's Death

The Eighth Circuit Court of Appeals upheld a lower court's denial of qualified immunity to jail officials who ignored a detainee's medical distress, causing his death.

Walter Gordon, Jr., was arrested in Washington County, Minnesota for ...

O.K. to Ban Suspicious Indiana Sex Offender from Parks

The Seventh Circuit Court of Appeals held that a registered sex offender who had been observed behaving suspiciously could be permanently banned from a city?s parks.

Robert Brown, a registered sex offender who had a single conviction for child molestation, was observed by park officials in Michigan City, Indiana ...