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Prisoner Education Guide

Prison Legal News: September, 2007

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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 operates U.S. Dept. of Labor Job Corps training programs (the latter constitutes about 2/3 of the company?s business).

Robert ?Dr. Bob? Marquardt, MTC?s founder, said, ?I saw the model MTC is based on when I was eight.? At the time the young Marquardt was accompanying his aunt, who managed a women?s prison in Ohio.

?Those women were all active and learning new skills. The idea is that most people are educable. Some just don?t want to try out of fear of failure.?

Though Dr. Bob, 80, is still active in MTC as the company?s chairman, he has been succeeded by his son, Scott Marquardt, who serves as MTC?s president.

MTC opened its first prison in 1987. It currently operates a dozen facilities with a combined population of 8,400 prisoners in the U.S. and Australia. Dr. Bob has touted an unbelievably ...

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 meet minimal state standards for three years in a row. Burdened with the excessive incarceration of its citizens, the jail's substandard operation has led to tragic results for those in its care. The case of Calvin Mack illustrates one such tragedy.

Mack was a chronic addict who survived on the streets of Houston's Fifth Ward, or, as its residents call it, the Bloody Nickel. Mack was no newcomer to the jail, having been there at least four or five times before he was rearrested on May 30, 2005. Mack also had AIDS.

For unknown reasons Mack was stunned with a Taser during his most recent trip to the county lock-up. Usually this is a non-lethal event, but Mack suffered complications. Fellow prisoners watched in horror as Mack sat on the toilet and began to cough up blood and bleed profusely from his rectum.

Other prisoners called for help ...

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 and overcrowding problems, which in turn force mentally ill prisoners to live in punitive environments that worsen their condition.

According to the National Alliance for the Mentally Ill (NAMI), Florida is in a state of crisis, with 23 percent of prisoners held in county and city jails having a mental disorder. The actual number may be higher. Anywhere from 70,000 to 90,000 people with mental problems are arrested in Florida each year.

Despite that fact, Florida ranked 48th nationwide in per capita spending for mental health treatment. As with all crises, this one did not occur overnight. In fact, it is the culmination of policies implemented in the 1950?s to "deinstitutionalize" the mentally ill by closing psychiatric hospitals and discontinuing state-paid treatment and care.

Many mentally ill defendants are found incompetent to stand trial, which has caused a serious dilemma for Florida's Department of Children and ...

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? rights struggle.

On July 24, 2007, Harmon Wray, 60, died of a massive brain hemorrhage at a hospital in Nashville, Tennessee. Harmon was one of PLN?s earliest subscribers back in the 1990s. We corresponded off and on over the years and I finally had the privilege of meeting Harmon in person in November, 2006, while we were both attending a conference in New Mexico. Harmon was no fair weather activist. Dedicated to the cause of civil rights since 1968 after attending divinity school, Harmon became an early advocate and supporter of prisoners? rights. He published books and articles, marched, organized, and advocated for prisoners for almost 40 years. He was arrested during an anti-death penalty demonstration at the Tennessee governor?s mansion in 2000.

Harmon was a man of quiet dignity and strength and was a pleasure to know and work with. He lived a life of service to ...

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 and politics.

Every Friday afternoon, after she gets out of nursing school, Carole Santos hits the bank. There, she gets two rolls of quarters and 20 singles, which she divides in two, 10 for Saturday and 10 for Sunday. By 9 p.m., she?s nodding off to sleep, but she?ll be up before the Lompoc, California, sun to prepare for the big day ahead of her.

At 6:30 a.m., she packs her money, driver?s license, and a pen into a clear zippered bag and begins her beauty ritual. ?During the week, I don?t dress up or spend much time with makeup and hairstyle,? she says, ?but weekends are for my husband, so I always spend that extra time.?

Carole?s husband of four years, a childhood friend, is in the nineteenth year of a 45-year prison term for cocaine distribution, spending the better part ...

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 of an investigation that cross-correlated public employee payroll records and criminal records, which revealed that over 1,800 government workers had formerly been convicted of a felony. This included all types of public employees, ranging from sanitation workers to teachers. The report noted that while there is a prohibition against hiring public school teachers with certain prior felonies, such as drug dealing, there is no similar ban on hiring ex-offenders generally for state, county and local government positions.

Even the hiring practices of the Department of Education had loopholes which did not catch some teachers and other school employees who had been convicted of felonies after the initial criminal background check upon hiring. Gannett found six teachers who had serious felony convictions and an assistant principal who had been convicted of illegally carrying a gun. Five other teachers had been hired despite having criminal records.

The highest standards of scrutiny ...

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.?

The State Auditor recommended that the Colorado Department of Corrections (CDOC) investigate Renfrow and possibly turn the matter over to the district attorney for prosecution. The audit also suggested that the CDOC strengthen its safeguards for ensuring compliance with codes of ethics and conduct, and develop a strategic plan to address Colorado?s prison overcrowding crisis.

While the State Auditor failed to identify Renfrow by name, referring instead to a ?former senior-level employee,? State Representative Liane ?Buffie? McFadyen identified Renfrow as the employee in question. McFadyen, a long-time foe of prison privatization, had requested the audit. She characterized Renfrow?s conduct as a ?clear conflict of interest.?

In August 2005, Renfrow incorporated a prison consulting business with the Colorado Secretary of State. He began operating the business as early as November 2005 while on a combination of annual, sick and holiday leave from his position at the CDOC. Renfrow retired ...

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.Ct. 910 (2007) [see: PLN, May 2007, p.36], the Sixth Circuit granted a prisoner?s Fed.R.Civ.P. 60(b)(1) motion to abate the dismissal of his complaint below for having failed to affirmatively plead exhaustion.

Michigan prisoner Jeremy Okoro had sued prison authorities in pro per alleging violation of his constitutional rights related to a prison policy declaring court documents to be contraband and requiring their immediate destruction. His case was dismissed without prejudice in the U.S. District Court (E.D. Mich.) for his failure to expressly plead exhaustion of administrative remedies. His Rule 60(b)(1) motion to correct this error of law was denied and he appealed.

In the meantime, the U.S. Supreme Court decided Jones, which expressly held that failure to plead exhaustion is not grounds for dismissal, but must instead result in a remand. Accordingly, the Sixth Circuit reversed and ...

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, abuse of prisoners had become part of the department's culture under former Secretary James Crosby, who himself was sentenced to eight years in prison on bribery charges in April 2007.
The FDOC's abusive culture has even condoned murder, as when Florida death row prisoner Frank Valdes was brutally killed by guards who were later acquitted at trial.[See: PLN, Aug. 2002, p.12].

Retaliation for filing grievances or lawsuits is commonplace at FDOC facilities. Normally, the retaliation takes the form of a punitive job change or transfer to another prison; the latter punishment is termed "diesel therapy" because it involves riding numerous prison buses.

Charles Gundlah, a Vermont prisoner housed in Florida under the Interstate Corrections Compact, exhibited no fear of retaliation. He has filed over 250 grievances during his incarceration within the FDOC since 1998.

For unknown reasons, Gundlah was housed in a confinement unit at HCI ...

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 and civil rights. His suspension raises the specter that he was taking advantage of those "who are usually of modest means, education, and sophistication, and therefore are among the law's most vulnerable," the Court stated.

Ironically, Farmer was formerly incarcerated himself; he was convicted in 1974, at the age of 16, in connection with two murders, of a policeman and security guard during a bank robbery, and served 18 years in prison.

Farmer's suspension followed a finding of guilt on two counts. First, the family of Charles Martin had consulted Farmer about appealing Martin's convictions for aggravated murder, attempted aggravated murder, aggravated robbery and rape. During consultations, Farmer assured Martin's family that he definitely would be able to secure Martin's release.

He said he would accomplish this by filing an intensive appellate brief. That would require withdrawing a previous attorney's brief, which Farmer stated ...

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 sentences.

PLN has previously reported on the out-of-control, "free-for-all" atmosphere that reigned at FCCC. That article, published last year, detailed incidents of FCCC employees selling drugs, delivering contraband to facility residents, having sex with residents, and allowing residents to do as they pleased so long as they were "happy." [See: PLN, Nov. 2006, p.13].

Meanwhile, little treatment was being providing to the then 484 resident sex offenders. In fact, as of May 2005, only 35 percent of the residents were even enrolled in sex offender therapy programs. During Liberty's eight-year term of managing FCCC, only one resident obtained a recommendation from company staff that he should be released.

FCCC was ostensibly created to treat sex offenders after they were released from prison. From its establishment in 1998 under the Jimmy Ryce Act (FS 394.910), the facility was operated by Liberty Behavioral Health Corporation under an annual contract ...

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 enforcing the law in 2001 and a total exceeding $5 million has been collected from prisoners since then, but collections the first few years were inefficient. Sophisticated computer programs that match prisoners? names to legal judgments, lottery winners and inheriting heirs caused collections to soar from $145,000 in 2002 to $1.9 million in 2006.

For example, state prisoner Kevin King, who won a $375,000 judgment against guards who administered a retaliatory beating, paid the state $65,000 in recovery costs. State prisoner Eric Hamm paid $626,000 of his $1.1 million award from a lawsuit against the city of New Haven over his false arrest on murder charges. [Editor?s note: Neither appears to have contested the seizures under the supremacy clause which holds that the state cannot seize judgements from federal litigation. See: Hankins v. Finnel, 964 F. 2d 853 (8th Cir. 1992) and Wright ...

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 court in his criminal case ordered $1,517.25 be taken from his trust fund account---by judicial fiat--to recover court costs from his criminal trial. About a decade earlier, Abdullah had been convicted and sentenced to 60 years in prison and a $10,000 fine. In Abdullah?s original judgment of conviction, the section on ?costs? was left blank.
The amount ordered reimbursed in the trial court?s order was based on the district clerk?s summary of costs.

On appeal, Abdullah raised the issues of lack of notice and lack of due process. The court of appeals agreed that he had been accorded neither.

Section 501.04(e), Texas Government Code, allows the prison system to remove funds from a prisoner?s trust fund account after receiving an order from a court to pay child support, restitution, court fees, fines and other ?court order, judgment or writ.? Section 14 ...

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 an address acceptable pursuant to Section 948.30(1)(6), Florida Statute (2005), at the time of a scheduled release from incarceration.? PLN reported the circuit court order. [See: PLN, Jan. 2007, p. 36].

FDOC?s policy was to violate, upon release, all sex offenders who failed to provide an address that was not ?within 1,000 feet of a school, day care center, park, playground, or other place where children regularly congregate,? maintaining that homelessness was not an excuse for noncompliance. The Fifth District Court said it was ?sympathetic? to the circuit court?s frustration with FDOC?s actions and to the notion of essential fairness in the lower court?s order.

Nonetheless, several procedural issues required the appellate court to reverse. ?First, the DOC was not a party to the proceedings and, evidently, no notice was given to DOC that such an order was within the contemplation of ...

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.

Eric Maiwald, a Texas state prisoner, was served with a petition initiated by his former girlfriend, Stacey Moon. Moon sought termination on four grounds based on Texas Family Code 161.001(C), (F), (H) and (Q): (1) knowingly engaging in criminal conduct resulting in incarceration and inability to care for the child for "not less than two years from the date of filing the petition," Subsection Q; (2) failure to support the child within the parent's ability for one year ending within six months of the date the petition is filed, Subsection F; (3) leaving the child in the possession of another without providing adequate support of the child and remaining away for at least six months, Subsection C; and (4) voluntarily and with knowledge of the pregnancy abandoning the mother beginning at the time of her pregnancy, Subsection H. The trial court terminated Maiwald's parental rights, finding ...

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 must be closely tracked under responsible supervision by related administrations,? he said.

Illegal organ trafficking has long been a hallmark of China. Most recently, however, the government came under scrutiny for its use of the newly developed ?death vans.?

Death vans are equipped with lethal injection equipment which includes everything from retractable gurneys to state-of-the-art medical supplies. Officials now acknowledge that the use of death vans is often just a more efficient way of harvesting organs illegally. However, since the deadly chemicals used to carry out lethal injections make organs unusable for transplants, the more likely explanation is that prisoners are having their organs removed prior to being put to death.

Death van manufacturers say that the concept of mobile executions also provides a community service since it saves poor communities from the expense of constructing execution facilities. Old fashioned executions take place in public by an executioner firing a ...

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 the state?s Global Positioning Satellite (GPS) sex offender tracking program, and are purging sex offenders from online social networking sites.

As of January 2007, Michigan residents can sign up for email notification when changes are made to the state?s online sex offender registry. Under the program ? timed to coincide with a state law that requires all sex offenders to register annually between January 1 and January 15 ? members of the public can receive notice of residency changes in up to six zip codes. Persons convicted of misdemeanor sex offenses, such as indecent exposure, must register every year; those convicted of felony sex offenses have to register quarterly.

Further expanding the digital frontiers of sex offender restrictions, on June 21, 2007 state Attorney General Mike Cox announced he had subpoenaed a list of 200 Michigan sex offenders who have accounts on MySpace ? an internet site popular with children and ...

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 the U.S. Department of Labor said the company violated federal affirmative action law by disproportionately rejecting non-Hispanic job applicants who sought employment at the prison during a two-year period ending in March 2005.

Under the settlement, CCA will hire 16 applicants who were previously rejected. The company will also pay $945.32 each to 464 former job applicants, for a total payout of $438,626.

CCA further promised to immediately cease its discriminatory hiring practices and implement self-monitoring procedures to ensure it maintains legal hiring standards, the Department of Labor said. The Florence facility faces a future audit by federal investigators to verify compliance.

The Department of Labor routinely audits companies that conduct business with the federal government. "We'll go in and we'll look at who applied for the jobs and who was hired," said Department spokeswoman Deanne Amaden. "In this case, what we found was a ...

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 felons convicted under the District of Columbia (DC) code from the city to the federal government." Parole decisions were transferred from the DC Board of Parole (Board) to the United States Parole Commission (Commission).

The Board's regulations "placed significant weight on post-incarceration behavior, including rehabilitative accomplishments, in making release determinations." The Commission adopted new federal regulations to replace the Board's regulations. The new regulations focused exclusively on pre-incarceration factors, de-emphasizing any rehabilitative results during incarceration.

Thaddeus A. Fletcher was convicted of a felony in 1980 and subsequently released on parole by the Board. In 1998, Fletcher was convicted of a new felony in Maryland and his DC parole was revoked. When Fletcher was considered for re-parole in 2000, the Commission applied the new regulations and "declined to consider his post-incarceration behavior, such as rehabilitative accomplishments, in weighing his entitlement to re-parole."

Fletcher filed a federal habeas corpus petition ...

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 other locations in Maryland. MHC?s prison hospital will remain open.

Built in 1878 and located in Jessup, MHC had become increasingly dangerous. In just the past year, three prisoners and a guard were murdered inside its cramped and crumbling walls ? where cells are as small as 45 square feet ? while other guards and prisoners have been seriously wounded in multiple stabbings and other assaults. PLN has reported extensively on MHC and other violence-wracked Maryland lockups. [See: PLN, February 2007, p.1; August 2006, p.20; and August 2005, p.1].

Though for years prisoners have been killed at MHC, the murder of prison guard David McGuinn, 42, in July 2006 brought national attention to the aging institution and prompted calls for its closure. McGuinn was allegedly stabbed to death by two prisoners who escaped from their maximum-security cells by jamming the locking mechanisms with tiny bars of soap.

?We ...

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 their contracts be entered into a computerized DGS library for posting on the internet. The release of CDCR?s database, even after four years? delay, did not come easily. The Associated Press complained that the state Justice Department had shielded hundreds of contracts as ?confidential.? That cover-up has been since scaled back under threat by lawmakers to withhold the agency?s money. Even the state Transportation Department used the ?confidential? label without DGS?s permission.

DGS warned state agencies in 2003 that they could lose authority to purchase goods if they failed to post all contracts and purchases over $5,000. But DGS never sanctioned CDCR for noncompliance. Even so, CDCR is withholding much data. 2,600 contracts worth $433 million are being kept confidential by the federally appointed medical receiver, Robert Sillen, under a legal exemption to ?safeguard competitive bidding practices.?
Sillen?s spokeswoman, Rachel Kagan, said that CDCR ...

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 care officials have resigned over the incident.

MDI had secured a questionable $26 million no-bid contract with the California Department of Corrections and Rehabilitation (CDCR) in August 2006 to provide outpatient scheduling of prisoners with medical specialists, an area of CDCR?s healthcare processing that had been chronically deficient. It was later reported that state officials who had reviewed MDI?s contract found it was overpriced and should have been competitively bid; they also questioned whether the company needed to have a medical license.

Regardless, MDI began work before the contract was finalized and was told to bill the state for services performed. The receiver?s office wasn?t notified of the arrangement.

Sillen?s chief of staff, John Hagar, learned about the contract and determined that part of MDI?s protocol was to only schedule appointments with specialists if the projected cost did not exceed $5,000. Thus, a ...

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 race.

This case was originally filed in February 1996, alleging Washington?s felon disenfranchisement and restoration of civil rights schemes resulted in the denial of voting rights for racial minorities in violation of the Voting Rights Act (VRA), 42 U.S.C. § 1973. The district court initially applied a novel "by itself" causation standard in granting summary judgment to the defendants.

On appeal, the Ninth Circuit remanded for application of the totality of the circumstances test. See: Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003), rehearing denied, 359 F.3d 1116 (2004). [PLN, Nov. 2004, p.34].

Upon remand, the district court held that the plaintiffs "must prove, by preponderance of the evidence, that the totality of the circumstances supports the conclusion that 'members' of protected minorities 'have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their ...

§ 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 prisoners who alleged that their repeated denials of parole were the result of an unconstitutional political policy orchestrated by the Board and co-defendant Governor George Pataki. The denial order permitted the case to proceed on the prisoners' due process, equal protection and ex post facto claims. The court is treating the case as a class action for all parole-eligible New York state A-1 violent felony prisoners.

Peter Graziano and nine other named prisoners sued the Board and Governor to contest not the outcome of their parole hearings, but the procedures used by the Board. This avenue of prospectively challenging unfair parole policies was recently approved by the U.S. Supreme Court in Wilkinson v. Dotson, 544 U.S. 74 (2005). The plaintiffs alleged that a politically-motivated predisposition to deny paroles rendered the hearing process arbitrary and capricious, in violation of due process of law; treated them dissimilarly with respect to ...

$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 through Spann protested that the pills weren?t his.

Once Bell realized her mistake, she ordered Spann to return the pills, but he had already swallowed them. ?Bell did not immediately take Spann for medical attention, however, or tell her supervisors of the incident.?

Soon after taking the pills ?Spann felt his legs collapse and the room spin, he pushed the emergency call button in his cell, hit his head on the toilet and fainted. He awoke in pain in another room with a sore throat and dried blood on the back of his head.? Three hours after taking the pills Spann was admitted to the infirmary for observation.? A doctor told him that he had been lying unconscious in his cell for three hours. Spann complained that he could barely talk or see, and that there was a knot on the back of his head; the doctor told Spann ...

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 Reed Very his housing unit guard. Very denied that request and at least two later protective custody requests, from Conley.

Conley brought a failure-to-protect action against Very in federal court. The case proceeded to trial. During deliberations, the jury asked the court if there had been past complaints against Very for denying protective custody complaints. ?Over Conley?s objection, the court instructed the jury that ?no evidence was presented? regarding past complaints against Very for denying protective custody requests.? Less than 40 minutes later, the jury returned a verdict in favor of Very. The court subsequently denied Conley?s motion for a new trial.

The Eighth Circuit noted that the parties agreed that evidence of past complaints against Very was irrelevant. It then found that the court?s response to the jury ?implied that such evidence would have been relevant to the case. There is a reasonable likelihood, therefore, that ...

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, finding that he was not convicted of a predicate offense.

In 2005, Misty Derk was convicted of theft, which was graded as a third degree felony under Pennsylvania law. She was then required to submit a DNA sample to be stored in a DNA database, and to pay a mandatory fee of $250 under 44 Pa. C.S.A. § 2301-2336 (DNA Act).

In 2005, Kurt Bingaman was also convicted of theft, but his two convictions were graded as first and second degree misdemeanors. He was also required to submit a DNA sample and pay $250 under the DNA act.

Derk and Bingaman appealed, challenging application of the DNA Act, and their appeals were consolidated. Initially, the Superior Court noted that the DNA Act applies to all felony convictions. Therefore, the court rejected Derk?s claim that she did not commit a predicate offense. Since Bingaman?s convictions were graded as ...

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 of them fail to register as required by law.

California, Florida, Michigan, and Texas have the most sex offenders. LexisNexis touts its system, which was launched in April 2007, as a resource to find absconders or those sex offenders in an area a child is abducted.

?When a child is abducted,? says Jim Peck, CEO of LexisNexis Risk and Information Analytics Group, ?time is of the essence. In 75 percent of the cases where the child is killed, it happens within three hours of the abduction, and 40 percent of the time kids are abducted they are murdered.? Back in the real world though, most child abductions 203,900 in 1999, the last year for which statistics are available; are carried out by parents or family members of the children and only around 100 are committed by strangers.

Law enforcement need only enter the zip code of the area a ...

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 entitled to qualified immunity after he ordered the prisoner to continue working on the known dangerously defective prison equipment.

Steven Morgan was incarcerated at Monroe Correctional Complex in Washington, where every prisoner is required by law to work. However, one can volunteer for ?choice? higher-paying jobs, and Morgan had thus gained a job in the prison print shop. In 2003, Morgan told his supervisor, Tom Canady, that his printing press was seriously malfunctioning, having bucked and nearly torn off two of his fingers. Canady, anxious to complete a print job, nonetheless ordered Morgan to continue the press run but to ?be very careful.? Shortly thereafter the press caught Morgan?s hand and tore off his right thumb. He sued Canady and other prison officials under 42 U.S.C. § 1983, claiming Eighth Amendment violations for cruel and unusual punishment and Fourteenth Amendment violations for compelling him to work under dangerous ...

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 $10 million annual contract to operate the facility. [See: PLN, July 2006, p.1].

Despite that promise another prisoner escaped from HCJ on February 26, 2007. Kenneth Ferris, who absconded from the jail, was later apprehended by sheriff?s deputies; CCA Lt. Mary Mills, who had left Ferris? cell door unlocked, was fired. The escape resulted from the same cause as many of the previous problems at HCJ ? inadequate staff to provide security. This was one of the issues that CCA had promised the Hernando County Commission it would address and solve.

The Commission?s response to Ferris? escape was to levy a $23,000 fine against CCA. Yet there was no talk about canceling the company?s lucrative contract. Instead the Commission members proposed a band-aid solution to the jail?s staffing problem: They suggested installing a perimeter fence that will cost around $300,000. The Commission planned to ...

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 Superior Court to reverse his disciplinary conviction (with 360 days credit loss) for implicitly violating prison regulations that ban the possession of weapons, where the contraband was admittedly his cellmate's and he had no knowledge of it.

The court abated the disciplinary conviction after finding that "the evidence shows [Zepeda] had no control over what contraband may be in possession of his cellmate and no evidence was presented that [Zepeda] possessed any knowledge of the weapon in question."

On appeal by Calipatria's Warden, the appellate court reviewed the ruling de novo. The court noted that Zepeda only claimed that the disciplinary finding violated his U.S. Constitutional due process rights under Superintendent v. Hill (1985) 472 U.S. 445, 455. Like in Hill, Zepeda did not claim that the disciplinary board's findings failed to meet state evidentiary standards [see: Cal. Penal Code § 2932, permitting revocation of ...

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 operated by Corrections Corporation of America. After being released into the general population, Peoples filed formal and informal grievances asking to be moved to a different pod due to fears that the Mexican Mafia would assault him. He was not moved and was subsequently mauled ?with padlocks, chains, and full soda cans.? Peoples was assigned to administrative segregation for a total of 13 months during his stay at Leavenworth. He did not receive written notice of the reasons for his segregation, nor did he receive a segregation hearing for five months. While segregated Peoples had no law library access but could receive case law if he had the exact citations. Peoples believed his legal phone calls were unconstitutionally monitored.

Seeking compensatory and punitive damages for the assault, Peoples brought a pro se lawsuit in the United States District Court for the District of Kansas. The Court construed the suit as ...

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 and 100 prisoners. Each is badly overcrowded. The Court appointed an expert, Dr. Robert B. Greifinger of Dobbs Ferry, New York to tour FCJ and issue a report on conditions with recommendations to correct the problems found.

What Dr. Greifinger found frightened him. “Extremely tense. Each of my senses raising an alarm. Scary. With almost two decades of visiting inmate housing units, it was the first time that I declined to go in,” wrote Dr. Greifinger in a May 31, 2004 report. What Dr. Greifinger found on the fifth floor of FCJ was nothing that “came as a surprise to anyone” associated with this litigation.

The fifth floor unit was built for 108, or 200 double-bunked, prisoners. On Dr. Greifinger’s visit it held 59 on the North side, with 18 on the floor. The South side held 326, but had only 12 showers. While Dr.Greifinger’s May visit was ...

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 beyond a reasonable doubt to a unanimous jury, in violation of the due process liberty interests of the defendant.

The San Bernardino District Attorney filed a petition under § 6600 to have Richard Murillo civilly committed after he had been paroled to a mental hospital following his prison sentence for corporal injury on a spouse or child. The D.A. served Murillo with a set of 14 requests for admissions regarding prior molestation convictions, descriptions of his lewd acts, whether they constituted the requisite legal conduct required to commit him (§ 6600.1), and whether his mental disorder predisposed him to engage in future sexually violent predatory criminal behavior. In other words, his liberty interest in having these facts proved to a jury were being demanded of him in discovery, circumventing his right to an adversarial trial and obviating the need for the D.A. to prove anything.

Murillo objected and filed ...

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 Litigation Reform Act (PLRA) filing fees.

McComb Correctional Center prisoner Christopher Skinner, pro se, sued four state employees for garnishing his prison wages to pay off court-awarded costs stemming from a previous unsuccessful 42 U.S.C. § 1983 lawsuit against the prison. Skinner complained in this case that (1) the language of the PLRA trumped Federal Rules of Appellate Procedure (FRAP) 39, so as to disallow the $1,619 (prevailing defendants?) cost award; (2) seizing 100% of his monthly prison trust account balance to collect those costs violated the PLRA; and (3) he was owed both the return of past overcharges and damages against Michigan officials. The U.S. District Court (E.D. Mich.) denied his claims, and he appealed.

The Sixth Circuit reviewed the relevant statutes, FRAP 39 and 28 U.S.C. § 1915(f) [PLRA], to determine how costs taxed against a losing prisoner litigant should be handled ...

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 the one-year AEDPA time limitation (28 U.S.C. § 2254(d)).

Albert Roy and Phillip Kephart were Oregon state prisoners whose federal habeas corpus petitions challenging their convictions had been dismissed by the U.S. District (D. Ore.) court as untimely under the AEDPA (Anti-Terrorism and Effective Death Penalty Act). They filed additional habeas petitions in the U.S. District Court (D. Ariz.) when they found themselves transferred to a prison in Florence, Arizona which they claimed had such a woefully deficient law library that it prevented them from pursuing challenges to their convictions. Both Roy and Kephart were transferred back to Oregon after about four months, but they claimed that this period should be tolled (i.e., not debited) from their one-year AEDPA filing limit because the lack of an adequate law library was a debilitating ?extraordinary circumstance? beyond their control.

Under established Ninth Circuit case law, the one-year ...

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 jurors dining in a cafeteria ten floors below the courtroom. The district court had held that the dining room was sufficiently within the sphere of the courtroom to satisfy a "direct" contempt charge.

Shirley Rangolan and her husband had successfully pursued civil damages for his beating by other prisoners while confined in the Nassau County Jail. In this follow-up trial, liability for the damages were to be apportioned among various defendants. Jurors were instructed not to talk to the parties, and vice versa. Nonetheless, after deliberations had commenced, a juror complained that Shirley Rangolan approached him in the courthouse cafeteria, placed a stack of papers in front of him, and said, "I think you should read this." The top document was entitled "Violations of the Nassau County Jail in Hempstead." After seeing that title the juror returned the papers, saying, "I don't think I should be reading this."

Upon ...

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 Edward Easter, a Texas state prisoner, filed suit under 42 U.S.C. § 1983 after Gayla Powell, a prison nurse, refused to treat him for chest pain. Easter had a history of serious heart problems when he was taken to the prison infirmary suffering from chest pain and vomiting. A prison doctor prescribed oxygen and nitroglycerin with the instruction to ?dissolve 1 tablet under tongue every 5 minutes as needed for chest pain; after 3 tablets or 15 minutes call doctor if no relief has been obtained.? Fifteen minutes later, Easter felt better and returned to his cell.

Two days later, Easter again reported to the infirmary after experiencing twenty minutes of severe chest pain. Powell referred Easter to the prison pharmacy to have his nitroglycerin prescription refilled. However, the pharmacy was closed and, when he returned to the infirmary to request nitroglycerin, Powell accused him of being argumentative and ...

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 sentences and were being considered for parole from one sentence into another without the possibility of immediate release were not required to be certified before being granted parole.

Robert Leslie Stockmeier is a Nevada state prisoner who is serving two consecutive life sentences for sex offenses. In 2002 he became eligible to parole from one sentence into the other.

Nevada Revised Statutes (NRS) 213.1214 requires that sex offenders receive certification from the PRP that they are not a high risk to reoffend before they are released on parole. In 2002, the PRP gave Stockmeier notice of a hearing on his mental state. At the hearing, they met in closed session to hear the statement of Stockmeier?s victim. In addition to the details about the trauma and negative affect on her life the crime had, the victim described other instances of abuse which had not been previously alleged and ...

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 criminal offenses and was sentenced to 5- and 2-years, respectively. The sentences were imposed consecutively to one another, and to a separate parole violation sanction. In May 1999, the court amended its order so the 1997 sentences would run concurrently.

Burke then filed various state court actions seeking credit for the 8 months he spent in jail between his July 12, 1996 arrest and March 20, 1997 sentencing. The state court rejected Burke?s various attempts to obtain time served credits.

Burke also sought the time served credits from the Wisconsin Department of Corrections (DOC). After nearly two years, DOC granted Burke 8 months and 8 days of jail credit. Burke then brought an action in federal court, claiming that ?he was detained ? longer than he should have been due to the ?deliberate indifference and delay? of DOC officials in granting him the jail credit.??

The district court granted Defendants ...

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, 23, went to the Martin County jail to announce he was going to serve a weekend sentence. Jail guards told him he was not scheduled to serve the sentence and Barbier came to the jail anyways and was ?loud and rude?. He left after jail guards threatened to lock him up. Barbier then broke into a deputy?s van in the jail parking lot and stole a purse. He was then duly imprisoned.

Florida: On July 24, 2007, Terry Alexander, 20, a Broward county jail prisoner, was convicted in state court of indecent exposure for masturbating while alone in his cell. He was then sentenced to 60 days in jail, consecutive to the ten year sentence he was already serving for armed robbery. In reaching its verdict the jury found that the Broward county jail cell was a ?limited access public place.? Both the Broward and the Miami-Dade jails have ...

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 driving without a license. He was sentenced to 10 days in jail but was released to a hospital for treatment of heart problems after serving five days. He did not return to jail after treatment, and a warrant was issued for him to serve the time remaining on his sentence.

One year later, Gordon returned to the hospital complaining of pain but left without being treated. Gordon called police for a ride home. He was arrested on the outstanding warrant and returned to jail.

"He immediately complained of pain and informed?staff that he had pneumonia, congestive heart failure, high blood pressure and diabetes."

The jail nurse "placed Gordon on 'high observation' for 24 hours."

At 11 p.m., Gordon was taken to his cell. He asked guards Lois Arends and Vincent Deschene, for help climbing the stairs. They refused and he climbed the stairs.

"Between 11:55 p.m ...

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?s Washington Park once or twice a day. Brown engaged in such activities as sitting in his RV watching park patrons on a beach and driving slowly past the park?s children?s camp while watching the children. The city attorney told Brown he was banned from the park. The Michigan City Parks and Recreation Board (MCPRB) then sent Brown a letter notifying him of a hearing on the issue to be held inside the park he was banned from entering. The MCPRB banned Brown and all other registered sex offenders (RSOs) from the park.

Brown sued in federal district court under § 1983, alleging the ban violated his and other RSOs? due process rights, and moved for class certification. The MCPRB then changed the ban to include only Brown. In response, Brown withdrew the motion for class certification.

The district court granted the city summary judgment on the basis of ...


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