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Prisoner Education Guide

Prison Legal News: October, 2008

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Volume 19, Number 10

In this issue:

  1. Gay and Lesbian Prisoners: Recent Developments and a Call for More Research (p 1)
  2. Washington State Crime Lab Chief Resigns (p 8)
  3. From the Editor (p 8)
  4. Over 60% of Oregon Prisoner Suicides Linked to Mental Illness, Isolation (p 10)
  5. Trifecta for Michigan DOC: Three Reports Find Deficient Prison Medical Care (p 16)
  6. Fondled Hawaiian Transexual Prisoner Awarded $817,500 in Damages and Attorney Fees (p 18)
  7. Virginia Parole Rate Plummets Despite Thousands of Eligible Parolees (p 19)
  8. Houston District Attorney Caught in E-mail Scandal, Resigns, Held in Contempt (p 20)
  9. Courts Find Ohio Adam Walsh Act Unconstitutional (p 23)
  10. NY DOC’s Former 60% Prisoner Phone Call Kickback Scheme Did Not Violate Prisoners’ Families’ Constitutional Rights (p 24)
  11. Prison Legal News Prevails in Tennessee Public Records Suit Against CCA (p 24)
  12. TASER International’s Stock Shocked By $6.2 Million Damages Award (p 25)
  13. Teeth Extraction Policy for CA Women Prisoners Rescinded (p 26)
  14. Michigan Jail Pays $145,000 for Vindictively Exhibiting Naked Detainees in Segregation Cell (p 26)
  15. Harris County, Texas Sends 600 Jail Prisoners to Private Pen in Louisiana (p 28)
  16. Jail Prisoners Get Rapid HIV Tests (p 28)
  17. Federal Prisoner May Not be Held Indefinitely in Punitive Housing Pending Investigation of Infraction (p 29)
  18. $204,856 in Attorney’s Fees and Costs Awarded in Nebraska Kosher Diet and Muslim Prayer Case (p 30)
  19. Excessive Force Suit Against Illinois Guards Must be Retried, Allowing Evidence of Guards’ Actions (p 30)
  20. Bill Introduced to Exempt Wrongfully Convicted from Federal Income Taxes (p 31)
  21. States Expand Registration Laws to Include Drug Offenses (p 32)
  22. Alabama Jail Guard Fired, Convicted, Held Civilly Liable in Prisoner’s Assault (p 32)
  23. Montana DOC Employees Disciplined for E-mail Abuse (p 33)
  24. Segregated Massachusetts Nation of Islam Prisoners Entitled to Halal Menu and Jum’ah Prayers; $237,299.25 in Attorney Fees Awarded (p 34)
  25. PHS Wins Quadriplegic Prisoner’s Negligence Suit, Jail Settles for $100,000 (p 34)
  26. Federal Prisoner in State Jail Custody Illegally Denied State Court Name Change Petition (p 35)
  27. U.N. Committee Against Torture: Tasering is a “Form of Torture” (p 36)
  28. 71-Year-Old Veteran Paid $185,000 for Rough California Jail Booking Treatment (p 36)
  29. Prior Failure to Register as Sex Offender Does Not Violate Adam Walsh Act (p 38)
  30. Monetary Sanctions Permitted for Milwaukee Jail’s Violation of Consent Decree (p 38)
  31. WA Prisoner Properly Denied Access to Savings Account to Hire Lawyer for Parolability Hearing (p 39)
  32. Sixth Circuit: $4.5 Million Award Upheld Against Michigan DOC Doctor in Dehydration Death of Mentally Ill Prisoner (p 40)
  33. $7,025 Award in Slip and Fall From Ohio Prison Bunk (p 40)
  34. Ten Michigan Lawyers Honored For 8-Year Effort To Win $30 Million Damages For 10 Women Prisoners’ Sexual Abuse By Prison Guards (p 42)
  35. Georgia Inmate Welfare Fund Consent Decree Terminated Under PLRA (p 43)
  36. $45,000 Awarded to Probationer Subject to Overzealous Probation Officer (p 43)
  37. Michigan Federal Court Issues Injunctive Relief for Lifer Parole Hearings (p 44)
  38. $305,021 Awarded to Missouri Prisoner Struck by Tree; State Legislature Takes Note (p 44)
  39. Washington DOC Fires McNeil Island Employee for Prisoner Fund Theft (p 45)
  40. Contempt Order Entered Against Virgin Island’s Prison Mental Health Care (p 46)
  41. $449,000 Settlement in BIA Prisoner’s Fall from Top Bunk in Detox Cell (p 46)
  42. Wyoming Prisoner Receives $350,000 in Failure to Protect Case (p 47)
  43. $1.95 Million for 18 Years Wrongful Imprisonment in North Carolina (p 47)
  44. Indiana Judge Refuses to Send Juveniles to Unsafe Facility (p 48)
  45. New York Mail Rule Disciplinary Conviction Reversed (p 48)
  46. Texas Adds Sex Offender Employment and School Information to Registry (p 49)
  47. Texas Youth Commission Settles Lawsuit with U.S. Dept. of Justice (p 50)
  48. News in Brief: (p 50)
  49. Ice Cream Trucks No Treat for Sex Offenders (p 52)

Gay and Lesbian Prisoners: Recent Developments and a Call for More Research

by Zachary Wolfe, Esq.1

This is an interesting time in the changing legal landscape relating to gay and lesbian prisoners, but public and scholarly attention is lacking. Rights of lesbian, gay, bisexual and transgendered prisoners are often conceived of either in long-established concerns relating to guards’ discrimination or in newly popular attention to the special needs of transgendered prisoners. Although these are important issues, such a focus can lead advocates and courts to overlook the evolving standards (or stagnant policies, despite apparent potential for progress) regarding the rights of gay and lesbian prisoners.

This article discusses three recent legal and social developments that have application in the prison context but are yet to be fully explored there. It begins by examining an area that receives much attention in most every other aspect of society: same-sex marriage and correlative rights. Visitation and other rights are vastly different for gay and lesbian prisoners unless the progress in broader society in this regard is brought to bear upon the prison system. The article next discusses the First Amendment right to access information – perhaps the most traditional of civil liberties that is still overlooked when it comes to prisoners – and notes the special ...

Washington State Crime Lab Chief Resigns

Washington crime lab chief Barry Logan resigned effective March 14, 2008, after judges in three counties roundly criticized the work performed in state laboratories under his supervision.

The fallout mainly stemmed from hundreds of DUI cases that were improperly handled by Ann Marie Gordon during her stint as a manager at the Forensic Laboratory Services Bureau. Gordon falsely claimed to have verified solutions used to ensure the accuracy of DUI tests; when Logan was informed there was a problem with the ethanol-water solution, he assigned Gordon to investigate not realizing that she was the culprit.

Gordon admitted she had certified tests that were not performed, and resigned on July 20, 2007; she did not, however, face perjury charges. The King County prosecutor’s office said there was “little to be accomplished by any criminal prosecution,” claiming the public had “not suffered any harm.”

As a result of Gordon’s conduct, over 100 DUI cases were placed on hold while letters were sent to 130 people whose cases had already been tried, as they now have grounds to challenge the results. “I call it ‘Ann Marie Gordon and the Temple of Perjury,’” remarked Kenneth Fornabai, president of the Washington Foundation for ...

From the Editor

This issue’s cover story on the rights and treatment of gay and lesbian prisoners stems from the dearth of such coverage everywhere else. In February of this year I was a speaker on a panel in Manhattan on the rights of Gay, Lesbian, Bisexual and Transgender prisoners. A few months before this I had received a phone call from a man whose boyfriend is in prison in Georgia. They had had their visit terminated because they held hands during the visit. When they protested and pointed out that heterosexual couples were allowed to hold hands during visits, the prison captain told them they were being disruptive and when asked what gay couples were supposed to do, the captain responded that there were no gay prisoners in Georgia except for his boyfriend. Since Georgia has over 50,000 prisoners I find that difficult to believe. What I find not so difficult to believe though is the dearth of research, articles and litigation surrounding the rights of gay and lesbian prisoners.

To the extent there is litigation, research and media coverage on GLBT prisoners, it tends to focus on transsexual prisoners. A quick Lexis search on the subject disclosed that in ...

Over 60% of Oregon Prisoner Suicides Linked to Mental Illness, Isolation

Over 60% of Oregon Prisoner Suicides Linked to Mental Illness, Isolation

by Mark Wilson

Nathan Bashaw, 21, had a mere 259 days left to serve until his April 1, 2008 release date. He was serving a sentence in the custody of the Oregon Department of Corrections (ODOC) for attempted robbery. But prison life became more than Nathan could bear, and on July 18, 2007 he tied a bed sheet around his neck, attached the other end to a small table in his cell and sat down to die.

Nathan was the 26th Oregon prisoner to commit suicide within the past decade. His was the fourth suicide in 2007, the highest annual total since 1998, when the same number of self-inflicted deaths occurred.

During 2001-2002, ODOC’s suicide rate was nearly double the national average according to a report by the Bureau of Justice Statistics (BJS)1, the research arm of the U.S. Department of Justice. Those findings were based upon data collected under the Death in Custody Reporting Act (Public Law 106-297).2

Suicide is a leading cause of prisoner deaths, ranking third among all prison deaths.3
Nationally, 337 state prisoners committed suicide in 2001-2002, for an average rate ...

Trifecta for Michigan DOC: Three Reports Find Deficient Prison Medical Care

Trifecta for Michigan DOC: Three Reports Find Deficient Prison Medical Care

by David M. Reutter

From the advent of federal oversight of medical services for Michigan prisoners, the focus has been on three Michigan Dept. of Corrections (MDOC) facilities that house the state’s sickest prisoners in close proximity to Duane Waters Hospital in the Jackson area. Health care at those prisons – the Southern Michigan Correctional Facility, the Charles Egeler Reception & Guidance Center and the Parnall Correctional Facility – is provided by a private contractor, Correctional Medical Services (CMS).

Despite federal court monitoring of MDOC health care, which has been ongoing since the mid-1980s, little progress has been made to improve the quality of the care provided. To the contrary things seem to have worsened, which has resulted in egregious examples of medical neglect. Last year PLN reported several preventable deaths and injuries among Michigan prisoners caused by substandard medical care, as well as a court order holding the MDOC in contempt. [See: PLN, May 2007, pp.1, 7].

In an effort to hasten the end of federal court oversight, which is part of a long-standing class-action lawsuit known as the Hadix litigation, the MDOC proposed closing the Southern ...

Fondled Hawaiian Transexual Prisoner Awarded $817,500 in Damages and Attorney Fees

Fondled Hawaiian Transexual Prisoner Awarded $817,500 in Damages and Attorney Fees

by Matt Clarke

On March 18, 2008, Hawaiian First Circuit Court Judge Sabrina S. McKenna awarded a pre-operative transgendered prisoner who had been sexually abused and harassed by a prison guard at the O’ahu Community Correctional Center (OCCC ...

Virginia Parole Rate Plummets Despite Thousands of Eligible Parolees

by John E. Dannenberg

Politics in Virginia have trumped reason when it comes to releasing eligible offenders on parole. Notwithstanding examples of successful reintegration into society after such prisoners are released, political pressure has driven the parole board’s grant rate down from 40% to 5.6%. It also drove previous parole board members into the unemployment lines.

In 2001, the board released prisoners Joseph N. Martin and Floyd R. Honesty. Martin, an insurance agent, had been convicted in 1979 for murdering a client and his fiancée in order to collect on a policy. Both Martin and Honesty are doing well now, seven years later. Nonetheless, their release generated significant negative publicity for state officials from the governor down.

Another parolee, James Albert Steele III, was a failure. Just months after he was paroled in 1990, he murdered a preacher he had befriended. The public relations fallout from that crime sparked the election of a new governor, George Allen, and led to the end of parole in Virginia for crimes committed after 1995.

Later, following the release of Martin and Honesty in 2001, then-Governor Mark Warner asked all of the parole board members to resign and cut the board from ...

Houston District Attorney Caught in E-mail Scandal, Resigns, Held in Contempt

Houston District Attorney Caught in E-mail Scandal, Resigns, Held in Contempt

by Gary Hunter

Racist jokes, sexually explicit photos, love notes to his mistress and evidence of improper political campaigning were found in the e-mail account of former Harris County (Houston, Texas) District Attorney Charles “Chuck” Rosenthal, Jr. Nevertheless, even ...

Courts Find Ohio Adam Walsh Act Unconstitutional

Cuyahoga County Judge Ronald Suster held on May 9, 2008 that Ohio’s Adam Walsh Act violates the retroactivity clause of the Ohio Constitution and is an ex post facto law.

Ohio has maintained a sex offender registry since 1963. The first substantial revisions to the registration law occurred in 1996; under the 1996 amendments, Ohio sex offenders were classified into one of three categories. The first category, sexually oriented offender, encompassed relatively minor sex offenses such as voyeurism. The second two categories, habitual offender and sexual predator, were reserved for more serious crimes.

Sex offenders were subject to registration and verification under the law. The statute required offenders to register with the county sheriff, providing at a minimum a current home and business address, plus a photograph. The frequency of verification
requirements depended on the offender’s classification. Sexually oriented offenders were required to verify their current home address annually for ten years, habitual offenders for twenty years, and sexual predators for life. Sexual predators, however, could request a hearing to determine if they remained a threat to the community. If the court found they were not a threat, the verification requirements could be removed.

The 1996 law further ...

NY DOC’s Former 60% Prisoner Phone Call Kickback Scheme Did Not Violate Prisoners’ Families’ Constitutional Rights

NY DOC’s Former 60% Prisoner Phone Call Kickback Scheme Did Not Violate Prisoners’ Families’ Constitutional Rights

In December, 2007, the New York State Supreme Court (this is a trial level court) held that the New York Department of Corrections’ (NYDOC) policy of contracting for prisoner collect telephone calls, which resulted in a 60% kickback to NYDOC from the telephone company, did not violate the constitutional rights of the recipients of those calls. While any recovery of past alleged overcharges was thus blunted, future rates have been contained by a progressive new New York state law (Corrections Law § 623, 12007, ch. 240, § 2), effective April 1, 2008, that bars NYDOC from gouging prisoners’ families with charges that exceed the reasonable cost of establishing and administering its telephone system. This ruling comes after the case had been remanded to the trial court by the state Court of Appeals, the highest court, which had reversed a prior dismissal of the case. See: Walton v. NY DOCS, 863 N.E.2d 1001 (NY 2007).

Ivey Walton and other friends and relatives of prisoners in NYDOC, supported by the Office of the Public Defender and New York State Defenders Association, sued NYDOC seeking ...

Prison Legal News Prevails in Tennessee Public Records Suit Against CCA

Prison Legal News Prevails in Tennessee Public Records Suit Against CCA

In 2002, the Tennessee Supreme Court ruled that a private company which performed services that were “functionally equivalent” to those provided by a public agency had to comply with the state’s Public Records Act, T.C.A. § 10-7-501, et seq. See: Memphis Publishing Company v. Cherokee Children & Family Services, Inc., 87 S.W.3d 67 (Tenn. 2002).

This ruling was not tested against the nation’s largest private prison company, Nashville-based Corrections Corp. of America (CCA), until CCA officials refused to produce public records requested by PLN associate editor Alex Friedmann in April 2007.

PLN had asked for records related to successful litigation against CCA, including verdicts, settlements and judgments, as well as “reports, audits, investigations or other similar documents which found ... that CCA did not comply with one or more terms of its contracts” with government agencies.

After CCA declined to produce the requested records, PLN filed suit in Davidson County Chancery Court on May 19, 2008, seeking to force CCA to comply with the state’s Public Records Act pursuant to the ruling in Cherokee. “Public agencies cannot contract away the public’s ability to review records that ...

TASER International’s Stock Shocked By $6.2 Million Damages Award

TASER International’s Stock Shocked By $6.2 Million Damages Award

by John E. Dannenberg

The stock of TASER International, Inc. tanked by 11% to $6.13 per share on June 9, 2008 when three days earlier a federal jury in San Jose, California awarded $6.2 million in a wrongful death suit to the family of a fatally shocked prisoner. TASER spokesman Steve Tuttle said it plans to appeal the verdict.

Scottsdale, Arizona based TASER manufactures 50,000 volt stun guns for sale to police departments to use in lieu of bullets as “less lethal” weapons. But the irony of the concept “less lethal” is on a par with that of “partially pregnant.” It makes precious little difference to the deceased victim if he is slain by a police bullet or a Taser. While TASER touts its stun guns as safe, the statistics tell otherwise. Over 160 deaths involving Taser shocks by police have left civil rights advocates protesting and aggrieved families suing.
TASER has proudly touted its record of having survived 70 wrongful death lawsuits without a verdict against the company. But many of those cases were “settled,” meaning payment was made without admitting liability.

The instant ...

Teeth Extraction Policy for CA Women Prisoners Rescinded

Teeth Extraction Policy for CA Women Prisoners Rescinded

by John E. Dannenberg

As part of a bizarre medical policy, the California Dept. of Corrections and Rehabilitation (CDCR) has for years imposed a rule that requires women prisoners who apply for alternative community incarceration programs, where they can live with their infant children, to remedy any “pre-existing health problems” before they can participate. This includes decayed teeth, for which the only timely option is having them pulled by prison dentists.

Even though alternative community programs cost taxpayers far less than for regular prison beds, CDCR is not providing prompt dental care – a pound-foolish decision that requires otherwise qualified candidates for community programs to disfigure themselves by having their teeth removed under a policy known as “dental clearance.”

Relatively few women prisoners qualify for the community incarceration programs that let them serve their sentences with their children. Limitations include security and legal custody concerns. However, after clearing those hurdles prisoners must also pass a CDCR medical screening exam. The resolution of “health problems” is pitted against the women’s desire to bond with their babies. When the purported health problem is bad teeth, many mothers eschew the year-long wait for restorative ...

Michigan Jail Pays $145,000 for Vindictively Exhibiting Naked Detainees in Segregation Cell

Michigan Jail Pays $145,000 for Vindictively Exhibiting Naked Detainees in Segregation Cell

Four former male and female pre-trial detainees sued the Saginaw County, Michigan jail for an outrageous disciplinary policy that forced them to sit in a segregation cell visible to passers-by of both sexes, after first being stripped ...

Harris County, Texas Sends 600 Jail Prisoners to Private Pen in Louisiana

Harris County, Texas Sends 600 Jail Prisoners to Private Pen in Louisiana

In December 2007, Harris County, Texas officials announced they were sending an additional 200 jail prisoners – 180 of them women – to a privately-run prison in northeast Louisiana. This brings the total number of Harris County prisoners incarcerated at the West Carroll Detention Center (WCDC) in Epps, Louisiana to 600. WCDC is owned and operated by Emerald Correctional Management.

Harris County, which includes the City of Houston, has a history of failing inspections by the Texas Commission on Jail Standards (TCJS) due to overcrowding and staffing issues. The Harris County Jail has failed every inspection since 2004, but finally passed an inspection in May 2007, shortly before shipping 400 prisoners to WCDC.

The county is also concerned about intervention from the U.S. Dept. of Justice (DOJ). It was reported in March 2008 that the DOJ had notified county officials that the jail was under investigation, with a focus on “protection of inmates from harm, environmental conditions, and inmate medical and mental health care.”

The Harris County jail system houses around 11,000 prisoners – 1,600 over capacity – and has received permission from the ...

Jail Prisoners Get Rapid HIV Tests

A relatively new rapid HIV test has been used on over 31,000 jail prisoners in four different states. The testing was made possible by grants from the Centers for Disease Control (CDC).

The grants were part of a project to expand the use of HIV tests to jail prisoners nationwide, with the goal of identifying and preventing HIV infections. It is estimated that 25 percent of all people infected with HIV will eventually pass through a jail or prison, and that 25 percent of people infected do not know they have the disease.

The CDC-funded study ran from January 2004 to March 2006 and involved testing male and female prisoners at jails in Florida, New York, Louisiana and Wisconsin. The study participants received the OraQuick rapid HIV test, which provides results in about 20 minutes. Traditional blood tests can take weeks. For jail prisoners who remain in custody for very short periods of time, the rapid tests are seen as more practical and effective.
Participation by prisoners was said to be voluntary and required written informed consent.

Among the four pilot states, Wisconsin had the lowest prevalence of positive HIV test results. Nationwide it is estimated that 0.6 ...

Federal Prisoner May Not be Held Indefinitely in Punitive Housing Pending Investigation of Infraction

Federal Prisoner May Not be Held Indefinitely in Punitive Housing Pending Investigation of Infraction

The U.S. District Court for the Eastern District of New York has held that a federal prisoner, removed from the general population and placed in administrative segregation (SHU) pending investigation of in-prison charges, could not be held in the SHU indefinitely as that would violate his rights proscribing pre-trial punitive detention.

Kenneth McGriff, a prisoner at the Metropolitan Detention Center (MDC) in New York, was alleged to be in possession of subscriber identity module (SIM) cards for cellular phones. Pending investigation by Bureau of Prisons (BOP) staff for rules violations, as well as possible prosecution by the U.S. Attorney’s office, McGriff was placed in the SHU. However, he complained that his continued months-long administrative detention violated his due process rights under Bell v. Wolfish, 441 U.S. 520 (1979), which precludes punishment while a pre-trial detainee is still presumptively innocent.

McGriff sought relief from the punitive SHU conditions under the Bail Reform Act of 1984 (18 U.S.C. § 3141, et seq.). Because “bail” was not an appropriate remedy, the court treated his application as sounding in habeas corpus. The defendants argued that ...

$204,856 in Attorney’s Fees and Costs Awarded in Nebraska Kosher Diet and Muslim Prayer Case

$204,856 in Attorney’s Fees and Costs Awarded in Nebraska Kosher Diet and Muslim Prayer Case

by Brandon Sample

On May 5, 2008, Joseph F. Batallion, Chief Judge of the U.S. District Court for the District of Nebraska, awarded $204,856.28 in attorney’s fees and costs to a ...

Excessive Force Suit Against Illinois Guards Must be Retried, Allowing Evidence of Guards’ Actions

Excessive Force Suit Against Illinois Guards Must be Retried, Allowing Evidence of Guards’ Actions

The Seventh Circuit U.S. Court of Appeals held that a prisoner who sued guards for allegedly brutally injuring him during an uncuffing procedure must be given a new trial wherein evidence of the guards’ actions would be presented to the jury.

During the first trial, the district court had prohibited such evidence as being barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997), because the plaintiff had lost an earlier complaint in a related disciplinary hearing, and could not use 42 U.S.C. § 1983 to in essence readjudicate the underlying disciplinary conviction.

Alex Gilbert, incarcerated since age 14 and not legally skilled, filed a pro se lawsuit in U.S. District Court (S.D. Ill.), claiming prison guards had scarred his arm and twisted it out of its socket when uncuffing him after he had reentered his cell. Gilbert had purportedly started an earlier fracas, and was accused of the considerable feat of striking a guard with his cuffed hands while they were protruding from a hole in his cell door that facilitated ...

Bill Introduced to Exempt Wrongfully Convicted from Federal Income Taxes

Bill Introduced to Exempt Wrongfully Convicted from Federal Income Taxes

On December 6, 2007, U.S. Senators Charles E. Schumer (D-NY) and Sam Brown (R-KS) introduced a bill to exempt wrongfully convicted former prisoners from having to pay federal income tax on their compensation awards. The bill would also exempt exonerees from paying taxes on the first $50,000 of annual income, and would provide their employers with payroll tax credits for the lesser of 15 years after release or the number of years spent in prison.

More than 200 prisoners have been exonerated by DNA evidence and over 400 by other types of evidence since 1989. Twenty-two states have passed compensation laws for exonerated prisoners. California, Massachusetts and Vermont exempt such compensation payments from state taxes. Federal law, however, is unclear as to whether compensation for wrongful convictions should be taxed as income or exempted like a personal-injury award.

Some exonerees have challenged their federal income taxes in court and received exemptions. Most either pay the taxes or ignore the tax bill, according to attorney Barry C. Scheck, co-founder of the Innocence Project at the Benjamin N. Cardozo School of Law.

“The criminal justice system is not perfect, so ...

States Expand Registration Laws to Include Drug Offenses

States Expand Registration Laws to Include Drug Offenses

In 2003, Montana began including persons convicted of manufacturing illegal drugs on its sex offender and violent offender Internet registry. Since then, Tennessee, Minnesota, Kansas and Illinois have created online registries for people convicted of making or selling methamphetamine. The information on such registries usually includes name, date of birth, conviction offense, date of conviction and location of offense. Thus far, unlike sex offender registries, and with the exception of Kansas, they do not include current addresses and photos.

Similar drug offense registries have been proposed in Georgia, Maine, Oklahoma, Oregon, Washington, Kentucky, West Virginia and on the federal level.

Tennessee enacted a meth offender registration database in 2005, in response to complaints from landlords over toxic chemical contamination in buildings used for illegal methamphetamine labs. Within its first 18 months of operation, Tennessee added over 400 meth offenders to its registry.

Brian McClung, spokesperson for Minnesota Governor Tim Pawlenty, said that Pawlenty used executive powers to create Minnesota’s registry so that residents could check for methamphetamine offenders in their neighborhoods and landlords could screen current or potential tenants. “We want to arm citizens with information, so they can protect themselves and ...

Alabama Jail Guard Fired, Convicted, Held Civilly Liable in Prisoner’s Assault

Alabama Jail Guard Fired, Convicted, Held Civilly Liable in Prisoner’s Assault

by David M. Reutter

In a rare conclusion to a guard’s violent attack on a prisoner, a Jefferson County, Alabama jail guard was fired, prosecuted, convicted and found liable in a civil lawsuit. The guard, Antonio Allums, continues to ...

Montana DOC Employees Disciplined for E-mail Abuse

An internal investigation of e-mail abuse in the Montana Dept. of Corrections (DOC) uncovered what was termed “disgusting” behavior on the part of guards and even high-level prison officials. Seventy-four employees were cited for abusing state computer privileges.

Their offenses included e-mailing sexually and racially inappropriate material, chain letters, videos, jokes and pictures. One image, which was referred to the sheriff’s department and FBI for review, contained a photo of a naked child.

All 74 employees were called on the carpet to answer for their misbehavior; disciplinary actions included verbal warnings, written warnings, 1-to-9 day suspensions and even several “last chance” agreements in which employees acknowledged that further infractions would result in termination. One employee resigned. The sheriff’s department declined to press charges over the nude child picture.

The DOC has had to deal with the problem of e-mail abuse before; it has now implemented a monthly audit to screen employees who were previously warned as well as a number of randomly selected staff members.

On December 9, 2007, the DOC announced that it would still allow limited e-mail use for appropriate situations such as notifying family members that an employee would have to work late. “I believe ...

Segregated Massachusetts Nation of Islam Prisoners Entitled to Halal Menu and Jum’ah Prayers; $237,299.25 in Attorney Fees Awarded

The U.S. District Court for Massachusetts granted declaratory relief to two maximum-security Nation of Islam (NOI) prisoners who had sued for a Halal (Muslim religious dietary) menu and participation in daily Jum’ah prayers. The district court denied the plaintiffs’ requests for meal preparation by Muslim prisoners, prayer rugs ...

PHS Wins Quadriplegic Prisoner’s Negligence Suit, Jail Settles for $100,000

PHS Wins Quadriplegic Prisoner’s Negligence Suit, Jail Settles for $100,000

On February 14, 2008, a Florida jury found that Prison Health Services (PHS) was not negligent in misdiagnosing a jail prisoner’s broken neck, which left him a permanent quadriplegic. The series of events that led to this tragic result ...

Federal Prisoner in State Jail Custody Illegally Denied State Court Name Change Petition

Federal Prisoner in State Jail Custody Illegally Denied State Court Name Change Petition

The California Court of Appeal has reversed the Fresno Superior Court’s denial of a name-change petition filed by a federal prisoner awaiting sentencing while housed in the Fresno County Jail. The California law precluding a state prisoner from changing his name while incarcerated was inappropriately applied to this federal prisoner.

Timothy Wayne Arnett was in jail awaiting federal court sentencing, where he faced over 140 years for seven armed bank robberies (to be served consecutively to a ten-year term for another such robbery in Oregon). He applied to the Fresno Superior Court under Cal. Code Civ. Proc. § 1276, et seq. to change his name to August Damian Kokopelli. The U.S. Attorney was invited to respond – he objected because the name change was not for religious (or other constitutional) purposes; Arnett’s name change would cause confusion in federal records because his current name was already on his judgment/commitment order; and because California law expressly precludes a “state prison inmate” from changing his name while incarcerated.

The Superior Court denied the petition solely on the grounds that it would thus be illegal. On appeal, Arnett ...

U.N. Committee Against Torture: Tasering is a “Form of Torture”

by Matt Clarke

On November 23, 2007, the United Nations Committee Against Torture (CAT) concluded that using the Taser X-26 electric stun gun is a “form of torture” that “can even provoke death.” CAT is charged with overseeing the application of the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of which the United States is a signatory.

CAT recommended that Portugal, which recently equipped its police force with the X-26, “consider renouncing the use of electric weapons” because the physical and mental effects of Tasers would violate the Convention’s prohibition against torture. The committee noted that “use of these weapons provokes extreme pain” and may be fatal, “as reliable studies and recent facts occurring in practice have revealed.”

The X-26 Taser fires two sharp electrodes into a person’s body. The electrodes, which are connected by wires to the weapon, deliver a 50,000 volt shock. This causes temporary muscle paralysis; however, according to the manufacturer and the government organizations it supplies, the shock is below the threshold for causing cardiac defibrillation and thus is presumably safe.

That picture is not so rosy according to Amnesty International, which asserts that Tasers have ...

71-Year-Old Veteran Paid $185,000 for Rough California Jail Booking Treatment

An elderly veteran, while being booked into the Santa Clara County, California jail in December 2005 for failure to appear at a civil trial, struggled with deputies during the fingerprinting process and was subdued with violent force. He claimed he suffered a fractured eye socket, broken nose, impaired vision, acute ...

Prior Failure to Register as Sex Offender Does Not Violate Adam Walsh Act

Prior Failure to Register as Sex Offender Does Not Violate Adam Walsh Act

On December 5, 2007, the U.S. District Court for the Western District of Missouri granted a motion for judgment of acquittal in a criminal prosecution for failure to register as a sex offender.

Terry Lee Rich, a convicted sex offender, moved from Iowa to Kansas City, Missouri in March of 2006, but did not register as a sex offender. Four months later Congress passed the Adam Walsh Act (Walsh Act), which makes it a felony for a convicted sex offender who “travels” in interstate commerce (e.g., across state lines) not to register. See: 18 U.S.C. § 2250(a). Federal authorities sought to prosecute Rich under the Walsh Act based on his failure to register as a sex offender following his move from Iowa to Missouri – which had occurred before the Walsh Act was enacted.

In considering Rich’s mid-trial motion for judgment of acquittal, the court held that the Walsh Act did not apply to travel by sex offenders in interstate commerce before the law was enacted. The district court based its decision not on Ex Post Facto concerns, but rather on the ...

Monetary Sanctions Permitted for Milwaukee Jail’s Violation of Consent Decree

Monetary Sanctions Permitted for Milwaukee Jail’s Violation of Consent Decree

by David Reutter

Wisconsin’s First District Court of Appeals has held that an intentional contempt finding against the Milwaukee County Jail (MCJ) entitles prisoners who were injured by the contemptuous conduct to recover monetary sanctions.

In March 1996, MCJ prisoner Milton Christensen filed a pro se lawsuit that alleged dangerous conditions at the facility. An amended class action complaint was later filed by the Legal Aid Society of Milwaukee. The trial court summarized the complaint by stating it alleged conditions at MCJ were “substandard,” resulted in “the infliction of needless pain and suffering,” and created “a threat to the inmate’s mental and physical well-being.” The cause of the unconstitutional jail conditions was overcrowding.

In May 2001, the trial court approved a 48-page settlement agreement and consent decree. Relevant to the subsequent contempt proceeding, the court noted that MCJ was not to keep prisoners in the jail longer than thirty hours without assigning a bed. The midnight population count was not to exceed 1,100, and prisoners would not be kept in the booking area longer than thirty hours.

The court found that between November 2001 and April ...

WA Prisoner Properly Denied Access to Savings Account to Hire Lawyer for Parolability Hearing

WA Prisoner Properly Denied Access to Savings Account to Hire Lawyer for Parolability Hearing

by Roger Smith

Division 2 of the Washington Court of Appeals has upheld a denial by the state Department of Corrections (DOC) of a prisoner’s request to use funds from his Personal Inmate Savings Account (PISA) to hire counsel to represent him at a parolability hearing.

On June 18, 2004 Glen Thomas, a Washington state prisoner at the Monroe Corrections Complex near Monroe, Washington, asked superintendent Gary Fleming for permission to use $2,000 from his PISA to hire a lawyer to represent him at his upcoming parolability hearing. Even though Thomas’ PISA had almost $8,000 in it, Fleming denied his request because he wasn’t going to use the money for community transition upon his release from prison or for an emergency.

Thomas had about $2,500 in his spendable account at the time, but he was using that money to pay another attorney in a different matter. Believing his need for counsel at his parole hearing, under the circumstances, constituted an emergent need to access his PISA, he filed suit against then-DOC Secretary Joe Lehman in state superior court under 42 U.S.C ...

Sixth Circuit: $4.5 Million Award Upheld Against Michigan DOC Doctor in Dehydration Death of Mentally Ill Prisoner

Sixth Circuit: $4.5 Million Award Upheld Against Michigan DOC Doctor in Dehydration Death of Mentally Ill Prisoner

by John E. Dannenberg

The Sixth Circuit U.S. Court of Appeals upheld a $4.5 million damage award against a Michigan Department of Corrections (MDOC) doctor whose deliberate indifference resulted in ...

$7,025 Award in Slip and Fall From Ohio Prison Bunk

The Ohio Court of Claims has awarded a former Ohio prisoner $7,025 for injuries related to a slip and fall from a prison bunk.

Stacy Rose slipped and fell while climbing down from his bunk at the Chillicothe Correctional Institution. Rose suffered injuries to his lower back, left ankle ...

Ten Michigan Lawyers Honored For 8-Year Effort To Win $30 Million Damages For 10 Women Prisoners’ Sexual Abuse By Prison Guards

by John E. Dannenberg

Ten Michigan attorneys were awarded two different awards by two national attorney professional associations. The attorneys received the National Lawyers Guilds’ coveted Law for the People award. The NLG was founded in 1937 as the nation’s first racially integrated bar association. In addition to the ...

Georgia Inmate Welfare Fund Consent Decree Terminated Under PLRA

Georgia Inmate Welfare Fund Consent Decree Terminated Under PLRA

The Eleventh Circuit Court of Appeals has ordered a Georgia federal district court to terminate a permanent plan for charitable donations from the Inmate Welfare Fund at the Glynn County Detention Center (GCDC). The matter was before the Eleventh Circuit after the district court dismissed GCDC’s motion to terminate, holding the plan was a private settlement rather than a consent decree subject to termination under the Prison Litigation Reform Act (PLRA).

The GCDC Inmate Welfare Fund was created in 1985 as part of a consent order to settle a prisoner class action suit that alleged unconstitutional conditions at the facility. The Fund was established “to generally promote the welfare of the inmate population and may be used to defray the costs of items furnished the indigent inmates,” and used profits from GCDC’s commissary and pay phones.

By 1993 the Fund had accumulated a large surplus and GCDC moved to donate the surplus to charity. The district court granted the motion as well as the prisoners’ subsequent motion to donate the excess to charity on an annual basis. Two years after the PLRA was enacted, GCDC moved to terminate the consent ...

$45,000 Awarded to Probationer Subject to Overzealous Probation Officer

$45,000 Awarded to Probationer Subject to Overzealous Probation Officer

An arbitrator awarded Washington State probationer Mark S. Rice $44,515 in a claim alleging negligence, emotional distress, and aggravation of a preexisting elbow injury. Washington Department of Corrections Community Corrections Officer Jenny Sheriden was alleged to have overstepped her ...

Michigan Federal Court Issues Injunctive Relief for Lifer Parole Hearings

Michigan Federal Court Issues Injunctive Relief for Lifer Parole Hearings

by John E. Dannenberg

The U.S. District Court for the Eastern District of Michigan issued a declaratory judgment and remedial injunctive order granting new hearings to non-drug offense parolable Michigan prisoners sentenced to life prior to 1992, who had been denied parole hearings due solely to gradual changes in parole board rules. The court had previously held that those changes had the net effect of increasing punishment in violation of the U.S. Constitution’s Ex Post Facto clause. [See: PLN, Feb. 2008, p.20].

The injunctive order affects a class of over 1,000 pre-1992 non-drug offense lifers who are in theory eligible for parole, but whose hearings have been sidelined due to insidious changes in parole board rules that have delayed their parole consideration to the point of eternally denying them release on parole. In essence, the court’s ruling will return the parole board rules to the status quo that existed before 1992.

Considering the defendants’ prior unconstitutional conduct, the skeptical district court issued a 24-paragraph “first remedial order” to cover an initial six-month period, during which it gave the defendants “a chance to show that they are ...

$305,021 Awarded to Missouri Prisoner Struck by Tree; State Legislature Takes Note

$305,021 Awarded to Missouri Prisoner Struck by Tree; State Legislature Takes Note

by Brandon Sample

A Missouri prisoner was awarded $305,021 after being struck by a tree. In February 2000, Hortense Cain, a female prisoner at the Women’s Correctional Center in Vandalia, was assigned to a Missouri Department ...

Washington DOC Fires McNeil Island Employee for Prisoner Fund Theft

Washington DOC Fires McNeil Island Employee for Prisoner Fund Theft

On February 22, 2008, the Washington State Department of Corrections (DOC) fired Colleen Brixley, 48, a fiscal analyst at the McNeil Island Corrections Center, for stealing $103,000 from the McNeil Offender Welfare Betterment Fund. The fund is used primarily to pay staff salaries for positions such as chaplains, grievance coordinators, etc. Token amounts are also used to finance programs for prisoners that provide stronger family relations, improvements to visitation areas, games for prisoners’ children, and religious supplies. The money in the fund is mostly generated from kickbacks on prisoners’ telephone calls that make maintaining family ties for prisoners extremely difficult and expensive.

The DOC turned over the results of its investigation to the Pierce County Sheriff’s Department. The internal investigation revealed that Brixley wrote fund checks to her husband and deposited them in their personal account; forged signatures; misrepresented financial documents; and changed processes to conceal her actions.

On August 29, 2008, Brixey was charged in Pierce County Superior Court with three counts each of theft and forgery. Her bail was set at $5,000, and a trial is scheduled for October 23. It is unknown whether any of ...

Contempt Order Entered Against Virgin Island’s Prison Mental Health Care

Contempt Order Entered Against Virgin Island’s Prison Mental Health Care

A Virgin Islands federal district court has held territory officials in contempt, ruling that they willfully violated the court’s orders. That finding came in a class action suit dating back to 1994 which challenges “inhumane and dangerous conditions” at the Criminal Justice Complex (CJC) and CJC Annex in St. Thomas.

The parties entered into a Settlement Agreement in October 1994. Since that time, the court has issued several remedial orders. It has also held the defendants in contempt three previous times. The current, or fourth, contempt finding relates to serious failures in mental health care and appropriate housing for mentally ill prisoners.

The court’s latest order spent considerable time discussing mentally ill defendants who had been found not guilty by reason of insanity (NGRI). By 2003, the CJC was holding four such prisoners. They were eventually transferred to the Golden Grove Adult Correctional Facility (ACF). At intake, the ACF counselor indicated that she was “at a loss of what to do” regarding the treatment of those prisoners. ACF’s lone psychiatrist wrote to document his “serious concerns about remanding individuals who are not convicted nor convictable to a prison where he ...

$449,000 Settlement in BIA Prisoner’s Fall from Top Bunk in Detox Cell

$449,000 Settlement in BIA Prisoner’s Fall from Top Bunk in Detox Cell

The United States has settled a lawsuit alleging negligent supervision and observation of a prisoner who fell from a top bunk. While the settlement was estimated to be for $449,000, it could be more due to ...

Wyoming Prisoner Receives $350,000 in Failure to Protect Case

Wyoming Prisoner Receives $350,000 in Failure to Protect Case

The Wyoming Department of Corrections has settled a prisoner’s failure to protect claim for $350,000. The action was filed in U.S. District Court by Wyoming State Penitentiary prisoner Jason C. Huff.

Huff had informed prison officials upon intake ...

$1.95 Million for 18 Years Wrongful Imprisonment in North Carolina

On February 16, 2007, a North Carolina man who spent 18 years in prison for a rape he didn’t commit settled with the State and the City of Winston-Salem for $1,958,454.

Darryl Hunt, a black man, was imprisoned in 1984 for the rape and murder of Deborah ...

Indiana Judge Refuses to Send Juveniles to Unsafe Facility

On December 17, 2007, Judge Peter Nemeth of St. Joseph County, Indiana informed Governor Mitch Daniels that he would no longer send female juvenile offenders to the Indianapolis Juvenile Correctional Facility (formerly known as the Indiana Girls School).
Nemeth found that the facility was understaffed and determined it was “neither safe nor productive” to send girls to the Department of Corrections (DOC) facility, which also housed male juveniles.

Judge Nemeth’s decision followed a court-ordered audit of the facility that was conducted on October 23, 2007. The audit found numerous deficiencies and rated the facility as “not satisfactory” or “needs improvement” in 13 of 27 reviewed areas. The facility, which until recently housed 258 youthful offenders, had a staff-to-juvenile ratio of one guard to every 20 to 40 children – far exceeding the acceptable standard of 1 to 10.

“It is disheartening to hear from juveniles that the staff is not consistently locking the doors to the bedrooms at night and not completing their rounds,” auditors wrote. “Overt sexual behavior continues more often during the day in the units and at the school … and apparently has become part of the culture at the facility.”

Nemeth said his staff interviewed dozens of ...

New York Mail Rule Disciplinary Conviction Reversed

The Appellate Division, Fourth Department, of the New York Supreme Court has ordered the removal from a prisoner’s institutional record of a misbehavior report for failing to comply with correspondence rules.

Curtis Davis, a prisoner at New York’s Attica prison, commenced an action pursuant to CPLR Article 78 to annul an administrative determination that he violated “inmate rules 108.13 and 180.11.” The Supreme Court found the misbehavior report and Davis’ own admissions constituted substantial evidence that he had possessed a magazine article about prison escape and had ordered equipment used to pick locks and bypass security systems, which was delivered to his attorney in New York City. Thus, his disciplinary violation for rule 108.13, which prohibits possession of an article or paraphernalia demonstrating a planned escape, was well founded.

There was no evidence, however, that Davis had violated the correspondence procedures of rule 180.11. While he received a letter from a former prisoner named “Sparky,” there was no evidence that Davis corresponded with Sparky while Sparky was incarcerated. Additionally, the misbehavior report stated only that Davis had received the mail, and did not indicate he had “kited” mail or wrote to a party other ...

Texas Adds Sex Offender Employment and School Information to Registry

Texas Adds Sex Offender Employment and School Information to Registry

The Texas Department of Public Safety has announced it is adding information about where sex offenders work and go to school to its online sex offender registry. The registry update will cost $1.2 million, which is being paid by a federal grant.

Texas’ sex offender registry already allows people to search for sex offenders by name or ZIP code, and provides neighborhood maps showing where sex offenders live as well as their photos, offense information, aliases and legal status.

The updated registry will list sex offenders’ occupational licenses, employer name and address, and school name and address if they are attending classes. It will also provide automatic notifications if a sex offender moves into a specified ZIP code or when a specific sex offender changes his or her registry information.

The expansion of the Texas sex offender registry was spurred by a 2007 Texas Attorney General’s opinion that found the public had a right to such information. Only Missouri, Maine and Alaska currently gather employment-related data for their registries. However, the Adam Walsh Child Protection and Safety Act requires all states to collect employment information about sex offenders by ...

Texas Youth Commission Settles Lawsuit with U.S. Dept. of Justice

It took less than three months for Texas officials to reach an agreement after the U.S. Department of Justice (DOJ) filed suit against the Texas Youth Commission (TYC), alleging mistreatment of youthful offenders. A final settlement was entered by the court on May 5, 2008.

The lawsuit brought against the TYC stemmed from a 2006 inspection of the Evins juvenile facility in Edinburg, Texas. In the DOJ’s complaint, filed in U.S. District Court for the Southern District of Texas, federal inspectors stated that TYC officials “have engaged, and continue to engage, in a pattern or practice of failing to ensure that the youth at Evins are adequately protected from harm.” The complaint further accused the TYC of “failing to provide youth ... adequate due process ... adequate rehabilitative treatment ... and engaging in a pattern or practice of depriving youth” of their constitutional rights.
DOJ officials toured the Evins unit between September 11 and 15, 2006. On March 15, 2007 they determined that conditions at Evins violated the rights of youths held at the facility. Suit was filed on February 1, 2008, though months of negotiations preceded the actual lawsuit.

Among the 40 points of the settlement, the TYC agreed ...

News in Brief:

California: On April 3, 2008, four prison guards at the state prison in Tehachapi were stabbed by two Hispanic prisoner members of the Surenos gang, and the entire state prison system was placed on lockdown. Other guards used batons, pepper spray and physical force to stop the attack. The injured guards suffered lacerations and stab and puncture wounds.

California: On April 4, 2008, twelve prisoners at the California Institution for Men in Chino were injured in an attack by Hispanic prisoners on white prisoners. The attack occurred in Laguna Hall, a 198-bed dormitory. The injuries resulted from being stabbed and beaten. Guards restored order using pepper spray. No staff were injured.

California: On January 18, 2008, 2,200 prisoners at the California State Prison in Solano staged a work strike to protest cutbacks in their yard access. Prior to the cutback up to 1,000 prisoners could have yard access. After the restriction it was reduced to 600.

Connecticut: On January 25, 2008, George Salisbury, a prisoner at the MacDougall Correctional Institute, trapped and assaulted a female guard in a dormitory control room. The unidentified guard screamed for help and three prisoners rushed to her assistance, breaking into the locked ...

Ice Cream Trucks No Treat for Sex Offenders

Several cities and at least one state have passed laws that prohibit sex offenders from driving ice cream trucks.

In 2004 Eduardo Grau, 56, was driving an ice cream truck in New York state when he molested a 9-year-old girl. It was discovered that Grau had been in the habit of offering rides to the children on his route. By 2005 New York had passed a law prohibiting sex offenders from driving ice cream trucks.

A similar case in Florida, in which the driver was charged with battery of a teenager, has prompted that state to consider passing its own ice cream truck law.

Florida Assistant State Attorney Harmon Massey, who prosecuted the case said, “Can you think of a better kid magnet, if you were a sex offender?”

California’s San Bernardino County Supervisors are considering imposing restrictions as well. Amanda Purnham, of Perris, discovered that a convicted sex offender was driving an ice cream truck in her subdivision.

“There are a bazillion things you could do for a living that don’t involve children,” said Burnham. “It just seems like a very, very odd choice.”

Burnham motivated residents to put flyers on every house in the area.

San ...

 

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