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Prisoner Education Guide

Prison Legal News: December, 2008

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Volume 19, Number 12

In this issue:

  1. Use of Questionable “Lie Detectors" by Law Enforcement Expands Nationwide (p 1)
  2. PLN Attorneys Awarded $137,672 for Post-Settlement Work in CDCR Censorship Case (p 7)
  3. Canadian Prisoner Recognized for Advocacy on Prisoner Health Issues (p 8)
  4. From the Editor (p 8)
  5. $2.75 Million Verdict in Dehydrated Michigan Prisoner’s Death (p 9)
  6. StopMax: The Fight Against Supermax Prisons Heats Up (p 10)
  7. Ruling Against Expression is No Music to Prisoners’ Ears (p 14)
  8. An Execution in the Family: One Son’s Journey, by Robert Meeropol; St. Martin’s Griffin, 273 pages, $14.95 (p 16)
  9. Connecticut DOC Settles Prisoner Hogtying Death For $900,000 (p 17)
  10. NIC Report: Wisconsin Jails Racist and Dangerous (p 18)
  11. Wyoming American Indian Prisoner Wins Consent Decree to Receive Feathers (p 19)
  12. “Habeas Hints” (p 20)
  13. California DOC Settles Sadistic, Hate-Motivated, Three-Year Starvation Death Of Sikh Prisoner For $1 Million (p 22)
  14. New Zealand Prisoners Building Copiers for Canon (p 23)
  15. Exonerated Florida Prisoner Receives $2.2 Million; Second Lawsuit Still Pending (p 24)
  16. CMS Insurer Must Pay Wyoming Suicide Settlement (p 24)
  17. Jury Awards Indiana Prison Law Library Clerk $1,150 for Retaliation (p 26)
  18. NCCHC Releases Position Statement on Abuse of Prisoners (p 26)
  19. California Guards Union Investigated for Hiring Parolee for Office Job (p 27)
  20. Prison Population Continues Exponential Growth (p 28)
  21. Alabama Policy Denies Work Release to HIV/AIDS Infected Prisoners (p 28)
  22. Indiana Prisoner Receives $200,000 in Excessive Force Case (p 29)
  23. Landmark 1980 California Death Row Federal Consent Decree Partially Terminated Under PLRA (p 30)
  24. Indiana DOC Policy Banning Group Worship by Odinists Enjoined (p 30)
  25. BOP Agrees to Pay $90,000 in Attorney’s Fees and Costs in Suit Over Constitutionality of Byline Regulation (p 31)
  26. Colorado DOC Pays $60,000 Settlement for Suicide of Former Prisoner Who Was Sexually Abused by Guard (p 32)
  27. Self-Help Legal Guides, Publisher, Rosemary Steele; 104 pages, Softbound (p 32)
  28. Sexual Abuse and Violence in Texas Prisons Eclipses National Average (p 33)
  29. $1.5 Million Settlement Provided to Immigrant Prisoner Who Lost Leg in Colorado Jail (p 34)
  30. $2.75 Million Settlement in New York Prisoner’s Loss of Sight Claim (p 34)
  31. New Jersey Fires 52 Prison Guards in 2007 (p 35)
  32. $4.45 Million Verdict in Meningitis Death of Cook County Jail Prisoner (p 36)
  33. GEO Group Consultant Civilly Charged With Insider Trading (p 36)
  34. U.S. Supreme Court Upholds Use of Lethal Injection (p 37)
  35. Oregon Guards Wrongly Fired Win $1,000,000 (p 38)
  36. Exonerated Florida Man Receives $1.25 Million (p 38)
  37. Helping Ex-Prisoners Find Jobs Has Become Important to the Government, Finally (p 38)
  38. Pennsylvania Jail Rebuffs Calls for Independent Review of Abuse Claims (p 39)
  39. $290,000 Award for New York Prisoner’s Slip and Fall on Ice (p 40)
  40. Strip Search Policy E-mails Were Attorney-Client Communications, but Privilege Is Waived (p 40)
  41. Florida Jail Supervisors Investigated in Fraudulent Overtime Scheme (p 41)
  42. $25,000 Award To South Carolina Prisoner Injured Performing Community Service (p 42)
  43. New Hampshire Prisoner’s ADA Claim Survives Summary Judgment (p 42)
  44. Native American Reservations in Dire Need of Better Jails, Get Money to Build More (p 43)
  45. Ohio Man Receives $600,000 for Wrongful Imprisonment (p 43)
  46. Seventh Circuit: Delayed Medical Care Because Doctor Attended New Year’s Party Constitutes Deliberate Indifference (p 44)
  47. South Dakota Guard Liable for Prisoner’s Electrocution Death (p 44)
  48. Legal Financial Obligation Deductions Imposed on All Washington Prisoners (p 45)
  49. Massachusetts DOC Ordered to Provide Vegan Meals to Buddhist Prisoner (p 46)
  50. Tenth Circuit: Procedural Defense to Federal Prisoner’s ETS Suit Fails on Inadequate Grievance Record-Keeping (p 46)
  51. Ninth Circuit: Statutory Increase in Restitution Payment Rate Does Not Violate Plea Agreement and is Not Ex Post Facto (p 47)
  52. EAJA Permits Recovery of Fees for Paralegal Services at Market Rates, US Supreme Court Holds (p 47)
  53. New York Sex Offenders’ Settlement Agreement Superseded by New Registration Law (p 48)
  54. Tenth Circuit Follows Jones v. Bock, Reverses Full-Exhaustion Predicate in § 1983 Cases (p 48)
  55. Washington Court Invalidates Pretrial Substance Abuse Conditions (p 49)
  56. No Filing Fee Lien Allowed in Florida Mandamus Cases (p 49)
  57. News in Brief: (p 50)
  58. $635,000 Settlement in Wisconsin Woman Prisoner’s Suicide (p 52)

Use of Questionable “Lie Detectors" by Law Enforcement Expands Nationwide

Use of Questionable “Lie Detectors” by Law Enforcement Expands Nationwide

by Matt Clarke

In the aftermath of the Sept. 11, 2001 terrorist attacks, law enforcement and other government agencies implemented new practices to obtain information from suspects during investigations and interrogations. The use of torture and torture-like techniques to extract information from suspected terrorists and “enemy combatants” has been widely publicized in the mainstream media. Less well known is the government’s use of so-called lie detectors as routine interrogation tools in our nation’s criminal justice system.

Generally, two types of devices are used as lie detectors – polygraphs and voice analyzer systems. Polygraphs are more familiar; they use sensors on the fingers, hands, arms, chest and abdomen to measure as many as 21 stress indicators such as sweating, breath rate, blood pressure and heart rate. These indicators are graphed and interpreted by a trained examiner who then purports to determine whether the person being questioned is telling the truth or being deceptive. Voice analyzers are usually computer-based programs that purport to measure stress levels in a person’s voice.

The big lie about lie detectors is that they can detect lies. At most they measure stress. Studies have generally shown that ...

PLN Attorneys Awarded $137,672 for Post-Settlement Work in CDCR Censorship Case

PLN Attorneys Awarded $137,672 for Post-Settlement Work in CDCR Censorship Case

by John E. Dannenberg

On April 10, 2008, the U.S. District Court for the Northern District of California awarded $137,672 in supplemental legal fees and costs incurred in enforcing a settlement agreement between PLN and the ...

Canadian Prisoner Recognized for Advocacy on Prisoner Health Issues

Canadian Prisoner Recognized for Advocacy on Prisoner Health Issues

The Canadian HIV/AIDS Legal network and Human Rights Watch has recognized people and organizations that protect the rights and dignity of those living with or affected by HIV and AIDS. Peter Collins has worked as a peer health counselor since the late 1980’s.
In that capacity, Collins has provided prevention services, education and support to prisoners living with HIV and hepatitis C, advocating for better health care and HIV prevention services. “It’s not easy to be an advocate for prisoners when you’re a prisoner yourself,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal network.

Collins was nominated for the award by Giselle Dias, a policy analyst for Prisoner’s HIV/AIDS Support Action Network, which has worked with Collins since 2000. “We found the work he was doing was significant,” said Dias. “He’s been able to do it incredibly well despite the barriers, but I think that he’s faced consequences in deciding to speak out about health concerns in prisons.”

Statistics show a need for that advocacy. Of the 18,200 persons in Canadian prisons or related community programs, there are 218 known cases of ...

From the Editor

With the election past there has been a change in the faces of government and the election of Barak Obama is a historic occasion in US history with the election of a black man to the presidency for the first time. Whether there is any positive change on the criminal justice front for prisoners remains to be seen. At the federal level, the 100-1 crack to powder cocaine sentencing disparity remains a grave source of injustice and one that the criminal justice community has long called to be repealed or changed. The concentration camp at Guantanamo and the governmental policies of kidnapping, torture and indefinite imprisonment without charges remain an obvious source of outrage. The Prison Litigation Reform Act continues to impede prisoners’ right of court access.

Mr. Obama comes to the presidency with a scant record of accomplishment for the poor in general and prisoners in particular. Hopefully he will make up for lost time and address these issues in a positive manner. Given the huge impact that criminal justice practices have on both the poor in general and poor communities of color in particular, the injustices and disparities are long past need for serious change. Whether any change ...

$2.75 Million Verdict in Dehydrated Michigan Prisoner’s Death

A Michigan federal jury awarded $2.75 million to a prisoner’s estate in a case claiming deliberate indifference to serious medical needs. The prisoner, Jeffrey Clark, was having mental health problems and died due to the effects of dehydration and inhumanely hot conditions in his segregation cell.

While in ...

StopMax: The Fight Against Supermax Prisons Heats Up

“When I left Angola,” says Robert King Wilkerson, who spent 29 years in solitary confinement in Louisiana’s notorious Angola State Penitentiary for a crime he was later found innocent of, “I said, ‘I may be free of Angola, but Angola will never be free of me.’” Since his release seven years ago, the vow has taken him to rallies, churches and talk shows across the globe. Earlier this summer, it brought him to Philadelphia for the first-ever StopMax Conference, where he told stories, analyzed the state of the American prison system and collaborated with a throng of like-minded activists determined to “end the use of solitary confinement and related forms of torture in U.S. prisons.”

Wilkerson is a former member of the Black Panther Party and one of the Angola Three. He spent more than 30 years in prison for the killing of a prison guard, along with two other former Black Panthers – Albert Woodfox and Herman Wallace – before being exonerated by the state of Louisiana in February 2001. Woodfox and Wallace still languish in prison. They are the longest-held prisoners in solitary isolation to date in the United States.

On a Friday early this summer, Wilkerson addressed ...

Ruling Against Expression is No Music to Prisoners’ Ears

??by David L. Hudson, Jr.?

“Prison walls do not form a barrier separating the inmate from the protections of the Constitution.” So wrote Justice Sandra Day O’Connor in the 1987 decision Turner v. Safley. But the statement has often proved an empty incantation in courts across the country, as prisoners’ First Amendment rights tend to receive short shrift from the Supreme Court on down to lower federal courts. Even in Turner v. Safley, the Court created a very deferential reasonableness standard that favors prison officials in cases involving expression by prisoners.

A stark example of this broad deference can be seen in a July 2008 federal appeals court decision in Pennsylvania that rejected the First Amendment claims of a Pennsylvania prisoner who challenged the elimination of an important part of a prison music program.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals unanimously ruled in Young v. Beard that state prison officials did not violate the First Amendment when they eliminated prisoner recreational bands. Even though the program had existed for decades, the appeals court deferred to prison officials’ claims of possible security problems.

In a brief filed on behalf of prisoner Richard Glenn Young ...

An Execution in the Family: One Son’s Journey, by Robert Meeropol; St. Martin’s Griffin, 273 pages, $14.95

An Execution in the Family: One Son’s Journey, by Robert Meeropol; St. Martin’s Griffin, 273 pages, $14.95

Reviewed by David Preston

The Rosenberg case: for most Baby Boomers it is an historical footnote, something one recalls vaguely from a history class or a documentary on the Cold War. For older Americans, the case usually stands out in sharper relief; during the McCarthy era, the Rosenbergs were a touchstone of one’s personal politics, just as Sacco and Vanzetti had been for an earlier generation. Surely, though, there is no one, young or old, to whom the name “Rosenberg” is more visceral than it is to Robert Meeropol, youngest son of Julius and Ethel Rosenberg. An Execution in the Family is his story.

In March of 1951, following a hasty indictment and seriously flawed trial, the Rosenbergs were convicted of conspiracy to give atomic secrets to the Soviets. The couple maintained their innocence during and after the trial, repudiating testimony by Ethel’s brother David Greenglass and other accused co-conspirators, all but one of whom had cut snitch deals with the government in exchange for lighter sentences. After the death sentence was announced, troubling contradictions of the trial began to emerge, and ...

Connecticut DOC Settles Prisoner Hogtying Death For $900,000

Connecticut DOC Settles Prisoner Hogtying Death For $900,000

The Connecticut Department of Corrections (CDC) settled a wrongful death complaint for $900,000 when a prisoner who was hogtied in a prison classroom died of traumatic asphyxia from the application of such restraint.

Dennis Kinsman was an unconvicted pre-trial detainee ...

NIC Report: Wisconsin Jails Racist and Dangerous

On January 31, 2008, the National Institute of Corrections (NIC) issued a 139-page report detailing numerous flaws in the Milwaukee, Wisconsin jail system. The Milwaukee House of Correction (HOC), the Community Corrections Center (CCC) and the County Jail Facility (CJF) fell short in virtually every area scrutinized by inspectors. From fire hazards and filth to dysfunctional guards and the jail’s K9 unit, the HOC failed in every area but one.

Dr. Jeffrey A. Schwartz spent eight days touring the HOC in two separate visits, both in September 2007. Dr. Schwartz’s initial assessment was that the facility was overcrowded and in danger of many impending problems as a result.

The Milwaukee County jail system holds a total of around 3,440 prisoners. This includes 2,207 at the HOC, up to 280 in the CCC and up to 960 in the CJF.

For its size, the HOC operates an unusually large K9 unit. The jail has 14 dogs and handlers, even though dogs are seldom used in county facilities. Assistant Superintendent Jeffrey Mayer admitted that the K9s served a two-fold purpose of sniffing out drugs and intimidating prisoners. Inspectors concluded that two dogs would be just as effective as ...

Wyoming American Indian Prisoner Wins Consent Decree to Receive Feathers

Wyoming American Indian Prisoner Wins Consent Decree to Receive Feathers

In a victory for American Indian prisoners, the Wyoming State Penitentiary (WSP) has entered into a consent decree that allows a prisoner to possess up to four eagle feathers in his cell and a feather fan will be available for group activities.

That decree was entered in a lawsuit brought by WSP prisoner Andrew Yellowbear, who is a member of the Northern Arapaho Tribe, a federally recognized Indian tribe situated on the Wind River Indian Reservation in Wyoming. Yellowbear’s suit sought relief under the First Amendment and the Religious Land Use and Institutionalized Persons Act.

Eagle feathers play a significant role in the traditional American Indian religious exercises. “The feathers are used to communicate prayers to the Creator and to receive answers to prayers,” said Stephan Pevar, an ACLU attorney who represented Yellowbear. Prior to filing his lawsuit, Yellowbear was only allowed to possess one feather. After he filed suit, prison officials confiscated that feather.

The Consent Decree provides that prison officials have changed their policies to allow Yellowbear to possess four feathers and storage of the feather fan for group activities. The ACLU was awarded $8,000 in ...

“Habeas Hints”

by Kent Russell

This column is intended to provide “habeas hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on habeas corpus practice under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.

HABEAS YEAR IN REVIEW: ?2008

Boumediene v. Bush, 128 S. Ct. 2229 (2008)

This is the landmark case that held that habeas corpus is a constitutional privilege that is so fundamental to the American system of justice that it extends even to aliens detained outside the U.S. (specifically at Guantanamo Navy Base in Cuba) as “enemy combatants”. Although the holding of the decision itself – that Congress violated the Suspension Clause when it barred courts from hearing habeas petitions from Gitmo detainees without providing an adequate substitute procedure – has little practical impact on U.S. prisoners, almost all of whom already have nominal access to habeas corpus so long as they meet the AEDPA requirements, the opinion starts with a 20-page history of habeas corpus, and makes clear how important the right of habeas corpus is to America’s criminal justice system. Hence, consider citing ...

California DOC Settles Sadistic, Hate-Motivated, Three-Year Starvation Death Of Sikh Prisoner For $1 Million

California DOC Settles Sadistic, Hate-Motivated, Three-Year Starvation Death Of Sikh Prisoner For $1 Million

by Marvin Mentor

The California Department of Corrections and Rehabilitation (CDCR) settled a lawsuit brought by the survivors of a Sikh prisoner who died of starvation at Corcoran State Prison’s Substance Abuse Treatment Facility (SATF). The ...

New Zealand Prisoners Building Copiers for Canon

New Zealand prisoners will soon begin working on photocopiers at two prisons. According to New Zealand Department of Corrections (NZDOC) Minister Phil Goff, Canon New Zealand (CNZ) will initially employ a total of 15 prisoners at Rimutaka Prison and Auckland region Women’s Correctional Facility. The program is expected to expand in the future.

“This project is another step in a government drive to get more prisoners working and learning instead of doing their time sitting in their cells,” said Goff. CNZ will pay NZDOC market rates for the prisoners work, “ …which will offset the cost of prison employment and skill training programs,” said Goff.

The 2003 prison census revealed that 55% of the prisoners in NZDOC were not gainfully employed prior to being incarcerated. Also, 52% were found to have no formal qualifications. “Through programs such as Corrections Inmate Employment (CIE) we now have 51% of the total prison population and 66% of sentenced inmates involved in employment or training,” Goff said.

Market trends are used by CIE to determine industries that require specially trained workers within the geographical areas prisoners are likely to be released. “CIE then provides prisoners with training and employment opportunities within industries that are ...

Exonerated Florida Prisoner Receives $2.2 Million; Second Lawsuit Still Pending

Exonerated Florida Prisoner Receives $2.2 Million; Second Lawsuit Still Pending

The City of Miami has agreed to pay $2.2 million to a mentally ill man who served 22 years in prison for a rape and multiple murders he did not commit. DNA evidence cleared him in 2001.

Jerry ...

CMS Insurer Must Pay Wyoming Suicide Settlement

CMS Insurer Must Pay Wyoming Suicide Settlement

The Tenth Circuit Court of Appeals has held that an insurer is required to indemnify Correctional Medical Services (CMS) for an incident that occurred prior to CMS obtaining the insurance policy. The Court’s ruling came in a legal battle over the meaning of “other notice” under the policy.

The dispute between CMS and North American Specialty Insurance Company (NAS) centered around who was responsible for payment of a settlement involving a prisoner’s medical treatment. CMS had a contract to provide health care to prisoners at the Wyoming State Penitentiary. On July 3, 2000, when CMS was insured by PHICO Insurance Company, prisoner Orlando Patrick Roan Eagle committed suicide while under the care of a CMS doctor.

On July 20, 2000, Lawyers and Advocates for Wyoming (LAW), a not-for-profit public interest law firm, sent a letter to the Wyoming Department of Corrections requesting all medical and investigative records pertaining to Roan Eagle’s death. A copy of that letter was sent to CMS attorneys, who advised CMS Medical Claims Management Group of a possible future claim.

CMS obtained an insurance policy from NAS on October 31, 2000. That policy barred coverage for any claim against ...

Jury Awards Indiana Prison Law Library Clerk $1,150 for Retaliation

Jury Awards Indiana Prison Law Library Clerk $1,150 for Retaliation

On April 3, 2008, a federal jury awarded $1,150 to a prison law library clerk in a lawsuit claiming retaliation by a prison librarian.

Charles Watkins, a law clerk at the Indiana Department of Corrections’ Miami Correctional Facility ...

NCCHC Releases Position Statement on Abuse of Prisoners

by Matt Clarke

On October 14, 2007, the National Commission on Correctional Health Care (NCCHC) issued a position paper in response to the abuse of prisoners. The NCCHC is an organization dedicated to improving professionalism and safety in the jails and prisons by establishing national standards, accreditation, litigation and public openness. The paper condemns the abuse and/or torture of prisoners and calls upon health professionals to report such incidents.

In its 2003 Standards for Health Services in Prisons, the NCCHC precludes health staff directly participating in prisoners’ non-medical restraint or isolation (P-I-01 Use of Restraint and Seclusion in Correctional Facilities). Other standards require the informed consent of prisoners patients for “all examinations, treatments and procedures” (P-I-05 Informed Consent), recognize the patient’s right to refuse treatment (P-I-06 Right to Refuse Treatment), protect prisoners human medical research subjects (P-I-07 Medical and Other Research), require independence in clinical decisions (P-A-03 Medical Autonomy), protect the privacy of medical records (P-H-02 Confidentiality of Health Records and Information) and the privacy of prisoner health care (P-A-09 Privacy of Care). Standards also require documentation of patients’ health status at each encounter with health staff (P-H-04 Availability and Use of Health Records) and pay special attention ...

California Guards Union Investigated for Hiring Parolee for Office Job

California Guards Union Investigated for Hiring Parolee for Office Job

In June 2008, California’s Office of the Inspector General (OIG), which oversees the state prison system, began investigating the prison guards union (CCPOA) for hiring a parolee as an intern in the union’s legislative affairs office. The OIG was concerned about possible “over-familiarity” between a former prisoner and union members – which include parole officers.

CCPOA President Mike Jimenez vigorously defended the union’s hiring decision. Parolee Raul Gomez, 21, was hired by Minorities in Law Enforcement, a CCPOA affiliate that is funded largely by the guards union. Gomez, paroled to stay within a 50-mile radius of Sacramento, was paid to fly to southern California weekly on business. The OIG was concerned that Gomez was thus violating his parole conditions.

“I’m trying to do the right thing here,” Jimenez said, adding that the prison system talks about rehabilitation, “but then [does] everything possible to keep [parolees] from being successful.” Jimenez described Gomez in glowing terms. “He’s very up-front about his past ... and [that] he’s made mistakes. He has dreams, he has hopes, and I think he has a future.”

Of course, Jimenez didn’t rush to the defense of ...

Prison Population Continues Exponential Growth

by David M. Reutter

Two reports by the Department of Justice‘s Bureau of Justice Statistics examined the growth rate of America’s jails and prisons, which are burgeoning at a yearly pace of 2%. That growth resulted in an all-time record of 2.3 million people behind bars on June 30, 2007, making America the largest jailer in the world, both in terms of sheer numbers and as a percentage of its population which is imprisoned.

That population of prisoners is primarily in prisons which hold 1,595,034 people in state and federal gulags. Another 780,581 people are held in local jails on any given day. Those numbers fail to reflect the massive amount of people who cycle through the system each year. For the 12 months ending on June 29, 2007, it is estimated that 13 million people were admitted to local jails. Meanwhile, the nation’s prisons admitted 749,798 prisoners and released 713.473.

The ten states with the largest prisons house more prisoners than the forty other states combined. The top ten are: Texas, California, Florida, New York, Michigan, Ohio, Illinois, Georgia, Pennsylvania, and North Carolina. Together, they hold in their prisons 789 ...

Alabama Policy Denies Work Release to HIV/AIDS Infected Prisoners

Alabama Policy Denies Work Release to HIV/AIDS Infected Prisoners

by David M. Reutter

Citing a 2004 settlement that requires proper care for prisoners infected with HIV or AIDS, the Alabama Department of Corrections (ADOC) is denying such prisoners the opportunity to participate in work release programs.

The closest thing to freedom for an ADOC prisoner is work release, as it allows prisoners to hold jobs on the outside, earn money and wear street clothes. Work release ultimately “means less crime, fewer people returning to prison, and ultimately it means a safer society for everybody,” noted David Fathi, Director of the U.S. Program of Human Rights Watch and former senior staff counsel for the ACLU’s National Prison Project. “So by denying work release to inmates with HIV who would otherwise be eligible, Alabama is shooting itself in the foot,” he said.

ADOC officials claim that in order to comply with the settlement in a lawsuit filed over prisoner medical care, they have to closely monitor HIV and AIDS-infected prisoners. Otherwise, ADOC administrators allege, they could not assure those prisoners were taking their medications and eating properly. While that rationale may sound reasonable, the ADOC’s position appears to ...

Indiana Prisoner Receives $200,000 in Excessive Force Case

Indiana Prisoner Receives $200,000 in Excessive Force Case

An Indiana federal jury has awarded a state prisoner $200,000 for a guard’s use of excessive force. The claim arose from an incident that occurred at the Wabash Correctional Facility on April 21, 2005.

That was the day when prisoner ...

Landmark 1980 California Death Row Federal Consent Decree Partially Terminated Under PLRA

Landmark 1980 California Death Row Federal Consent Decree Partially Terminated Under PLRA

by John E. Dannenberg

A landmark 1980 federal consent decree that covers all manner of living conditions for San Quentin State Prison’s death row population was partially terminated in February 2008 following a motion by the state defendants, pursuant to the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626(b)(2) and (3).

As a result, protective orders covering such diverse concerns as meals, hobby craft, education, exercise yard access and equipment, clothing, showers, religious services, raincoats, laundry, telephones, visitation and law libraries were terminated because a 2007 court audit had found reasonable compliance in those areas. However, the district court determined that non-compliance still existed regarding the issues of cleaning supplies, pest control, shower maintenance/cleaning and noise in East Block, for which it therefore elected to continue court supervision.

Originally filed as Thompson v. Enemoto, the class action lawsuit requested federal oversight of living conditions for San Quentin’s death row prisoners (now numbering 631). Although granted the privilege of 4’ by 9’ single cells (non-condemned prisoners are double-bunked in identical size cells), prisoners on death row are greatly restricted in terms of movement ...

Indiana DOC Policy Banning Group Worship by Odinists Enjoined

by John E. Dannenberg

On June 19, 2008, a U.S. District Court held that the Indiana Department of Corrections (IDOC) failed to meet its burden of proving that a blanket ban on group worship by Odinists was the least restrictive means of maintaining institutional safety and security. The court permanently enjoined IDOC from enforcing such a policy.

Kevin Hummel is incarcerated at IDOC’s Miami Correctional Facility. When he arrived in prison he was a Christian, and for that reason was permitted to live in a religious dormitory under IDOC’s Purposeful Living Units Serve (PLUS) program.

While there he began to study Odinism (also called Asatru), an ancient religion originating in Northern Europe. He announced he was a “one percenter” – a white supremacist – and was removed from the PLUS dorm. Today he denies belief in racial superiority.

Apparently abandoning Christianity, Hummel now practices Odinism. With a modern revival commencing in the early 1970s, Odinism claims to have 100 groups in the United States. Their daily religious activities include prayer, but no weekly observances are required. However, they often meet to study and perform rituals.

IDOC recognizes Odinism as a religion. The prison system’s handbook notes that Odinists ...

BOP Agrees to Pay $90,000 in Attorney’s Fees and Costs in Suit Over Constitutionality of Byline Regulation

BOP Agrees to Pay $90,000 in Attorney’s Fees and Costs in Suit Over Constitutionality of Byline Regulation

On December 17, 2007, the Bureau of Prisons (BOP) agreed to pay $90,000 in attorney’s fees and expenses after losing a suit over the constitutionality of its byline regulation.

As previously ...

Colorado DOC Pays $60,000 Settlement for Suicide of Former Prisoner Who Was Sexually Abused by Guard

Colorado DOC Pays $60,000 Settlement for Suicide of Former Prisoner Who Was Sexually Abused by Guard

by John E. Dannenberg

The Colorado Department of Corrections (CDOC) settled a lawsuit brought by the family of a former prisoner who committed suicide a year after he paroled. The suit alleged that ...

Self-Help Legal Guides, Publisher, Rosemary Steele; 104 pages, Softbound

Self-Help Legal Guides, Publisher, Rosemary Steele; 104 pages, Softbound

Reviewed by David M. Reutter

Every prisoner has a legal problem. Solving that problem is very difficult, especially if the prisoner is in confinement. With the goal of creating a vehicle to assist prisoners in Florida’s confinement and close management units solve their problems, prisoner law clerk William Steele started creating legal guides. Out of that effort has arisen a compilation of federal and Florida case law that prisoners can easily store at hand.

Self-Help Legal Guides are divided into seven sections: 1) Nuts & Bolts for Post Conviction Relief; 2) Criteria for Challenging Appellate Counsel Representation; 3) Criteria for Belated Appeal; 4) Criteria for Withdrawing a Plea; 5) Criteria for Filing a Motion to Correct Illegal Sentence; 6) Criteria for Filing a Newly Discovered Evidence Claim; and 7) DR Checklist for a Successful Appeal.

When I first entered prison, I was overwhelmed when gazing upon all the books in the law library. Where does one start? In confinement, if you don’t know the exact case, key number, or issue you want information on, you are in serious trouble. Self-Help Legal Guides provides prisoners the information they need without seeking law ...

Sexual Abuse and Violence in Texas Prisons Eclipses National Average

Citing figures issued by the Bureau of Justice Statistics (BJS) a preliminary report by the Stop Prisoner Rape (SPR) initiative shows that Texas has five of the nation’s ten worst prisons for reported sexual violence. [SPR has changed its name and is now known as Just Detention International.] During the twelve months preceding they report these five prisons had rates of sexual abuse that ranged from 9.3 to almost 16 percent. The national average for the same period was 4.5 percent.

Of the 2.4 million prisoners nationwide one in five experiences some form of sexual abuse. The Safe Prisons Program is designed to ensure that prisoners at high risk for sexual assault and abuse are housed in a manner that ensures their safety yet still provides them with the same privileges as the general population.

The root of the problems in Texas stem from a dysfunctional classification system. On the worst units factors such as age, stature and sexual orientation are not taken into account when housing prisoners together. This results in vulnerable prisoners being manipulated or violently forced to have sex.

Once inside the system guards present a two-fold problem for at-risk prisoners. Many victims ...

$1.5 Million Settlement Provided to Immigrant Prisoner Who Lost Leg in Colorado Jail

$1.5 Million Settlement Provided to Immigrant Prisoner Who Lost Leg in Colorado Jail

by David M. Reutter

The insurance company for Colorado’s Park County Jail has agreed to settle a former prisoner’s medical neglect lawsuit for $1.5 million. The suit was brought by Moises Carranza-Reyes, who was held in the jail for an immigration violation.

Carranza-Reyes was arrested on March 1, 2003, while en route to Chicago to work with his father. He, and several others, were arrested after their truck was stopped because they were illegally in the United States.

They were all taken to the Park County Jail. After booking, Carranza-Reyes, a former Mexico City police sergeant, was crammed into a jail pod with 60 other prisoners. The pod, which was designed to hold 18 people, was being overfilled to make money in a leasing space scheme to house state and federal prisoners.

“Park County Jail attempted to boost its net revenues by cutting basic human essentials, such as medical care, heat, clean laundry, and clean housing,” said Carranza-Reyes’s lawyer [and PLN board member], Bill Trine, in 2005. “As a result of prison profiteering, we’re seeing human rights abuses that we’d never expect to see ...

$2.75 Million Settlement in New York Prisoner’s Loss of Sight Claim

The New York State Department of Correctional Services has agreed to pay $2.75 million to a prisoner who lost her eyesight due to deficient medical care by prison doctors.

The July 2007 settlement came in the civil rights action filed by prisoner Virginia Davis, who was born with hydrocephaly ...

New Jersey Fires 52 Prison Guards in 2007

Guards in New Jersey prisons have been found guilty of everything from smuggling drugs and cell phones to simply failing to show up for work. From 2005 to 2007, the New Jersey Department of Corrections (DOC) had to fire 154 of its guards; 52 were fired in 2007 alone.

“The department is very meticulous in policing itself,” said DOC spokeswoman Deirdre Fedkenheuer. “It’s important to note that incidents are not ignored and we deal with them swiftly and as efficiently as possible.”

Those “incidents” included two DOC employees who were terminated once they became the subject of criminal investigations. DOC guard Michael Bruinton was fired after being charged in Dec. 2007 with smuggling drugs, cell phones and Ipods to Blood street gang members and members of the Lucchese crime family at the East Jersey State Prison. He is accused of accepting $500 for each delivery.

Higher up on the DOC ladder, Gerald Kennedy was the assistant director over the prison system’s capital construction unit until it was discovered that he was steering contracts to companies that had been created by him and his friends. Kennedy and his cronies accumulated contracts worth $678,000 before the scheme was uncovered ...

$4.45 Million Verdict in Meningitis Death of Cook County Jail Prisoner

$4.45 Million Verdict in Meningitis Death of Cook County Jail Prisoner

by David M. Reutter

An Illinois federal jury awarded $4.45 million to the mother of a prisoner who died at the Cook County Jail. The verdict sent a strong message that ignoring prisoners’ serious medical conditions would ...

GEO Group Consultant Civilly Charged With Insider Trading

The Securities and Exchange Commission (SEC) has filed a civil action that alleges a consultant for private prisoner operator the GEO Group used information obtained through his contracts to engage in insider trading.

Zachariah P. Zachariah, a prominent cardiologist and Republican fund raiser from Broward County, Florida, has been a long time friend of GEO’s chairman and chief executive officer, George Zoley. That contact no doubt led to Zachriah obtaining consulting contracts with Geo through his two companies, the Zachariah Consulting Group, Inc., and ZPZ, Inc. Zechariah also leased a private airplane in which he had a beneficial interest to GEO for charter flights.

In addition to those inside contacts, Zachariah’s son, Reggie, was employed as a financial analyst for GEO’s mergers and acquisitions group. It is through these sources that Zachariah learned that GEO was about to acquire Correctional Services Corp., (CSC) a Florida company involved in the prison industry.

On May 11, 2005, Zachariah spoke to Reggie via telephone. The next day, Zachariah purchased 3,500 shares of CSC stock for about $9,700. He bought another 2,300 shares for approximately $6,000 on May 16. The best information, however, seemed to come from ...

U.S. Supreme Court Upholds Use of Lethal Injection

On April 16, 2008, the U.S. Supreme Court held that Kentucky’s lethal injection protocol does not violate the Eighth Amendment’s prohibition against “cruel and unusual punishment.”

Kentucky state prisoners Ralph Baze and Thomas Bowling were each convicted of double homicides and sentenced to death. Following the affirmance of their convictions and sentences through direct and collateral appeals, Baze and Bowling sued officials with the Kentucky Department of Corrections, seeking to have the state’s lethal injection protocol declared unconstitutional.

Kentucky, like 30 other states, uses three drugs in its execution protocol. The first drug, sodium thiopental, is a fast-acting sedative that induces a deep, coma-like unconsciousness. The second drug, pancuronium bromide, is a paralytic agent that inhibits all muscular-skeletal movements and stops respiration. Potassium chloride, the third drug, interferes with the electrical signals that cause contractions of the heart, inducing cardiac arrest. If the first drug is administered properly the prisoner does not experience any pain associated with the paralysis or cardiac arrest caused by the second and third drugs.

Baze and Bowling alleged that Kentucky’s protocol for administering the first drug created an “unnecessary risk” of pain in violation of the Eighth Amendment because the ...

Oregon Guards Wrongly Fired Win $1,000,000

Russell Rice and Larry Lytle, both career employees of the Oregon state Department of Corrections, were fired by Superintendent Frank Thomas of the Santiam Correctional Institute in early 2004. Both had long histories of exemplary performance. But they formally complained that Thomas, who was black, gave preferential treatment to black guards, which, since they were white, unfairly discriminated against them. It was shortly thereafter that Thomas began to harass them, finally firing them both. Rice and Lytle filed civil actions in state court.

The case went to trial on February 4, 2008, after which the jury awarded Rice $350,000 in economic damages and $250,000 in non-economic damages, and awarded Lytle $150,000 in economic damages and $250,000 in non-economic damages. The Guards were represented by Paul Meadowbrook and William Brandt, both of Salem Oregon. See: Rice v. State of Oregon, Marion County Superior Court No. 04C-19412.

Exonerated Florida Man Receives $1.25 Million

Exonerated Florida Man Receives $1.25 Million

Florida Gov. Charlie Crist signed an executive order on May 6, 2008, that awards Alan Crotzer $1.25 million for the 24 years he spent in prison for a rape and kidnapping conviction he did not commit. Crotzer was released in 2006 after DNA evidence exonerated him.

The order provides a $250,000 lump sum award. Crotzer will then receive monthly payments of $6,700 for the next 20 years. He will also receive a 4-year college tuition scholarship. Corotzer plans to major in social sciences.

“Freedom is priceless… money can never ever replace freedom in any way in the world, so my freedom is everything and money is just a tool to rebuild my life,” said Cortzer. “It’s a good feeling for me because I know that I’m giving hope and not only to the inmates, but also the families to see me because God did bless me. He’s been working with me continuously to do so and it gives them hope, and that’s a good thing because in (prison) you have nothing.”

Crotzer said he is going to continue advocating for people who may be in similar situations as ...

Helping Ex-Prisoners Find Jobs Has Become Important to the Government, Finally

Helping Ex-Prisoners Find Jobs Has Become Important to the Government, Finally

by Derick Limberg

The federal government and some cities are making an effort to help ex-cons receive job training and get hired. Besides tax incentives, some companies are making a concerted effort to hire disadvantaged people which includes ex-convicts.

A tax break of $2,400 is given by the federal government to employers who hire parolees. In addition, the city of Philadelphia recently announced a program in which employers could receive a $10,000 tax break for each ex-offender hired. “The best anticrime package includes giving people a good job,” says Everett Gillison, Philadelphia’s, Deputy for Public Safety.

Representative, Danny K. Davis, D-IL, co-sponsored the Second Chance Act, a bipartisan bill signed into law by President Bush authorizing $165 million annually to curb recidivism, including money to train ex-prisoners for jobs. Department of Justice statistics show that about 700,000 prisoners are released each year and around two-thirds of those are expected to return to prison within 3 years. The commitment to the Second Chance Act remains questionable because, as this issue of PLN goes to press, the government has yet to actually fund the Second Chance Act ...

Pennsylvania Jail Rebuffs Calls for Independent Review of Abuse Claims

Pennsylvania Jail Rebuffs Calls for Independent Review of Abuse Claims

by David M. Reutter

Jails and prisons are often located in areas hidden from public view, and as a result often become extremely insular. Those who work within such insular cultures resist efforts to have their “dirty laundry” exposed. Thus, when officials at Pennsylvania’s Washington County Correctional Facility resisted a call for an independent review into the jail’s policies and procedures, their resistance was only natural. That does not, however, mean it was the correct reaction.

Washington County Commissioner and prison board member Diane Irey said the 600 complaints she has received over the past 12 years demonstrate the problems that exist behind the jail’s insular nature. Hundreds of those accusations involved sexual and physical abuse of prisoners, yet internal investigations found every one of those complaints to be without merit.

“It’s amazing to me that there’s never an employee found to be at fault with those investigations,” Irey said. “I think the public trust of the way things are handled at the jail is questionable.” On April 16, 2008, Irey asked the prison board to explore how an outside review of the jail could be conducted.

While ...

$290,000 Award for New York Prisoner’s Slip and Fall on Ice

On December 4, 2007, a New York Court of Claims awarded a former prisoner $290,000 for injuries he received when he slipped and fell on ice at a New York state prison.
In January 2001, Gene Sullivan was incarcerated at Arthur Kill Correctional Facility in Richmond County, New York ...

Strip Search Policy E-mails Were Attorney-Client Communications, but Privilege Is Waived

Strip Search Policy E-mails Were Attorney-Client Communications, but Privilege Is Waived

The Court of Appeals for the Second Circuit has granted a writ of mandamus, directing a lower court to vacate an order compelling production of communications protected by attorney-client privilege. The appellate court also instructed the court below to determine whether the privilege was otherwise waived. On remand the district court first denied production of the disputed communications, but upon reconsideration found the attorney-client privilege was waived.

In 2004, a class action suit was commenced in a New York federal court alleging that the Erie County Correctional Facility strip search policy requiring “an invasive strip search, without regard to individualized suspicion or the offense alleged … violates the Fourth Amendment.”

During the discovery process the County withheld production of certain e-mail messages and other documents as privileged attorney-client communications. Plaintiffs moved to compel production of the documents. The district court conducted an in camera inspection and, in January 2006, ordered production of ten withheld e-mail messages which “reviewed the law concerning strip searches of detainees, assessed the County’s current search policy, recommended alternative policies, and monitored the implementation of these policy changes.”

The County objected, but on ...

Florida Jail Supervisors Investigated in Fraudulent Overtime Scheme

Florida Jail Supervisors Investigated in Fraudulent Overtime Scheme

An investigation at Florida’s West Palm Beach County Jail has revealed that top-ranked officials used their positions to obtain fraudulent overtime payments. What started as an internal investigation into a deputy’s complaint has morphed into a criminal investigation that has resulted in suspensions, an arrest and the specter of additional criminal charges.

The scheme may have been going on for several years, involving numerous jail employees. In just the last year, it is estimated the cost to the County was $350,000. “Fifteen minutes into it, I realized this is criminal,” said internal affairs Capt. Robert Van Reeth.

The matter was turned over to financial crimes detectives. The reason for relinquishing control of the investigation to an outside agency was because statements made during internal affairs investigations may not be admissible in court.

As of May 2008, Lt. Sandra Nealy, Lt. George Behar, Lt. Darrin McCray, Sgt. Edy Velasquez, Sgt. Faulton Kemph, Sgt. John McCaffrey and Sgt. Kathy Dent had been placed on administrative leave. They are suspected of participating in an organized scheme to defraud, a second-degree felony, and official misconduct, a third-degree felony.

Nealy was charged with organized scheme ...

$25,000 Award To South Carolina Prisoner Injured Performing Community Service

$25,000 Award To South Carolina Prisoner Injured Performing Community Service

A South Carolina court entered an award of $25,000 to a prisoner who was working community service on a trash truck when his foot was run over by a car.

James Everette Ford, 35, was a prisoner assigned ...

New Hampshire Prisoner’s ADA Claim Survives Summary Judgment

The First Circuit Court of Appeals reversed a New Hampshire federal district court’s summary judgment order that concluded a prisoner had failed to demonstrate prison officials violated his rights under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134.

While imprisoned at the New Hampshire State Prison (NHSP), prisoner Matthew Kiman began exhibiting signs of a disability in 1997. He first experienced numbness and pain in his left leg and buttocks, and met with NHSP’s nurse and physical therapist several times between October and December 1997. On December 17, he reported having weakness and pain in his left shoulder. He was paroled to serve a sentence in Massachusetts and missed an appointment on January 8, 1998 to see NHSP’s doctor.

While incarcerated he received several medical orders that he alleged the prison staff failed to follow, including a “front cuff pass” for when handcuffs were applied, a lower bunk pass, and an order for the use of a shower chair. Kiman further claimed that he didn’t receive his prescribed medication when he was supposed to.

After his release from prison, Kiman had an April 1998 appointment with Dr. Jay Smith, who ...

Native American Reservations in Dire Need of Better Jails, Get Money to Build More

Native American Reservations in Dire Need of Better Jails, Get Money to Build More

In August 2008, the Bureau of Indian Affairs (BIA) closed its jail in Pine Ridge, South Dakota due to deteriorating conditions, saying the jail was unsafe for prisoners and guards alike. The prisoners were temporarily transferred to the tribal-owned Convicted Offenders Facility. “The BIA deemed the old jail unsafe for human occupation because of health and safety, and security issues,” stated Joe Herman, Oglola Sioux Tribe Police Chief.

U.S. Senator John Thune said Native American reservations in South Dakota and other states are facing an ever-increasing problem with their criminal justice systems. Thune has been pushing for more money for justice-related resources on reservations; he lobbied for an amendment to a spending bill that would provide federal funds for Native American law enforcement programs, including detention centers.

“It sounds like that jail was just a train wreck in terms of a facility,” said Thune. “There has been so much neglect for such a long time we have detention facilities on the reservations that are in complete states of despair.” The BIA plans to build a temporary detention center at Pine Ridge while ...

Ohio Man Receives $600,000 for Wrongful Imprisonment

During mediation, a settlement of $600,000 was reached between Kenneth Moore and the State of Ohio in a claim of wrongful imprisonment. Moore had sued Ohio for damages incurred in his defense at trial and post-conviction proceedings related to the criminal charges, damages for the time period he was ...

Seventh Circuit: Delayed Medical Care Because Doctor Attended New Year’s Party Constitutes Deliberate Indifference

The Seventh Circuit U.S. Court of Appeals has upheld a prisoner’s Eighth Amendment complaint of deliberate indifference to his serious medical condition when he alleged that the prison doctor called to treat his injuries chose to attend a New Year’s party instead of providing prompt medical treatment.

Wayne Edwards, incarcerated at Big Muddy River Correctional Center in Illinois, injured his finger while playing basketball on New Year’s Eve in 2000. The injury dislocated a bone, pushing it severely backwards and puncturing the skin. Dr. Brian Ruiz was not at the prison but responded to nurses’ calls two hours later to admit Edwards to the infirmary. The doctor did not order X-rays or reset the bone; instead he only prescribed antibiotics and pain medication until after the New Year’s holiday. On January 2, Dr. Ruiz surgically reset Edwards’ finger and ordered physical therapy.

In early 2001, Edwards filed a grievance claiming that the delayed and insufficient treatment of his finger left him disfigured and with impaired mobility. After his grievance was denied he filed suit. His 42 U.S.C. § 1983 complaint was dismissed as frivolous by the U.S. District Court (S.D. Ill.) on ...

South Dakota Guard Liable for Prisoner’s Electrocution Death

The Eighth Circuit Court of Appeals has held that a prison work crew guard was not entitled to qualified immunity in an Eighth Amendment suit alleging he failed to protect a prisoner from death by electrocution due to a downed power line.

This lawsuit, brought by the estate of South Dakota prisoner Neil Ambrose, was filed against three prison officials: Major Darin Young, Warden Douglas Weber and Maintenance Supervisor Mark Tisland.

South Dakota’s Department of Corrections (SDDOC) maintains emergency response teams (ERTs) to respond to natural disaster clean-up sites. Ambrose was qualified and participated in the ERT program, which could result in a sentence reduction by the Governor upon recommendation by SDDOC. The only training he received was watching a chainsaw safety video.

In late July 2002, severe storms damaged property in Sinai, South Dakota. SDDOC sent several ERTs to assist in removing downed trees and other debris. Because Tisland lived in Sinai, he offered to assist in the clean-up. Young supervised the prisoners on the Sinai ERT work crews.

At approximately 3:45 p.m. on July 31, 2002, Ambrose’s ERT was working on Tisland’s property. A dump truck with its truck box lifted drove under ...

Legal Financial Obligation Deductions Imposed on All Washington Prisoners

In a 5-4 ruling, the Supreme Court for the State of Washington has held that the Washington Department of Corrections (WDOC) has authority to collect court-ordered legal financial obligations (LFOs) from all prisoners, regardless of sentence, from non-work related income.

Before the Court was an action brought by Clallam Bay Corrections Center prisoners John Anderson and Frank Nordlund, both of whom were sentenced to life without parole or release (LWOP). Their lawsuit argued that LFO deductions are not allowed under Washington law when a prisoner is serving an LWOP sentence or has been sentenced to death.

The Clallam County Superior Court dismissed the suit and the prisoners appealed. Division Two of the Court of Appeals, on its own motion, certified the case to the Supreme Court. Anderson and Nordlund agreed to be represented on appeal by counsel from the University of Washington Law School.

In 2003, WDOC began taking 20 percent of non-work related income deposited into prisoners’ accounts from outside sources to satisfy LFOs. In May 2004 that policy was suspended, but it resumed in September 2004. WDOC contended that LFO deductions from non-work related income were mandatory for all prisoners regardless of sentence.

At issue were several statutes ...

Massachusetts DOC Ordered to Provide Vegan Meals to Buddhist Prisoner

Massachusetts DOC Ordered to Provide Vegan Meals to Buddhist Prisoner

On June 11, 2008, following a non-jury trial in an action brought under the Religious Land Use and Institutionalized Persons Act (RLUIPA), a U.S. District Court directed the Commissioner of the Massachusetts Department of Corrections (DOC) to provide a Buddhist prisoner with a vegan diet.

Daniel Yeboah-Sefah, a devout practitioner of the Quan-Yin Pure Land method of Buddhism, sued the DOC under RLUIPA alleging that his sincerely held religious beliefs were substantially burdened by the DOC’s refusal to accommodate his dietary needs.

Under the Quan-Yin Pure Land method of Buddhism, practitioners are prohibited from “taking the life of Sentient Beings.” Adhering to this precept requires strict observance of a vegan diet.

Over the course of six years, Yeboah-Sefah made repeated requests to the DOC for vegan meals. Unfortunately his requests were met with ridicule, laughter and verbal abuse by prison officials.

Eventually the DOC offered Yeboah-Sefah a “Lacto-diet,” but that was unacceptable because it required him to eat eggs and dairy products, and was prepared with utensils that came into contact with prohibited foods.

Yeboah-Sefah asked prison officials to provide him with a vegan diet by contracting ...

Tenth Circuit: Procedural Defense to Federal Prisoner’s ETS Suit Fails on Inadequate Grievance Record-Keeping

Tenth Circuit: Procedural Defense to Federal Prisoner’s ETS Suit Fails on Inadequate Grievance Record-Keeping

by John E. Dannenberg

The Tenth Circuit U.S. Court of Appeals reversed a summary judgment order in a federal prisoner’s pro se Environmental Tobacco Smoke (ETS) suit against private prison contractor Cornell Corrections, Inc., because Cornell’s grievance record-keeping was so inadequate that the question of administrative exhaustion could not be resolved.

In reversing the lower court, the Tenth Circuit noted that the intervening U.S. Supreme Court decision in Jones v. Bock, 127 S.Ct. 910 (2007) [PLN, May 2007, p.36] made the burden of proving exhaustion an affirmative defense, which overruled prior Tenth Circuit precedent.

Federal prisoner Ethan Roberts was housed in Cornell Corrections’ Santa Fe [New Mexico] County Adult Detention Center from April 1999 to June 8, 2000. He sued Cornell on June 9, 2003 in U.S. District Court under 42 U.S.C. § 1983 for irreparable lung damage caused by his exposure to saturated ETS 14-20 hours per day. Cornell defended on two grounds: That the statute of limitations had expired and Roberts had not exhausted administrative remedies. The district court dismissed the case on Cornell’s motion for summary ...

Ninth Circuit: Statutory Increase in Restitution Payment Rate Does Not Violate Plea Agreement and is Not Ex Post Facto

Ninth Circuit: Statutory Increase in Restitution Payment Rate Does Not Violate Plea Agreement and is Not Ex Post Facto

The Ninth Circuit Court of Appeals, in a California state prisoner’s challenge to statutory amendments that increased the rate of collections for restitution fines from 20% of prison wages to 50%, upheld the U.S. District Court’s (N.D. Cal.) dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim.

As part of a 1989 plea agreement, Alvin Quarles agreed to pay a restitution fine of $10,000, to be collected pursuant to California Penal Code § 2085.5. At that time, § 2085.5 included a 20% cap for deductions from prisoners’ wages. In 1992, § 2085.5 was amended to increase the cap to 50%. Quarles objected when he was subsequently dunned 33% for restitution payments; he filed suit, which was dismissed by the district court.

The Ninth Circuit denied Quarles’ ex post facto claim because the amended statute “did not impose additional punishment.” His punishment was the amount of the fine, not its rate of collection. Similarly, the Court rejected Quarles’ claim that his plea agreement, which was based upon § ...

EAJA Permits Recovery of Fees for Paralegal Services at Market Rates, US Supreme Court Holds

EAJA Permits Recovery of Fees for Paralegal Services at Market Rates, US Supreme Court Holds

The Equal Access to Justice Act (EAJA) authorized prevailing parties to obtain reimbursement of fees expended on paralegal services at market rates, the U.S. Supreme Court held June 2, 2008.

Richlin Security Service Co., a contract security provider for the federal government, won a contract dispute in the Department of Transportation’s Board of Contract Appeals (Board) against the government. Thereafter, Richlin sought $45,145.10 in fees under the EAJA for paralegal work performed on its contract claim and $6,760 for paralegal work performed on the EAJA application itself.

The Board granted Richlin’s fee request in part. While the EAJA authorizes recovery of fees for paralegal services, reimbursement is limited to the actual cost for such work, the Board held, as opposed to the rate billed by a law firm. Accordingly, the Board limited Richlin’s fee recovery for paralegal services to $35 per hour, the average hourly wage for a paralegal in Washington, D.C., instead of $50 to $95 per hour, the prevailing market rates.

Richlin appealed the Board’s decision to the U.S. Court of Appeals for the Federal Circuit. A ...

New York Sex Offenders’ Settlement Agreement Superseded by New Registration Law

New York Sex Offenders’ Settlement Agreement Superseded by New Registration Law

The Second Circuit U.S. Court of Appeals dealt a blow to sex offenders in New York state when it ruled that despite an earlier suit and settlement agreement that required sex offender registration procedures to be consistent with earlier laws, new and harsher registration laws enacted by the state superseded the offenders’ hard-won settlement.

New York first enacted Sex Offender Registration Act (SORA) laws in 1996. The least restricted SORA class registrants could discharge their “scarlet letter” burden after ten years; the mid-level class also had to wait 10 years but were subject to enhanced community notification, while the most restricted class (predators) had to register for life. A group of sex offenders sued to challenge the 1996 law on Ex Post Facto grounds, but lost. See: Doe v. Pataki, 120 F.3d 1263 (2nd Cir. 1997).

In March 2002 the SORA classification process was procedurally changed, which created three new categories that required lifetime registration. Dissatisfied, the offenders sued again, this time on due process grounds, and entered into a Stipulation Agreement with the state in June 2004. The Agreement provided for proper hearing processes and preserved ...

Tenth Circuit Follows Jones v. Bock, Reverses Full-Exhaustion Predicate in § 1983 Cases

by John E. Dannenberg

The Tenth Circuit U.S. Court of Appeals realigned its jurisprudence to comport with the U.S. Supreme Court ruling in Jones v. Bock, 127 S.Ct. 910 (2007) [see: PLN, May 2007, p.36], which held that failure to exhaust administrative remedies in a prisoner’s 42 U.S.C. § 1983 civil rights action is an affirmative defense. The Tenth Circuit had previously held, in Steele v. Federal Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003), that exhaustion is a burden that falls to the prisoner to plead and prove in the initial complaint.

Colorado state prisoner Russell Freeman appealed a U.S. District Court’s dismissal of his § 1983 complaint that alleged six violations of his constitutional rights: due process denial in disciplinary convictions, cruel and unusual punishment in conditions of confinement, retaliation, ethnic discrimination, loss of property, and denial of access to the courts. The district court found that Freeman had at most exhausted his administrative remedies as to just one of the six claims. Following Tenth Circuit precedent, the court dismissed the entire complaint without prejudice to either Freeman’s full exhaustion or his voluntary withdrawal of the five unexhausted ...

Washington Court Invalidates Pretrial Substance Abuse Conditions

The Court of Appeals for the State of Washington has held that pretrial conditions for release on personal recognize that require a defendant to undergo an alcohol evaluation, comply with any recommended treatment and attend three weekly self-help meetings were not authorized by court rule and violated the United States and Washington Constitutions.

Robert Butler was charged with a DUI after he rear-ended a King County Sheriff’s vehicle. A test revealed that Butler had a blood alcohol reading of .20. When released on his own recognizance, the state district court imposed the above conditions for Butler to remain on release pending trial. A superior court denied Butler’s habeas petition challenging the conditions, but entered an order prohibiting the state from using any statements he might make during the evaluation against him.

The appellate court found that the pre-release conditions amounted to post-conviction penalties that might be imposed on a probationer. The Court stated such requirements “could involve serious restrictions on [Butler’s] constitutional rights.” Specifically, the Court found the conditions were “direct commands” that constrained Butler’s right to autonomous decision making, his right against self-incrimination and his right to confidentiality.

When Butler tried to comply with the ...

No Filing Fee Lien Allowed in Florida Mandamus Cases

In two rulings, Florida’s First District Court of Appeal has held a circuit court departed from the essential elements of law when it placed a lien on a prisoner’s trust account to satisfy the filing fee for a mandamus petition.

Florida prisoner James P. Anderson filed a mandamus petition challenging the Department of Corrections’ recalculation of his maximum sentence expiration following revocation of his release on conditional supervision. The First District held the Leon County Circuit Court’s denial of the petition on its merits was proper.

However, the appellate court found that because Anderson’s challenge was effectively one related to the length of his sentence, it was a collateral criminal proceeding that was exempt from Florida’s Prisoner Indigency Statute. Thus, the case was remanded to remove the lien placed upon Anderson’s prison trust account and to refund any payments that had been taken to satisfy the lien. See: Anderson v. McDonough, 958 So.2d 1110 (Fla.App. 1 Dist., 2007).

In a separate case, the First District Court of Appeal found no distinction between an action challenging the loss of gain-time for disciplinary proceedings and gain-time forfeited for other reasons under Florida’s Prison ...

News in Brief:

Arkansas: On June 9, 2008, Rolanda Barron, 33, the director of nursing at the Tucker unit prison was arrested after a search disclosed she was smuggling tobacco into the prison as well as cell phones, cell phone chargers and batteries, all of which are prohibited in the maximum security prison. Barron is employed by Correctional Medical Services which is contracted to provide medical care at the prison.

Brazil: On June 2, 2008, police raided the Salvador prison cell of alleged drug kingpin Genilson Lino da Silva and confiscated: a plasma TV, a DVD player, two refrigerators, several guns, gym equipment, $172,000 in cash and his king sized bed. Paulo Gomes, a state prosecutor said: “We will investigate if the leaders of the prison were conniving in this.”

California: In the last week of May, 2008, prison officials halted transfers and extended family visits after numerous prisoners were diagnosed with syphilis. All the prisoners lived in the same living unit.

California: On June 17, 2008, 40 prisoners at the Pelican Bay State Prison were involved in a fight that left several prisoners stabbed and at least one shot by guards.

California: On June 3, 2008, over 300 prisoners were involved ...

$635,000 Settlement in Wisconsin Woman Prisoner’s Suicide

The family of a Wisconsin prisoner who committed suicide has agreed to accept a $635,000 payment from the state to settle a federal lawsuit. The suit claimed that Taycheedah Correctional Institution (TCI) prisoner Angela Enoch was able to strangle herself with torn pieces of her pillow despite pleading for ...

 

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