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Prison Legal News: January, 2009

Issue PDF
Volume 20, Number 1

In this issue:

  1. Prisoners Exposed to Toxic Dust at UNICOR Recycling Factories (p 1)
  2. From the Editor (p 6)
  3. Allegations of Contraband Smuggling, Sex and Corruption at Texas Prison (p 6)
  4. Organizing for Freedom: Resistance at Angola State Penitentiary, Louisiana’s Last Slave Plantation (p 8)
  5. U.S. Homeland Security Illegally Drugged Immigrants for Deportation (p 10)
  6. Connecticut DOC Settles Prisoner’s Brutal Beating By Ten Guards For $500,000 (p 11)
  7. Multiple Incidents Indicate Florida Jail Has Culture of Abuse (p 12)
  8. Prisoners’ Death Rate Report Indicts Prison Medical Care by Implication (p 12)
  9. Welcome to Fun Day: Crime and Punishment in the United States (p 14)
  10. Cook County Jail Conditions Unconstitutional, Charges Department of Justice (p 16)
  11. CMS Fails to Treat MRSA Infection; Florida Jail Prisoner Dies (p 17)
  12. Oregon Juvenile Facility Warden Indicted; Youth Authority Director Resigns (p 18)
  13. Violence and Corruption at Rikers Island; Called a “Battle Camp for Kids” (p 20)
  14. Former PHS Doctor Arrested on Drug Charges (p 21)
  15. Prison Health and Self-Care: MRSA (p 22)
  16. Cold Case Hits Use Vastly Exaggerated DNA “Match” Statistics; Upheld by California Supreme Court (p 24)
  17. $885,437.24 Award for CMS Massachusetts Jail Nurse Barred for Reporting Prisoner Abuse (p 25)
  18. 115,000 Florida Ex-Felons Have Civil Rights Restored Under New Rules (p 26)
  19. Texas Prison Guard Files False Report, Faces 20 Years (p 26)
  20. Los Angeles County Settles For $900,000 After Unattended Prisoner Savagely Beaten By Violent Jail Gang (p 27)
  21. Texas Prisoners Pay Parole Consultants Hefty Fees (p 28)
  22. TASER Avoids Liability in Three Deaths by Suing Medical Examiner (p 28)
  23. $3,540,402.22 Jury Award In California Wrongful Conviction Case (p 30)
  24. PR Bonds Plummet in Harris County, Texas as Jail Overflows (p 30)
  25. Nurse Pleads Guilty in Death of Florida Juvenile Prisoner (p 31)
  26. Ohio Court Finds Three-Drug Execution Protocol Violates Prisoners’ State Rights (p 32)
  27. Florida Prison Employees Awarded $630,000 for Subjection to Prisoner “Gunners” (p 32)
  28. Demonstrators Supporting Guantanamo Prisoners in Front of U.S. Supreme Court Found Guilty of Unlawful Assembly (p 33)
  29. $170,000 Jury Verdict in Sacramento Jail Beating (p 34)
  30. Costs for San Quentin’s Proposed New Death Row Spiral Upward (p 34)
  31. Washington State’s Criminal Libel Statute Held Unconstitutional; Prisoner Disciplinary Conviction Vacated (p 36)
  32. Florida Sheriff Sued for Awarding No-Bid Health Care Contract, Receiving Gifts (p 36)
  33. Civil Commitment Provisions of Adam Walsh Act Held Unconstitutional (p 37)
  34. PHS Receives Three-Year $366 Million Rikers Island Medical Care Contract Renewal Despite Non-Performance Fines for Last Three Years (p 38)
  35. Washington Jail Remodel Violated State Law, at a Cost of $51.6 million (p 38)
  36. Michigan Escape is Not “Violent Felony” for ACCA Purposes (p 39)
  37. Jail Nurse Guilty of Forging Doctor’s Order; Forged Orders Common Jail Practice (p 40)
  38. $7 Million in Settlements in Colorado Jail Prisoner’s Death from Medical Negligence (p 40)
  39. Ohio Jail Guard’s Excessive Force Conviction Affirmed (p 41)
  40. $1,100,000 Settlement in Juvenile Prisoner Suicide in Union County, New Jersey (p 42)
  41. Will California’s $11 Billion Prison Outlay Survive State Budget Cuts? (p 42)
  42. Second Circuit Recognizes Attorney-Client Privilege in Prisoner’s Journal in Prosecution of Rapist Guard (p 43)
  43. Rape of Child by Former Washington DOC Director’s Son Spawns Departmental Crisis (p 44)
  44. Ex-Con Exposed – Had Posed as a Lawyer (p 44)
  45. $5 Million Settlement For Illegal Strip Searches In Las Cruces, NM Jail (p 45)
  46. New Jersey Court Enters Preliminary Injunction Barring Women Prisoners at Men’s Prison (p 46)
  47. PEW Report: 1 in 99 Adult Americans Behind Bars In 2007 (p 46)
  48. Maryland DOC Pays $500,000 for Detainee Beaten to Death By Guards (p 47)
  49. $7,025 Award in Slip and Fall From Ohio Prison Bunk (p 47)
  50. Georgia Sheriff Must Give Revenue from Prisoner Phone Calls to County (p 48)
  51. Beleaguered Oregon Sheriff Steps Down (p 48)
  52. Violence at Oklahoma Prisons Leaves Two Dead, Twenty-Five Injured (p 49)
  53. News in Brief: (p 50)
  54. Sixth Circuit Now Permits § 1983 Complaint to Proceed Even If Prisoner Did Not Initially Plead Exhaustion Below (p 52)

Prisoners Exposed to Toxic Dust at UNICOR Recycling Factories

Federal Prison Industries (FPI), the largest legal sweatshop in America, has jeopardized the lives and safety of untold numbers of prisoners and staff working in its recycling factories, according to a preliminary report in an investigation by the Justice Department’s Office of the Inspector General (OIG), and an evaluation ...

From the Editor

Welcome to the first issue of PLN for 2009. For the new year we are introducing a new quarterly column in PLN called Prison Health and Self Care by Dr. Michael Cohen. Dr. Cohen is a doctor who has extensive experience working with prisoners in state prisons and jails and ...

Allegations of Contraband Smuggling, Sex and Corruption at Texas Prison

Allegations of Contraband Smuggling, Sex and Corruption at Texas Prison

by Matt Clarke

The Inspector General’s office of the Texas Department of Criminal Justice (TDCJ) has been investigating numerous cases of corruption at the 1,555-bed Terrell Unit near Rosharon, Texas. The allegations include sex between prisoners and guards, as ...

Organizing for Freedom: Resistance at Angola State Penitentiary, Louisiana’s Last Slave Plantation

Organizing for Freedom: Resistance at Angola State Penitentiary, Louisiana’s Last Slave Plantation

by Jordan Flaherty

At the heart of Louisiana’s prison system sits the Louisiana State Penitentiary at Angola, a former slave plantation where little has changed in the last several hundred years. Angola has been made notorious from books ...

U.S. Homeland Security Illegally Drugged Immigrants for Deportation

Until recently, immigrants destined for deportation due to their illegal residency status in the United States faced the possibility of being drugged before leaving. Since 2003, there have been more than 250 cases where psychotropic drugs were inappropriately administered to deportees, according to an investigative report by the Washington Post ...

Connecticut DOC Settles Prisoner’s Brutal Beating By Ten Guards For $500,000

Connecticut DOC Settles Prisoner’s Brutal Beating By Ten Guards For $500,000

The Connecticut Department of. Corrections (CDC) settled for $500,000 the civil rights complaint brought by a prisoner who was brutally assaulted by ten CDC guards solely for their sadistic pleasure. While the settlement stipulates “no admission of ...

Multiple Incidents Indicate Florida Jail Has Culture of Abuse

Multiple Incidents Indicate Florida Jail Has Culture of Abuse

Three recent incidents at the Hillsborough County Jail in Tampa, Florida demonstrate a culture of abuse at the facility. One of the incidents involved a guard dumping a quadriplegic prisoner from his wheelchair, which was caught on videotape.

When Brian Sterner ...

Prisoners’ Death Rate Report Indicts Prison Medical Care by Implication

Prisoners’ Death Rate Report Indicts Prison Medical Care by Implication

by David M. Reutter

A report by the US Department of Justice’s Bureau of Justice Statistics has issued a report on the 12,129 state prisoners’ deaths reported between 2001 and 2004. That report examined the circumstances and causes of ...

Welcome to Fun Day: Crime and Punishment in the United States

Doing Time Together: Love and Family in the Shadow of the Prison. By Megan Comfort. University of Chicago Press. 256 pp. $55.00 cloth. $22.00 paper.

Race, Incarceration, and American Values. By Glenn C. Loury with Pamela Karlan, Tommie Shelby, and Löic Wacquant. MIT Press. 88 pp. $14.95 ...

Cook County Jail Conditions Unconstitutional, Charges Department of Justice

Cook County Jail Conditions Unconstitutional, Charges Department of Justice

by David M. Reutter

On July 11, 2008, the U.S. Department of Justice’s Civil Rights Division issued a letter to officials at Illinois’ Cook County Jail (CCJ) which found that conditions at CCJ violated the constitutional rights of prisoners held ...

CMS Fails to Treat MRSA Infection; Florida Jail Prisoner Dies

When Dorothy Dian Palinchik was booked into Florida’s Pinellas County Jail (PCJ) on February 13, 2008 for stealing a $9.00 Philly cheesesteak sandwich from a grocery store, she was seemingly healthy. Two weeks later she died of pneumonia and an antibiotic-resistant staph infection.

Palinchik’s family suspects she ...

Oregon Juvenile Facility Warden Indicted; Youth Authority Director Resigns

Oregon Juvenile Facility Warden Indicted; Youth Authority Director Resigns

by Mark Wilson

From 2000 to 2007, Darrin Humphreys served as warden of the RiverBend Youth Detention Center, a 50-bed Oregon Youth Authority (OYA) facility in LaGrande, Oregon.

Supervisors were so impressed with his performance that they promoted him to head ...

Violence and Corruption at Rikers Island; Called a “Battle Camp for Kids”

Violence and Corruption at Rikers Island; Called a “Battle Camp for Kids”

by David M. Reutter

While there have been no escapes and only two suicides in the past year at New York City’s Rikers Island, the nation’s largest jail system – which houses 13,900 prisoners – is under ...

Former PHS Doctor Arrested on Drug Charges

Former PHS Doctor Arrested on Drug Charges

In July 2008, former Prison Health Services (PHS) employee John N. Mubang, 57, was arrested by the Florida Department of Law Enforcement for prescribing drugs for monetary gain and trafficking in controlled substances.

The six-month investigation that led to the four felony counts ...

Prison Health and Self-Care: MRSA

by Michael D. Cohen MD

Introduction

There is much concern among prisoners about skin infections caused by a well-publicized germ called MRSA. This article explains what MRSA is, what you can do to protect yourself from MRSA, and how to take care of yourself if you get a skin infection ...

Cold Case Hits Use Vastly Exaggerated DNA “Match” Statistics; Upheld by California Supreme Court

Cold Case Hits Use Vastly Exaggerated DNA “Match” Statistics; Upheld by California Supreme Court

by Matt Clarke

A recent California murder trial has highlighted serious problems in the probability statistics used to determine the odds of DNA matches in cases that involve DNA database searches. However, the California Supreme Court ...

$885,437.24 Award for CMS Massachusetts Jail Nurse Barred for Reporting Prisoner Abuse

$885,437.24 Award for CMS Massachusetts Jail Nurse Barred for Reporting Prisoner Abuse

A Massachusetts federal court awarded $885,437.24 in compensatory damages, punitive damages, costs, attorney fees and electronic litigation support fees to a Correctional Medical Services (CMS) nurse who was barred from the Suffolk County jail ...

115,000 Florida Ex-Felons Have Civil Rights Restored Under New Rules

Changes to Florida’s rules for restoration of civil rights were made in April 2007; since that time, 115,232 former felons have had their rights to vote, serve on juries, run for office, and obtain various business licenses restored. That number accounts for more than half of all the ...

Texas Prison Guard Files False Report, Faces 20 Years

Texas Prison Guard Files False Report, Faces 20 Years

by Gary Hunter

Former Texas prison guard Eugene Morris, Jr. was found guilty of filing a false report about a use of force incident involving state prisoner Robert Tanzini. Morris was a sergeant at the Texas Department of Criminal Justice’s (TDCJ ...

Los Angeles County Settles For $900,000 After Unattended Prisoner Savagely Beaten By Violent Jail Gang

Los Angeles County Settles For $900,000 After Unattended Prisoner Savagely Beaten By Violent Jail Gang

Los Angeles County paid $900,000 to settle the civil rights complaint brought by the parents of a 41-year-old man who was beaten and crippled on June 7, 2005 by a known violent jail ...

Texas Prisoners Pay Parole Consultants Hefty Fees

Many Texas prisoners seeking parole are paying large fees to attorneys acting as parole consultants, in an attempt to increase the likelihood of gaining release. In 2007, 22,364 Texas prisoners were paroled. About ten percent – or 2,168 – had hired one of 769 attorneys registered as parole consultants.

One ...

TASER Avoids Liability in Three Deaths by Suing Medical Examiner

TASER Avoids Liability in Three Deaths by Suing Medical Examiner

by John E. Dannenberg

Arizona-based TASER International, Inc. (TASER) was cleared of liability in the unrelated deaths of three drug-afflicted Ohio men who died shortly after being shocked with X-26 Taser stun guns during their apprehension by police. TASER had ...

$3,540,402.22 Jury Award In California Wrongful Conviction Case

A California federal jury awarded $2 million to a man imprisoned 12 years for a rape/robbery he did not commit. The court also awarded him $1,368,834 in attorney fees, $6,500 in fees on fees, and $165,067.22 in costs (including $40,363.35 in travel ...

PR Bonds Plummet in Harris County, Texas as Jail Overflows

PR Bonds Plummet in Harris County, Texas as Jail Overflows

by Gary Hunter

Republican judges elected on promises to be tough on crime and the absence of federal oversight have been cited as two reasons why Houston, Texas jails are once again dangerously overcrowded.

Less than a decade ago, the ...

Nurse Pleads Guilty in Death of Florida Juvenile Prisoner

A former nurse at Florida’s Miami Regional Juvenile Detention Center has pled guilty to a misdemeanor charge of culpable negligence related to the death of a teenage prisoner. The guilty plea comes five years after the death of 17-year-old Omar Paisley.

While detained on a battery charge, Paisley begged ...

Ohio Court Finds Three-Drug Execution Protocol Violates Prisoners’ State Rights

Ohio Court Finds Three-Drug Execution Protocol Violates Prisoners’ State Rights

On June 10, 2008, Judge James J. Burge of the Lorain County Court of Common Pleas has held that the three-drug protocol used by the Ohio Department of Rehabilitation and Correction (DORC) to execute prisoners violates their right under Ohio ...

Florida Prison Employees Awarded $630,000 for Subjection to Prisoner “Gunners”

Florida Prison Employees Awarded $630,000 for ?Subjection to Prisoner “Gunners”

On May 15, 2008, a federal jury awarded $45,000 to each of 14 former female employees at Florida’s Martin Correctional Institution, finding the women had been subjected to lewd behavior by prisoners. The women claimed the Florida Department ...

Demonstrators Supporting Guantanamo Prisoners in Front of U.S. Supreme Court Found Guilty of Unlawful Assembly

Demonstrators Supporting Guantanamo Prisoners in Front of U.S. Supreme Court Found Guilty of Unlawful Assembly

On May 29, 2008, thirty-four members of the civil rights group Witness Against Torture (WAT) were found guilty in the District of Columbia Superior Court of unlawful assembly for having demonstrated at the U ...

$170,000 Jury Verdict in Sacramento Jail Beating

$170,000 Jury Verdict in Sacramento Jail Beating

In April 2008, a federal jury in Sacramento, California returned verdicts against five Sacramento County Jail deputies for beating a prisoner and denying him food and water for eight hours. Although the facts were contested, the jury’s verdicts of $20,000 in ...

Costs for San Quentin’s Proposed New Death Row Spiral Upward

by John E. Dannenberg

As delays mount, San Quentin’s proposed replacement Death Row facility is growing in cost while shrinking in size. In a June 2008 report to the Governor and Legislature, the state Auditor’s office made its first of two reports concerning the cost of the proposed ...

Washington State’s Criminal Libel Statute Held Unconstitutional; Prisoner Disciplinary Conviction Vacated

Washington State’s Criminal Libel Statute Held Unconstitutional; Prisoner Disciplinary Conviction Vacated

by John E. Dannenberg

The Washington State Court of Appeal, Division 2, ruled that the state’s criminal libel statute was unconstitutional under U.S. Supreme Court precedent due to vagueness and for being overbroad. In so ruling, the appellate ...

Florida Sheriff Sued for Awarding No-Bid Health Care Contract, Receiving Gifts

Florida Sheriff Sued for Awarding No-Bid ?Health Care Contract, Receiving Gifts

Prison Health Services (PHS) has sued the sheriff of Sarasota County, Florida for awarding the jail’s health care contract to rival Armor Correctional Health Services without taking competitive bids. The lawsuit also alleges that Sheriff Bill Balkwill received gifts ...

Civil Commitment Provisions of Adam Walsh Act Held Unconstitutional

Civil Commitment Provisions of Adam Walsh Act Held Unconstitutional

Congress exceeded its authority under the Commerce Clause and Necessary and Proper Clause of the U.S. Constitution in enacting the civil commitment provisions of the Adam Walsh Act, a Minnesota U.S. District Court ruled on May 23, 2008.

Shortly ...

PHS Receives Three-Year $366 Million Rikers Island Medical Care Contract Renewal Despite Non-Performance Fines for Last Three Years

by John E. Dannenberg

Prison Health Services, Inc. (PHS) was granted a three-year, $366 million no-bid contract renewal to provide medical and mental health care services for New York City’s Rikers Island Jail, notwithstanding the company’s checkered record during its last three-year contract, which resulted in $793,000 ...

Washington Jail Remodel Violated State Law, at a Cost of $51.6 million

King County, Washington officials violated state law by failing to get competitive bids on a security upgrade project at the King County Correctional Facility, according to a March 12, 2008 state audit. Originally slated at $14.2 million, the cost of the project has skyrocketed to $51.6 million.

A ...

Michigan Escape is Not “Violent Felony” for ACCA Purposes

The Sixth Circuit Court of Appeals has held that a Michigan “failure to report” escape conviction was not a “violent felony” under 18 U.S.C. § 924, the Armed Career Criminals Act (ACCA).

Anthony Collier was arrested by federal agents in Michigan and charged with being a felon in possession ...

Jail Nurse Guilty of Forging Doctor’s Order; Forged Orders Common Jail Practice

Jail Nurse Guilty of Forging Doctor’s Order; Forged Orders Common Jail Practice

by Mark Wilson

On August 28, 2008, a Multnomah County, Oregon jury convicted a former jail nurse of forging a drug prescription for a prisoner who died hours later.

Jody Gilbert Norman, 43, was arrested on February 19 ...

$7 Million in Settlements in Colorado Jail Prisoner’s Death from Medical Negligence

$7 Million in Settlements in Colorado Jail Prisoner’s Death from Medical Negligence

by David M. Reutter

The Denver Health Medical Center has settled a claim of negligent care for $4 million after releasing a prisoner with internal injuries who later died. Six months later, the Denver City Council approved an ...

Ohio Jail Guard’s Excessive Force Conviction Affirmed

The Sixth Circuit Court of Appeals has affirmed a former jail guard’s criminal convictions for using excessive force on three prisoners.

Michael J. Budd, once second-in-command of the Mahoning County, Ohio Sheriff’s Department, was charged in a four-count indictment with subjecting prisoners to excessive force. Count one alleged ...

$1,100,000 Settlement in Juvenile Prisoner Suicide in Union County, New Jersey

$1,100,000 Settlement in Juvenile Prisoner Suicide in Union County, New Jersey

On November 15, 2007, Union County settled a lawsuit over the suicide death of a juvenile prisoner at the 42-year-old Union County Juvenile Detention Center (JDC) in Elizabeth, New Jersey. The county agreed to pay $780,000 ...

Will California’s $11 Billion Prison Outlay Survive State Budget Cuts?

As California deals with a projected $28 billion budget shortfall over the next 18 months, it remains to be seen if the requisite two-thirds of the state legislature has the political courage to make cuts to the Department of Corrections and Rehabilitation’s (CDCR) proposed $11 billion annual operating budget ...

Second Circuit Recognizes Attorney-Client Privilege in Prisoner’s Journal in Prosecution of Rapist Guard

Second Circuit Recognizes Attorney-Client Privilege in Prisoner’s Journal in Prosecution of Rapist Guard

The Second Circuit Court of Appeals held that a female prisoner did not waive attorney-client privilege with respect to certain writings in her prison journal.

Nicholas DeFonte, a former guard at the Metropolitan Correctional Center in Manhattan ...

Rape of Child by Former Washington DOC Director’s Son Spawns Departmental Crisis

Rape of Child by Former Washington DOC Director’s Son Spawns Departmental Crisis

by John E. Dannenberg

The Washington State Court of Appeals has upheld the firing of the Department of Corrections’ (WDOC) chief personnel counselor for violating the department’s privacy policies while counseling staff during a crisis caused by salacious ...

Ex-Con Exposed – Had Posed as a Lawyer

by John E. Dannenberg

A former prisoner who posed as an attorney in at least 16 cases in ten federal courts since 2004 has admitted to a federal judge that he is not a lawyer and didn’t graduate from law school as he had claimed. The effect of his ...

$5 Million Settlement For Illegal Strip Searches In Las Cruces, NM Jail

$5 Million Settlement For Illegal Strip Searches In Las Cruces, NM Jail

An estimated 11,000 Doña Ana County Detention Center detainees who were illegally strip searched between March 7, 2003 and March 7, 2006 have settled their class action suit against the county for $5 million. Included in the ...

New Jersey Court Enters Preliminary Injunction Barring Women Prisoners at Men’s Prison

New Jersey Court Enters Preliminary Injunction Barring Women Prisoners at Men’s Prison

A New Jersey Superior Court has issued a preliminary injunction that prohibits prison officials from transferring women prisoners to the New Jersey State Prison (NJSP), a men’s maximum-security facility. The Court also entered orders certifying the lawsuit as ...

PEW Report: 1 in 99 Adult Americans Behind Bars In 2007

by John E. Dannenberg

The venerated PEW Center on the States reported in February 2008 that one in every 99.1 adult Americans was presently behind bars. For males between ages 20 and 34, the number is 1 in 30. Racially, the numbers are even more disturbing: one in 36 ...

Maryland DOC Pays $500,000 for Detainee Beaten to Death By Guards

Maryland DOC Pays $500,000 for Detainee Beaten to Death By Guards

In May, 2008, the State of Maryland settled for $500,000 a lawsuit brought by the family of a detainee who was beaten to death by jail guards at Baltimore’s Central Booking and Intake Center.

Raymond Smoot had ...

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

$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 ...

Georgia Sheriff Must Give Revenue from Prisoner Phone Calls to County

Georgia Sheriff Must Give Revenue from Prisoner Phone Calls to County

by David M. Reutter

The Georgia Court of Appeals has held that a sheriff must turn over to the county all revenue from a profit-sharing prisoner telephone contract. The ruling upholds an order of declaratory relief granted to Lincoln ...

Beleaguered Oregon Sheriff Steps Down

Flamboyant and controversial Multnomah County Sheriff Bernie Giusto, head of Oregon’s largest county jail, has retired in the face of an overwhelming vote to strip him of his badge.

Giusto, a lightning rod for criticism, has been under constant fire for the better part of two years. A 2006 ...

Violence at Oklahoma Prisons Leaves Two Dead, Twenty-Five Injured

by Matt Clarke

On May 19, 2008, at approximately 12:30 p.m., a fight broke out between Native American and black prisoners at the Oklahoma State Reformatory (OSR) in Granite. When the skirmish ended five minutes later, two prisoners were dead and twelve others injured – three of them critically ...

News in Brief:

Arkansas: On July 24, 2008, Joshua Albright, a prisoner in the Johnson county jail, was being transported to the Oklahoma Department of Corrections to serve a 40 year sentence for armed robbery. Deputies stopped at the Johnson county jail so Albright could use the bathroom and he escaped from the ...

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

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

The Sixth Circuit U.S. Court of Appeals has vacated its precedent which held that a prisoner had an affirmative burden to plead exhaustion of administrative remedies in a § 1983 complaint ...