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Prison Legal News: October, 2009

Issue PDF
Volume 20, Number 10

In this issue:

  1. Texas Prisoners Still Dying in Houston Jails, Among Other Problems (p 1)
  2. From the Editor (p 6)
  3. Fifth Circuit: Special Parole Review Request Doesn’t Toll AEDPA Limitations (p 6)
  4. Megan’s Law Preempts Local New Jersey Sex Offender Ordinances (p 7)
  5. “Habeas Hints” (p 8)
  6. Perpetrators and Enablers of Torture in the US (p 10)
  7. Maine Prison in Turmoil (p 12)
  8. Obama Promises Guantanamo Will Close and Torture Will End ... but When? (p 14)
  9. Human Rights Watch Report Calls to Reform PLRA (p 16)
  10. Florida Prison Guards Fired, Suspended for Shocking Children with Stun Guns (p 17)
  11. Problems at Washington’s Civil Commitment Center Continue (p 18)
  12. Southern California Jails Addicted to ICE Money (p 19)
  13. CA Prison Medical Care Receiver: Three Top Officials Ousted, Controversial Building Plan Opposed (p 20)
  14. California Sheriffs Appropriate Rehabilitation Funds for Security Needs (p 21)
  15. Sacramento County Jail Settles Excessive Force Suit For $260,000 (p 22)
  16. Nebraska Prison Officials Must Pay Attorney’s Fees in Kosher Diet Case; Found in Contempt After Excrement Discovered in Prisoner’s Food (p 22)
  17. PLN Files Public Records Suit Against San Francisco County, Sheriff’s Office (p 23)
  18. Columbia Jail Journal: The Compelling, Exclusive Inside Story of the Columbia Three, by James Monaghan, Brandon Press, 277 pages (p 24)
  19. Florida DOC and Keefe Gouge Prisoners on Commissary Sales (p 25)
  20. $1.8 Million Settlement in Beating of Florida Jail Prisoner (p 26)
  21. Pennsylvania Jail Mired in Scandal ... Again (p 26)
  22. Montana, Michigan Towns Vie to Fill Prisons with Guantanamo Detainees (p 28)
  23. $4.7 Million Settlement for Brain Damage Caused by Washington Jail Negligence (p 29)
  24. Michigan Changes Overtime Rules; $4 Million Savings on Prison Budget (p 29)
  25. Glomar Response to Prisoner’s FOIA Request Insufficient (p 30)
  26. Texas Parole Board’s Hearing on Imposition of Sex Offender Conditions Inadequate (p 30)
  27. PLN Prevails in Motion to Unseal Settlement in CCA Class Action FLSA Case (p 31)
  28. $6 Million Settlement in Beating Death of California Detainee (p 32)
  29. $500,000 Settlement for Fatal Beating of Phoenix Jail Prisoner (p 32)
  30. Los Angeles County Agrees to Pay $7,000,000 to Beaten Juvenile Prisoner (p 33)
  31. Ohio County Jail Agrees to Pay $75,000 For Locking Up Poor (p 33)
  32. Small Amounts of Marijuana Not “Dangerous Contraband” Under New York Law, Court Rules (p 34)
  33. Audit Finds California Parolees Sometimes Slip Through Bureaucratic Cracks (p 34)
  34. Maryland Prisoners Make Flags (p 34)
  35. Mississippi Prisoners Make Collect Call for Jesus (p 35)
  36. Clerk Erred in Refusing to File Unsigned 28 U.S.C. § 2255 Motion (p 35)
  37. Aramark Discontinues, Loses Prison Food Service Contracts (p 36)
  38. Injunction Against Missouri Sex Offender Halloween Restrictions Issued, Then Vacated (p 37)
  39. Mentally Ill NC Prisoners Injured in Separate Incidents (p 38)
  40. $145,000 Settlement in Iowa Prisoner’s Self-Mutilation Mental Health Claim (p 38)
  41. Missouri DOC Permits Gift Books in Response to PLN Demand Letter (p 40)
  42. Hawaii to Remove Prisoners from CCA Facility Over Abuse Charges (p 40)
  43. Military Psychologist Implicated in Abusive Interrogations (p 42)
  44. Indigent Connecticut Prisoners Entitled to Copies of Records Under FOIA Without Charge (p 43)
  45. Duration of Confinement in Segregation Affects Due Process Inquiry (p 44)
  46. Second Circuit Reinstates New York Jail Guard’s Excessive Force Conviction (p 44)
  47. California: City Liable for $237,000 Hospital Bill for Prisoner’s Medical Care (p 45)
  48. Oakland, CA Police Policy of In-Field Public Strip Searches Without Arrest or Warrant Found Unconstitutional (p 46)
  49. Florida: For Sentence Calculation Purposes, Civil Commitment Detention Same as Jail Confinement (p 46)
  50. District Court Erred in Sua Sponte Dismissal of Prisoner’s Challenge to Conditions of Confinement (p 47)
  51. Florida Gain Time Law Application Violates Ex Post Facto Clause (p 47)
  52. Ninth Circuit: Refusal to Allow Cross-Examination of Lab Technician Violates Due Process (p 48)
  53. Ohio Jail Officials Face Federal Charges, Investigation (p 48)
  54. BOP Warden Does Not Have Authority to Reduce Prisoner’s Sentence Under Rule 35(b) (p 49)
  55. News in Brief: (p 50)
  56. Oregon Illegal Detention Suit Settled for $30,000 (p 52)
  57. Sixth Circuit: Dismissal of Due Process and Equal Protection Claims Upheld; Exhaustion of Administrative Remedies Issue Remanded (p 55)

Texas Prisoners Still Dying in Houston Jails, Among Other Problems

Clarence Freeman’s hot check turned out to be his death warrant after it resulted in his arrest and incarceration at the Harris County Jail in Houston, Texas, where he was fatally assaulted by a guard.

On New Years Day in 2008, Freeman worked a double shift passing out meal ...

From the Editor

On August 25, 2009, Senator Ted Kennedy died of brain cancer. With his passing prisoners lost one of the few advocates they had in the US Senate. Not surprisingly, mainstream media accounts largely ignored this aspect of Senator Kennedy’s long career. Probably the highlight of this was his role ...

Fifth Circuit: Special Parole Review Request Doesn’t Toll AEDPA Limitations

The Fifth Circuit Court of Appeals held that improperly-filed state habeas corpus applications and requests to the parole board for special review do not toll the one-year AEDPA limitations period established by 28 U.S.C. § 2244(d).

Barry Michael Wion, a Texas state prisoner, filed a federal petition for ...

Megan’s Law Preempts Local New Jersey Sex Offender Ordinances

The New Jersey Supreme Court affirmed a lower court’s order that invalidated two townships’ ordinances restricting where registered sex offenders could live. The March 24, 2009 ruling held that the statewide Megan’s Law takes precedence over local statutes that impose residency restrictions on sex offenders.

Before the state ...

“Habeas Hints”

by Kent Russell

This column provides “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 under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U ...

Perpetrators and Enablers of Torture in the US

by Corey Weinstein, MD, CCHP

During the past 25 years I’ve spent a lot of time with survivors of torture, men and women enduring long term solitary confinement in California’s prisons. They are the most urgent victims of US mass incarceration with its overcrowded facilities and policy of ...

Maine Prison in Turmoil

By the time Warden Jeffrey Merrill revealed on June 3 that three Maine State Prison employees had been put on paid leave as a result of a state police investigation of an inmate’s death in April, probes of corruption and other issues at the 925-prisoner lockup had already cast ...

Obama Promises Guantanamo Will Close and Torture Will End ... but When?

by Matt Clarke

During last year’s election campaign, President Obama came out forcefully against torture by U.S. officials and in favor of closing the military prison at Guantanamo Bay, Cuba, which holds approximately 230 alleged “terrorism” suspects. However, what Obama has done on these issues since taking office ...

Human Rights Watch Report Calls to Reform PLRA

by David M. Reutter

“The PLRA has had a devastating effect on the ability of incarcerated persons to protect their health and safety and vindicate other fundmanetal rights,” concludes a June 2009 report titled No Equal Justice: The Prison Litigation Reform Act [PLRA] in the United States. The report was ...

Florida Prison Guards Fired, Suspended for Shocking Children with Stun Guns

by David M. Reutter

The Florida Department of Corrections (FDOC) has fired three guards, demoted a warden and disciplined other employees following an investigation into dozens of children being shocked with stun guns during “Take Our Daughters and Sons to Work Day” on April 23, 2009. Apparently, some FDOC employees ...

Problems at Washington’s Civil Commitment Center Continue

by Matt Clarke

On July 30, 2008, Paepaega Matautia, Jr., 39, a mail room guard at the Special Commitment Center (SCC) for sex offenders on McNeil Island in Washington state, was arrested on federal charges of attempting to possess and distribute crack cocaine at the facility. The next day, SCC ...

Southern California Jails Addicted to ICE Money

by Matt Clarke

Faced with budget cuts due to the down economy, jails across Southern California have turned to a new revenue stream – immigration detention. The federal government paid over $55 million to house immigrant detainees in California jails in fiscal year 2008. That was up from $52.6 million ...

CA Prison Medical Care Receiver: Three Top Officials Ousted, Controversial Building Plan Opposed

by Matt Clarke

On March 12, 2009, J. Clark Kelso, California’s federal court-appointed receiver over prison medical care, demanded the resignations of his chief of staff, John Hagar; Stephen Weston, Hagar’s assistant; and medical services CEO Dr. Terry Hill. Hagar and Weston both resigned; Hill refused to resign ...

California Sheriffs Appropriate Rehabilitation Funds for Security Needs

As California’s budget crisis deepens, local law enforcement agencies are looking for creative ways to cover shortfalls in their budgets. Increasingly, county sheriffs are raiding funds intended by the Legislature to be expended “primarily for the benefit, education and welfare of the inmates confined within the jail.” Referred to ...

Sacramento County Jail Settles Excessive Force Suit For $260,000

Sacramento County Jail Settles Excessive Force Suit for $260,000

On April 20, 2009, Sacramento County agreed to settle an excessive force suit brought by a former prisoner at the Sacramento Main Jail (SMJ) for $260,000.

On December 1, 2005, Donald Black, a probationary sergeant at SMJ, ordered the ...

Nebraska Prison Officials Must Pay Attorney’s Fees in Kosher Diet Case; Found in Contempt After Excrement Discovered in Prisoner’s Food

Nebraska prison officials cannot delay paying $204,856.28 in attorney’s fees and costs awarded in a lawsuit where they were found to have violated the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA) by failing to post a prayer schedule and to provide a ...

PLN Files Public Records Suit Against San Francisco County, Sheriff’s Office

On August 20, 2009, Prison Legal News filed suit in Superior Court against the City and County of San Francisco, the San Francisco Sheriff’s Department, Sheriff Michael Hennessey and City Attorney Dennis Herrera. The lawsuit alleges that the defendants failed to comply with their statutory obligations under the California ...

Columbia Jail Journal: The Compelling, Exclusive Inside Story of the Columbia Three, by James Monaghan, Brandon Press, 277 pages

Reviewed by David Preston

Of the many and varied detours a man can take off the road to happiness, a trip to prison would have to be about the most discombobulating. And for most of us, a prison stint in an impoverished and violence-blighted nation like Columbia would have to ...

Florida DOC and Keefe Gouge Prisoners on Commissary Sales

by David M. Reutter

While the economic downturn has caused the price of goods and commodities to decrease in the free world, the cost of items in Florida’s prison canteens has skyrocketed under a new contract.

Florida law requires that items sold in prison canteens “shall be priced comparatively ...

$1.8 Million Settlement in Beating of Florida Jail Prisoner

by David M. Reutter

Florida’s Broward County Sheriff’s Office (BCSC) agreed to pay $1.8 million to settle a civil rights action, in mid-trial, brought by a former prisoner who was left brain damaged after a beating from other prisoners, who were encouraged by guards.

When Dana C ...

Pennsylvania Jail Mired in Scandal ... Again

by David M. Reutter

With the suspension of two top officials at the Monroe County Correctional Facility (MCCF) in Snydersville, Pennsylvania, efforts to turn the jail around have hit yet another stumbling block. The February 27, 2009 suspensions – and later resignations – of Warden David Mauro and Captain Owen Thomas created ...

Montana, Michigan Towns Vie to Fill Prisons with Guantanamo Detainees

by David M. Reutter

Despite winning a lawsuit which held that officials in Hardin, Montana could contract to receive out-of-state prisoners, the town’s Two Rivers Detention Facility sits empty and the bonds issued to finance the prison are in default. In a desperate move, Hardin offered to take in ...

$4.7 Million Settlement for Brain Damage Caused by Washington Jail Negligence

Washington State’s Kitsap County Jail paid $4.7 million to settle a lawsuit that alleged its failure to properly care for a developmentally disabled man left him brain damaged from dehydration.

William E. Trask, 44, was born developmentally disabled. Despite that, he was healthy and led an active life ...

Michigan Changes Overtime Rules; $4 Million Savings on Prison Budget

In order to cut operating costs, Michigan has changed the way state employees can receive overtime. Statewide, the change is expected to save $8 million annually, with half of the savings coming from prisons.

The change, which became effective October 1, 2008, comes as the result of a contract with ...

Glomar Response to Prisoner’s FOIA Request Insufficient

On February 28, 2008, U.S. District Court Judge Rosemary M. Collyer denied a summary judgment motion filed by the Bureau of Prisons (BOP) in a Freedom of Information Act (FOIA) suit challenging the BOP’s refusal to confirm or deny the existence of disciplinary records related to a former ...

Texas Parole Board’s Hearing on Imposition of Sex Offender Conditions Inadequate

by Matt Clarke

On March 24, 2009, a U.S. District Court ruled that hearings held by the Texas parole board before imposing sex offender parole conditions on prisoners not convicted of sex offenses were constitutionally inadequate.

Raul Meza, a Texas prisoner, was convicted of murdering an eight-year-old girl and ...

PLN Prevails in Motion to Unseal Settlement in CCA Class Action FLSA Case

On August 28, 2009, the U.S. District Court for the District of Kansas unsealed a settlement agreement in a nationwide class-action lawsuit against Corrections Corporation of America (CCA), the nation’s largest private prison firm. On July 27, 2009, Prison Legal News had filed a motion to intervene in ...

$6 Million Settlement in Beating Death of California Detainee

California’s Kern County agreed to pay $6 million to settle a lawsuit in the beating death of a pre-trial detainee at the county’s jail. The August 15, 2005, incident involved “as many as 14 detention officers [who] … beat, hit, kicked, kneed, punched, choked, taunted, mocked, and tormented an ...

$500,000 Settlement for Fatal Beating of Phoenix Jail Prisoner

by Matt Clarke

On June 3, 2009, the Maricopa County (Arizona) Board of Supervisors voted 4-0 to settle for $500,000 a lawsuit brought by survivors of a man beat to death in the Fourth Avenue Jail of the Maricopa County Jail System. The jail is operated by sheriff Joe ...

Los Angeles County Agrees to Pay $7,000,000 to Beaten Juvenile Prisoner

On March 27, 2009, Los Angeles County agreed to pay $7,000,000 to a youth that was severely beaten at the Barry J. Nidorf Juvenile Hall (Nidorf) in Sylmar, California after the youth was pressured, but refused, to join a gang.

Raymond Amande, Jr. was attacked in a recreation ...

Ohio County Jail Agrees to Pay $75,000 For Locking Up Poor

On April 30, 2009, Hamilton County, Ohio agreed to settle a class action lawsuit brought on behalf of over 600 individuals who were jailed for non-payment of a fine without first being afforded an attorney or hearing to determine whether they could pay.

The Plaintiff in the case, Michael Powers ...

Small Amounts of Marijuana Not “Dangerous Contraband” Under New York Law, Court Rules

The possession or introduction of small amounts of marijuana into a New York state prison is not punishable as a felony, the New York Court of Appeals held.
Robert Finley, a New York state prisoner, was charged with felony promoting prison contraband in the first degree after three marijuana joints ...

Audit Finds California Parolees Sometimes Slip Through Bureaucratic Cracks

At the request of the legislature, the Bureau of State Audits examined the adult parole discharge practices of the California Department of Corrections and Rehabilitation and found that parolees, even those regarded as violent or serious offenders, occasionally slip through bureaucratic cracks in policies designed to prevent their premature discharge ...

Maryland Prisoners Make Flags

Made in the U.S.A. got a whole new meaning with the passage of a recent Maryland law that requires all Maryland and United States flags to be produced in the United States.
For many years in Maryland, all but one flag that flies at the State House was ...

Mississippi Prisoners Make Collect Call for Jesus

On April 15, 2009, the Mississippi Legislature passed legislation authorizing up to 25 percent, or $25,000 annually, of the money collected from prisoner telephone calls to fund a Jail and Prison Ministry.

Since the late 1990s, the Good News Jail and Prison Ministry has provided church services at the ...

Clerk Erred in Refusing to File Unsigned 28 U.S.C. § 2255 Motion

Clerk Erred in Refusing to File Unsigned 28 U.S.C. § 2255 Motion

The U.S. Court of Appeals for the Eleventh Circuit held that it was error for a district court clerk to refuse to file an unsigned 28 U.S.C. § 2255 motion.

On May 20, 2004, Georges ...

Aramark Discontinues, Loses Prison Food Service Contracts

by David M. Reutter

The corporate philosophy of cutting corners to enhance profits is catching up with Aramark Correctional Services, causing the company to lose prison and jail food service contracts and putting other contracts in jeopardy. Aramark has discontinued its contract with Florida’s entire prison system, while the ...

Injunction Against Missouri Sex Offender Halloween Restrictions Issued, Then Vacated

by Matt Clarke

A Missouri federal judge issued an injunction against enforcement of a new Missouri law imposing Halloween-related restrictions on registered sex offenders. However, the Eighth Circuit Court of Appeals lifted the injunction on October 30, 2008.

As part of the general demonizing and harassment of registered sex offenders ...

Mentally Ill NC Prisoners Injured in Separate Incidents

Timothy E. Helms remains paralyzed from the neck down following a confrontation with guards after he lit a fire in his cell at North Carolina’s Alexander Correctional Institution in Taylorsville. The next day, on August 4, 2008, Helms arrived at Catawba Valley Medical Center in the back of a ...

$145,000 Settlement in Iowa Prisoner’s Self-Mutilation Mental Health Claim

by David M. Reutter

The Iowa Department of Corrections (IDOC) paid $144,523.20 to settle a civil rights action that claimed prison officials sat idly watching a mentally ill prisoner physically maim herself.

In 1976 at the age of 13, Shane Elizabeth Eggen was placed in state custody by ...

Missouri DOC Permits Gift Books in Response to PLN Demand Letter

On September 15, 2009, the Missouri Department of Corrections (DOC) agreed to revise its policy prohibiting prisoners from receiving books purchased for them by third parties or sent to them free of charge. The DOC also agreed to eliminate any prior approval requirement as applied to book vendors and distributors ...

Hawaii to Remove Prisoners from CCA Facility Over Abuse Charges

Hawaii prison officials said Tuesday that all of the state’s 168 female inmates at a privately run Kentucky prison will be removed by the end of September because of charges of sexual abuse by guards. Forty inmates were returned to Hawaii on Aug. 17.

This month, officials from the ...

Military Psychologist Implicated in Abusive Interrogations

by David M. Reutter

A lawsuit against the Louisiana State Board of Examiners of Psychologists (LSBEP) accuses retired Army Col. Larry C. James of professional and ethical violations stemming from his former role as chief psychologist at the U.S. military prisons in Abu Ghraib, Iraq and Guantanamo Bay, Cuba ...

Indigent Connecticut Prisoners Entitled to Copies of Records Under FOIA Without Charge

On April 29, 2008, the Superior Court of Connecticut upheld the Connecticut Freedom of Information Commission’s decision to invalidate a state prison rule that prevented indigent prisoners from obtaining copies of records under the state’s Freedom of Information Act (FOIA) without charge.

Richard Quint, a Connecticut prisoner, requested ...

Duration of Confinement in Segregation Affects Due Process Inquiry

On May 12, 2008, the U.S. Court of Appeals for the Sixth Circuit held that the length of a prisoner’s confinement in administrative segregation (ad seg) affects whether there has been a due process violation.

Carey Harden-Bey, a Michigan prisoner at the Alger Maximum Correctional Facility, was placed ...

Second Circuit Reinstates New York Jail Guard’s Excessive Force Conviction

by Matt Clarke

The Second Circuit Court of Appeals reinstated the federal conviction of a New York jail guard for intentionally using excessive force on a prisoner in violation of 18 U.S.C. § 242.
Zoran Teodorovic, a pre-trial detainee at the Westchester County Jail, was housed in a special ...

California: City Liable for $237,000 Hospital Bill for Prisoner’s Medical Care

On May 22, 2003, indigent prisoner Kenneth Lee Denham was arrested and detained by Oakland police officers at the city jail. He was later taken to the county jail, but the county refused to accept him because he was too sick. Oakland police then transported Denham to ValleyCare Medical Center ...

Oakland, CA Police Policy of In-Field Public Strip Searches Without Arrest or Warrant Found Unconstitutional

The U.S. District Court for the Northern District of California held on March 27, 2008 that the Oakland Police Department’s (OPD) policy permitting non-medical strip searches of detainees in the field, conducted in public view without either a warrant or an arrest, was partly unconstitutional. Three plaintiffs, all ...

Florida: For Sentence Calculation Purposes, Civil Commitment Detention Same as Jail Confinement

Florida’s Fourth District Court of Appeal has held that there is no meaningful distinction between incarceration in prison or jail and confinement in a sex offender civil commitment facility for the purposes of sentence calculation.

The Court’s ruling came in a Fla.R.Crim.P. 3.800(a ...

District Court Erred in Sua Sponte Dismissal of Prisoner’s Challenge to Conditions of Confinement

The U.S. Court of Appeals for the Second Circuit reversed a district court’s sua sponte dismissal of a prisoner’s challenge to his conditions of confinement.

Sala-Thiel Thompson, a federal prisoner, filed a habeas petition under 28 U.S.C. § 2241 alleging that his conviction was entered without ...

Florida Gain Time Law Application Violates Ex Post Facto Clause

Florida’s First District Court of Appeal has held that application of a 1983 gain time statute to a prisoner who committed his offense in 1981 violated the ex post facto clause. Before the appellate court was a petition for writ of certiorari filed by Florida state prisoner Reginald Burks ...

Ninth Circuit: Refusal to Allow Cross-Examination of Lab Technician Violates Due Process

The U.S. Court of Appeals for the Ninth Circuit held it was a violation of due process for a district court to deny a criminal defendant the right to cross-examine a lab technician who tested a urine sample that showed positive for illegal drugs, when the sample was clearly ...

Ohio Jail Officials Face Federal Charges, Investigation

A federal grand jury has returned indictments against two Lucas County, Ohio jail guards in connection with the death of a prisoner. Additionally, Lucas County’s sheriff and another jail employee face charges of lying to investigators.

According to the indictment, guards John Gray and Jay Schmeltz beat and choked ...

BOP Warden Does Not Have Authority to Reduce Prisoner’s Sentence Under Rule 35(b)

A federal Bureau of Prisons (BOP) warden does not have authority to reward a prisoner’s cooperation with prison officials with a reduced sentence under Fed.R.Crim.P. Rule 35(b), the First Circuit held on May 23, 2008.

Edward B. Ellis, a federal prisoner serving 20 years, provided ...

News in Brief:

Alabama: On July 23, 2009, former prison guard Kenya Morton, 27, was sentenced to a year in jail and 3 years supervised release for promoting contraband. He was caught during a routine search at the Bibb County Correctional Facility with two bags of marijuana and hydrocodone on February 29, 2008 ...

Oregon Illegal Detention Suit Settled for $30,000

The State of Oregon and Multnomah County paid a former detainee $30,000 to settle his illegal detention claims.

In 2006, Irving Robinson was confined in the Multnomah County Jail, facing criminal charges. The State failed to bring him to trial within 60 days as required by OR5136.290, and ...

Sixth Circuit: Dismissal of Due Process and Equal Protection Claims Upheld; Exhaustion of Administrative Remedies Issue Remanded

The Sixth Circuit of Appeals has affirmed a district court’s dismissal of a prisoner’s due process and equal protection claims, but reversed the dismissal of Eighth Amendment claims based on failure to exhaust administrative remedies.

Before the Court was the appeal of Kentucky State Penitentiary prisoner Henry David ...