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Prisoner Education Guide

Prison Legal News: October, 2009

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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 trays at the jail. For his efforts he was promised an extra tray for himself. When the extra tray wasn’t forthcoming, Freeman complained and said he wanted to file a grievance. In response, jail guard Nathan Hartfield escorted Freeman to an isolation cell so he could fill out a grievance form. Hartfield claimed that once at the cell, Freeman became aggressive, called him a racial epithet and struck him in the face. According to Hartfield, he had to physically subdue Freeman.

Freeman’s written account of the incident, given shortly before his death, described an entirely different scenario. Freeman insisted that Hartfield had choked him, without provocation, until he couldn’t breathe and lost control of his bodily functions.

“On the way to lockup, the officer put his hands around my neck to throw me to the ground. I never resisted,” Freeman wrote in his dying statement.

The fact ...

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 on holding senate hearings in the mid 1970s on the use of prisoners as medical test subjects. The threat of legislation resulted in Health and Human Services regulations, still in effect today, which prohibit the use of prisoners in federally funded medical research. Until this happened virtually all drugs and cosmetics were tested on human prisoners, along with chemical and biological warfare agents and other items.
Senator Kennedy was also instrumental in enacting the Americans With Disabilities Act and was always a reliable vote for legislation that not only benefitted all Americans, but also the most powerless and dispossessed of Americans as well.

He leaves a rich legacy behind him. Unlike many politicians, Senator Kennedy was consistent and his advocacy for the poor didn’t change over time or with the political winds. American politics is an even more impoverished place with his passing.

By now readers should have received ...

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 writ of habeas corpus under 28 U.S.C. § 2254, alleging that retroactive changes in Texas parole laws violated the Ex Post Facto Clause of the U.S. Constitution. The district court granted relief after holding that Wion’s improperly-filed state application for a writ of habeas corpus and his request to the parole board for special review (which was denied) tolled the AEDPA limitations period. Alternatively, if they did not, equitable tolling should apply because Wion had diligently pursued his claims. [See: PLN, Feb. 2009, p.14].

The state appealed, and the Fifth Circuit held that a state prisoner is required to exhaust all state procedures for relief before filing a federal habeas action. However, in contrast to the law governing prisoners who seek time credits, which requires them to exhaust a specific administrative remedy before filing a state petition for a writ of habeas corpus, nothing prevents a ...

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 Supreme Court were consolidated appeals that challenged the invalidation of ordinances enacted by Galloway and Cherry Hill townships. Other than the penalties for violation, the ordinances were similar. Both prohibited convicted sex offenders from living within 2,500 feet of any school, park, playground or daycare center. Upon notification, affected sex offenders had to move within 60 days or face penalties.

G.H., a twenty-year-old freshman at Richard Stockton College, challenged the Galloway ordinance after he was advised that he had to move from his college dormitory and could not live within 2,500 feet of the campus. G.H. was convicted when he was 15 of having criminal sexual contact with a 13-year-old.

The challenge against Cherry Hill’s ordinance, which made nearly the entire township off limits to sex offenders, was brought by convicted sex offenders James Barclay and Jeffrey Finguerra. They were the recipients of Section 8 ...

“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.S.

HABEAS YEAR IN 
REVIEW: 2009

Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009)

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the prosecution cannot present “testimonial statements” – those prepared for the primary purpose of being used at trial – unless the defense has had an opportunity to cross-examine the author of the statement. In Melendez-Diaz, the Court held that laboratory reports, such as those commonly used to identify illegal drugs, are “testimonial” under Crawford, and hence cannot be used as evidence at trial unless the prosecutor brings the lab tech in as a “live” witness whom the defense can then cross-examine. Moreover, the mere right of the defense to have called the analyst as its own witness does not defeat the State’s obligation to produce that witness, since the Confrontation Clause requires that the State bear the consequences of any no-show by an ...

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 incapacitation, not rehabilitation.

Those thousands held in solitary for years on end report the expected classic symptoms of psychic disturbance, mental deterioration and social disruption. As described by various penal psychiatric experts, the symptoms of this syndrome include massive free-floating anxiety, hyperresponsiveness to external stimuli, perceptual distortions and hallucinations, a feeling of unreality, difficulty with concentration and memory, acute confusional states, the emergence of primitive aggressive fantasies, persecutory ideation, motor excitement, and violent destructive or self-mutilatory outbursts. The degrading conditions produce behaviors ranging from fights among prisoners to assaults on staff, assaults by staff, excrement throwing, self mutilation and contract killings. Isolation tears apart family and friendship ties creating social dislocation.

In California there are about 4,000 men and women held in the State’s supermax facilities called Security Housing Units (including 600 serving SHU terms in Administrative Segregation). That is 2.5% of the total population of 160 ...

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 a harsh light on its management.

Governor John Baldacci said on June 4 he was “concerned about the apparent circumstances of the death” of 64-year-old sex offender Sheldon Weinstein, who died in his cell in the Warren prison’s solitary-confinement “Supermax” unit on April 24. He had been beaten four days earlier, and police are investigating inmates as suspects in what they term a homicide.

But several prison sources said Weinstein also had been refused proper medical treatment, and that this is the reason the employees were put on leave. On June 10, the Maine State Police said he died of “blunt force trauma,” but would confirm little else.

A prison chaplain, former state representative Stan Moody, of Manchester, said he hopes Weinstein’s death “will lead to widespread reform” within the prison. “Sadly, change often comes about through tragedy.” He believes he was one of the last people to ...

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 is another matter.

Two days after his inauguration, Obama promised to close Guantanamo within a year, even signing an executive order to that effect. Since then, members of his own party as well as political opponents have moved to prevent that from happening.

Last June, Congress stripped $80 million needed to close Guantanamo out of a $106 billion war funding bill. The bill, which was signed by President Obama on June 23, 2009, also allows Guantanamo prisoners to be moved to the U.S. for prosecution but not for permanent detention or release. The latter restrictions were spurred in part because several U.S. cities, including Hardin, Montana, volunteered to house maximum-security prisoners from Guantanamo. [See related article in this issue of PLN]

Most visible among the Guantanamo detainees who have been cleared of “terrorist” activities is a group of 17 Uighurs. Uighurs are a largely Muslim minority ethnic group ...

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 published by Human Rights Watch.

No Equal Justice says the PLRA places a host of burdens and restrictions on lawsuits filed by prisoners and that apply to no other persons. Those restrictions result in prisoners seeking the protection of the courts against unhealthy or dangerous conditions of confinement or a remedy for sexual assault and other injuries inflicted by prison staff and prisoners having had their cases thrown out of court.

In addition to detailing the circumstances of such cases, the report draws on interviews with former prison officials, prisoners denied remedies for abuse, and criminal justice experts to examine the PLRA’s effect on prisoners’ access to justice. No Equal Justice then makes recommendations on amending the PLRA.

The report begins by examining the United States’ prison population and oversight with that of other industrialized democracies. With 760 incarcerated persons for every 100,000 residents, the U.S. rate ...

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 wanted to give their kids a demonstration of how they treat prisoners while on the job.

What started as an investigation into an incident at the Franklin Correctional Institution (FCI) expanded after similar incidents were disclosed at two other state prisons. The investigation began when the father of a 12-year-old girl filed a lawsuit after his daughter was shocked by an FCI guard with a 50,000 volt stun gun. The jolt knocked her to the ground, causing abrasions and trauma that required a doctor’s treatment.

That guard, who was not identified, shocked at least six children. Frank Gonzalez, owner of Self-Defense USA, a large stun gun company in San Diego, described the 50,000-volt shock as “similar to grabbing a live wire in your house with a wet hand – like a hard punch in the stomach with the added trauma of electricity running through your body.”

The father ...

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 resident (the SCC term for prisoner) Lawrence Williams, 50, was arrested for conspiracy to distribute crack cocaine and witness tampering.

Matautia, who had worked at SCC since December 2003, reportedly delivered drugs to Williams at least eight times. Williams had been incarcerated at SCC since he was civilly committed after his sentence for a first-degree rape conviction expired in August 2002.

On December 12, 2008, Matautia pleaded guilty to one count of attempting to possess and distribute cocaine; he has not yet been sentenced. Williams pleaded guilty on April 13, 2009, but later sought to withdraw the plea after he accused the government of breeching the terms of the agreement.

The arrests of Matautia and Williams are not the only incidents to occur at SCC, which holds 280 men and one woman under prison-like conditions, complete with razor-wire fences and video surveillance cameras. In 2006 and 2007, SCC staff discovered ...

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 in FY 2007, and is expected to increase to $57 million in FY 2009.

The Los Angeles County Sheriff’s Department has the largest federal contract, receiving $32.3 million in FY 2007 and $34 million in FY 2008. It dedicated a 1,400-bed jail in Lancaster to hold immigration detainees.

Smaller cities also got their share. Glendale’s income from federal immigration detention tripled last year to almost $260,000, while Alhambra’s doubled to $247,000.

Santa Ana’s Immigration and Customs Enforcement (ICE) contract increased from $3.7 million in FY 2007 to $4.8 million in FY 2008. The Santa Ana Police Department used federal money for holding immigrant detainees to make up for an expected 15% budget reduction and hiring freeze.

“We treat [the jail] as a business,” said Santa Ana Police Chief Paul Walters. “The [budget] cuts could have been much deeper if it ...

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 and was fired. Kelso said the staff changes were “housecleaning that you do every spring,” though Hagar, Hill and Weston cited “irreconcilable differences ... concerning the new direction of the receivership.”

Meanwhile, California lawmakers openly opposed Kelso’s $8 billion plan to reform the state prison system’s medical and mental health services by building seven new prison hospitals, creating 5,000 long-term medical care beds and 5,000 long-term mental health beds. State officials had previously tried to terminate Kelso’s position as receiver, claiming it was unnecessary. [See: PLN, Aug. 2009, p.20].

A California federal court appointed Robert Sillen as the first receiver in 2006 after state prisoners, represented by the Prison Law Office, filed a class-action lawsuit alleging constitutionally inadequate medical and mental health care in the California Dept. of Corrections and Rehabilitation (CDCR). See: Plata v. Schwarzenegger, U.S.D.C. (N.D. Cal.), Case No ...

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 as “inmate welfare funds” (or “IWF’s”), traditionally those funds have been used to pay for programs that help to rehabilitate prisoners. With local budgets stretched thin, however, more and more sheriffs are redirecting those funds to pay for equipment, construction, and increased security -- expenditures that ordinarily would be covered out of the general fund. In so doing, the sheriffs risk being sued. A 2005 suit against Santa Clara County officials, for instance, settled in 2008 when the county agreed to reimburse the IWF $1.5 million and also to make policy changes that will limit the possibility of such misappropriation of funds in the future.

Similarly, grand juries in Orange and Los Angeles counties are investigating whether the sheriffs of those counties misused their IWF’s. And in Sacramento County, prisoner advocates claim that the sheriff’s department has inappropriately diverted more than one million dollars from the IWF ...

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 Public Records Act (Gov’t Code §§ 6250, et seq.)

Last year, on July 9, 2008, PLN submitted a request to Sheriff Hennessey for records related to litigation against the Sheriff’s Department, including payouts in settlements and verdicts resulting from tort, overdetention and civil rights claims involving both prisoners and jail employees over a multi-year period.
PLN’s records request was forwarded to the City Attorney’s office, which on December 17, 2008 produced a spreadsheet that included information about payouts in 722 cases. However, City Attorney Dennis Herrera admitted that the spreadsheet was not “all encompassing.” On March 27, 2009, PLN provided additional information regarding its records request and submitted a supplemental request for litigation payouts since the date the original request was filed. No response was received and the defendants failed to produce all of the requested records, which clearly should have been produced under the Public Records ...

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 be considered equivalent to organ failure or death. Yet, in fact, even a calamity like this is survivable—if you’ve got people. Fortunately for James Monaghan—who spent the first three years of the twenty-first century as a political prisoner in Columbia—he did have people. Accordingly, he has lived to tell the tale.

Monaghan’s 2007 book recounts his odyssey as a prisoner in the not-failed-but-not-exactly-successful state of Columbia, where he and colleagues Martin McCauley and Niall Connolly traveled in the summer of 2001 on behalf of the Sinn Fein, the party of the Irish republican movement. By that time Sinn Fein had been participating, as a minority party, in the Northern Ireland peace process for several years, and the organization wanted to observe and advise Columbia’s left-wing FARC rebels as they laid down their weapons and began a similar transition from armed rebellion to peaceful political ...

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 with like items for retail sale at fair market prices.” That provision was enacted in 1996, along with another directive that transferred canteen profits from the Inmate Welfare Fund to the state’s General Revenue Fund.

In other words, rather than utilizing canteen profits to fund recreation programs, chapel activities and other services for prisoners, those profits now go directly to funding state operations. The result is that activities previously funded by the Inmate Welfare Fund have been eliminated or must rely on donations to operate.

The state’s General Revenue Fund netted about $30 million in fiscal year 2007-2008 as a result of the canteen contract between the Florida Department of Corrections (FDOC) and Keefe Commissary Network. Keefe began operating the FDOC’s canteens in 2003; the company’s current contract began on March 29, 2009 and extends for the next five years.

Keefe’s most recent contract with ...

$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 a vacuum in the MCCF administration that remains unfilled more than six months later. As PLN has previously reported, the jail has been plagued by scandal, including contraband smuggling and sexual misconduct by staff. [See: PLN, Dec. 2007, p.1].

The suspensions of Mauro and Thomas without pay were apparently based on a new zero-tolerance policy by the Monroe County Prison Board, which ordered the suspensions. That order was accompanied by a directive to investigate a February 26, 2009 conversation between Mauro and Thomas in the MCCF lunchroom.

Thomas reportedly made a disparaging remark to Mauro about a guard at the facility, stating “what a waste of a uniform.” Another guard overheard the comment. Afterwards, Thomas engaged in “damage control” discussions with several employees and warned the guard who overheard the remark not to repeat it. Mauro failed to intervene, and the Prison Board ordered the suspensions the next day ...

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 prisoners from Guantanamo Bay, Cuba – also known as “Guantanamo” – which is slated for closure by the Obama administration.

Building prisons to create jobs is a concept that has been regularly adopted by rural communities over the past three decades. With one of the highest poverty rates in the nation and an unemployment rate over 10%, Hardin was in desperate need to find jobs and income for its 3,400 citizens.

Before the town built the $27 million, 464-bed Two Rivers prison, Hardin was assured by the former governor of Montana that the Department of Corrections needed space to house state prisoners. When that deal fell through with the election of a new governor, Hardin sought to contract for out-of-state prisoners. City officials planned to hire CiviGenics to operate the facility.

Their hope was dashed by an Attorney General’s opinion which held that local authorities could not contract to house ...

$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 the state employees union. Under the old rules, overtime hours started as soon as the employee worked 80 hours. The new rules prohibit counting sick days toward regular work hours, but allow vacation time to be counted.

In October 2008, the state auditory general’s office issued a report that said further saving could be gained if contract rules were changed to allow the Michigan Department of Corrections to assign guards temporarily to other prisons.

The guards’ union, Michigan Corrections Organization (MCO), resisted that move during negotiations. While guards can be permanently reassigned, the union said temporary assignments are dangerous.

“You develop a certain trust with your colleagues,” says MCO’s executive director, Mel Grieshaber. “You complement each other, working with your partners and people you know.”

The union fails to see savings for the state by allowing it to assign guards to temporarily cover vacant slots at nearby prisons ...

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 BOP employee.

Monroe L. Coleman, a federal prisoner, submitted a FOIA request to the BOP for all investigative and disciplinary records related to Kimberley Moore, a former BOP staff member at United States Penitentiary Big Sandy who had been “terminated for indulging in wrongful acts.” In response to Coleman’s request, the BOP refused to confirm or deny the existence of the requested records, a so-called “Glomar” response. Dissatisfied, Coleman sued the BOP.

A Glomar response may be invoked when “to confirm or deny the existence of records ... would cause harm cognizable” under a FOIA exemption. In Coleman’s case, the BOP relied on Exemption 7(C), which protects from disclosure “records or information complied for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The BOP argued that ...

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 sentenced to 30 years. When he was released on mandatory supervision, the parole board imposed extremely onerous special parole conditions. The Texas Civil Rights Project helped Meza file a federal civil rights suit pursuant to 42 U.S.C. § 1983, arguing that the conditions violated his due process and equal protection rights.

The parole conditions required Meza to be housed in the Travis County Jail-Del Valle facility, being allowed to leave the jail only with prior approval of the parole board and accompanied by a parole officer; to find a job and housing before being released from the jail, but not giving him adequate job search support and telling each potential employer that he was a sex offender; and to stay away from “child safety zones,” among other restrictions. As a result, Meza was incarcerated at the Travis County Jail for six years “on parole,” under the same conditions as ...

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 were discovered in a wad of toilet paper that he threw on the ground before a “pat frisk” near A-Block at the Orleans Correctional Facility.

Kyle Salters, another state prisoner, was charged with felony attempted promoting prison contraband in the first degree after his girlfriend was caught trying to smuggle 9.3 grams of marijuana to him during visitation at the Bare Hill Correctional Facility.

Both Finley and Salters were charged with felonies on the premise that marijuana constituted “dangerous contraband” within the prison setting, based on the decision in People v. McCrae, 297 A.D.2d 878 (N.Y. App.Div.3d Dep’t 2002). Following separate jury trials, Finley and Salters were convicted as charged. They both appealed, and their appeals were consolidated.

The Court of Appeals, New York’s highest state court, reversed. The small amounts of marijuana at issue in Finley and Salters’ cases did not ...

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 from parole.

Upon completion of their prison terms, California prisoners are released into the community to serve statutory periods of parole which vary in length (from three years to life) depending on the type of commitment offense. State law, however, permits early discharge from parole upon service of a specified period of continuous parole (which varies in length from one to seven years, again depending on the type of commitment offense). Indeed, early discharge is required and occurs automatically, absent a finding of good cause by the parole board, 30 days following service of the specified continuous-parole period. Thus, and because California now discharges more than 40,000 felon parolees annually, failure of the parole board to exercise its discretion, in cases where retention is warranted, can have significant public safety implications.

In an August 2008 report, the State Auditor found that responsible parole units failed to submit discharge review ...

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 made in Jessup, Maryland, home to Maryland Correctional Services (MCS), the prison labor division of the Maryland Division of Correction. Now, all flags will be made in Jessup under legislation signed by Governor Martin O’Malley.

The flag legislation came about after H. Wayne Norman, Jr., a delegate to the Maryland House, bought a United States flag from Home Depot that was made in China. “When you see that symbol, it’s a little ironic when it says, ‘Made in China,” said delegate B. Daniel Riley, a supporter of the bill.

While the flag legislation was designed to remedy a perceived slight on an important American symbol, it does nothing for the workers who will be making the flags. Prisoners working for MCS make $1.25 to $5.10 a day, well below the federal minimum wage in a prison system renown for its brutality and corruption. How appropriate.

Sources ...

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 Lauderdale County Jail, funded entirely by donations. In 2007, however, the Lauderdale County Board of Supervisors requested the introduction of legislation to divert prison phone revenues, through December 31, 2011, to the chaplaincy to pay for a full-time Chaplain, and non-denominational worship services.

Sheriff Billy Sollie believes the jail ministry is important because it gives “hope of changing the heart and mind of those individuals who have chosen to prey on society, and provides them with hope for the future.” Sollie touted Ronny Shack, one of the first prisoners to join the jail ministry, as a chaplaincy success story. Sollie is convinced that Shack is now reformed, owning a local business, the Rib Shack, which provides catering for jail ministry fundraisers. “He acknowledges the message he received has led him to where he’s at today,” said Sollie.

Source: Senate Bill No. 3184 (2009), www.meridianstar.com

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 Michel’s co-defendant, James Armstrong, mailed a § 2255 motion prepared on Michel’s behalf to the U.S. District Court for the Southern District of Alabama. The signature line of the motion contained the typed name “Georges Michel” but was otherwise unsigned. The clerk returned the motion to Michel with a letter explaining that an unsigned § 2255 motion would not be accepted.

Michel sent several unsigned copies of the motion back to the clerk, each of which were returned with instructions that the motion must be signed. On June 17, 2004, the clerk finally received and docketed a signed copy of Michel’s § 2255 motion. The district court dismissed the motion as untimely because it was not properly filed by May 26, 2004 – the day the statute of limitations expired.

On appeal, Michel argued that the district court had erred in treating his § 2255 motion as untimely. According to Michel ...

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 company recently lost contracts in several other states as well as overseas.

In 2002, the Florida Department of Corrections (FDOC) was pushed into privatizing its food service at the behest of former Governor Jeb Bush, who forced many state agencies into privatization with disastrous results.

The first week after the FDOC’s privatized food service went into effect, there were improvements. The initial meal trays were well-prepared with sufficient servings. Shortly thereafter, however, Aramark moved to cash in on the contract’s lucrative provisions.

Not only did the FDOC contract provide Aramark with prisoner slave labor to perform all kitchen-related duties except supervision, it contained an incentive to cut every possible corner to increase the company’s profit margin. Aramark had no qualms about doing just that, and provided its managers with incentive bonuses for coming in under budget.

The contract’s golden egg was a provision that paid Aramark ...

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 nationwide, the Missouri legislature passed a statute, R.S.Mo. § 589.426, that requires all registered sex offenders (RSOs) to: (1) avoid all Halloween-related contact with children; (2) remain inside their residences between 5:00pm and 10:30pm on Halloween unless required to be elsewhere for just cause such as employment or medical emergencies; (3) post a sign at their residences stating “No candy or treats at this residence”; and (4) leave all outside residential lighting off after 5:00pm on Halloween.

Assisted by the American Civil Liberties Union, two female and two male RSOs – three of whom had sole custody of minor children and old convictions for statutory rape – filed suit in U.S. District Court challenging the statute and seeking a declaratory judgment that it was unconstitutional under the federal and Missouri Constitutions. The suit, filed under 42 U.S.C. § 1983 and other state and federal laws ...

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 squad car, suffering from what Dr. Jon Giometti described as extreme blunt force injuries.

“The patient has [welt] markings consistent with [being] struck by a Billy club across his upper extremities. Across his trunk, he has contusions on the chest wall as also on the back consistent with multiple blows from a Billy club,” Dr. Giometti wrote.

A CT scan revealed hemorrhaging in Helms’ brain stem and bleeding in both temporal lobes, as well as a broken nose and fractured skull. Helms said in an interview that guards had beat him and slammed his head into a wall while he was handcuffed and shackled. He also said he was restrained with a collar and leash, like a dog. Staff at the Alexander facility had been ordered to discontinue the use of nylon leashes to control prisoners in 2006.

“They tried to break me,” said Helms, his voice now slurred. “They ...

$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. The decision was made in response to a demand letter sent the DOC’s attorney by general counsel for Prison Legal News (PLN) Daniel Manville.

At some point, Missouri DOC facilities began enforcing a policy prohibiting prisoners from receiving books unless the books were paid for with funds from the prisoner’s trust account. This policy was enacted despite the fact that DOC permits prisoners to receive magazine and newspaper subscriptions purchased for them by a third party or sent to them free of charge. Some facilties also required prior approval for books from vendors to be distributed to Missouri prisoners.

Earlier in 2009 Missouri prisoners informed PLN that books ordered from PLN on their behalf by third parties were being censored. Various DOC facilities refused to deliver the books and failed to provide notice of the censorship to either the prisoner or PLN. PLN Editor Paul Wright sent a ...

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 Hawaii Department of Public Safety traveled to Kentucky to investigate accusations that inmates at the prison, the Otter Creek Correctional Center in Wheelwright, including seven from Hawaii, had been sexually assaulted by the prison staff.

Otter Creek is run by the Corrections Corporation of America and is one of a spate of private, for-profit prisons, mainly in the South, that have been the focus of investigations over issues like abusive conditions and wrongful deaths. Because Eastern Kentucky is one of the poorest rural regions in the country, the prison was welcomed by local residents desperate for jobs.

Hawaii sent inmates to Kentucky to save money. Housing an inmate at the Women’s Community Correctional Center in Kailua, Hawaii, costs $86 a day, compared with $58.46 a day at the Kentucky prison, not including air travel.

Hawaii investigators found that at least five corrections officials at the prison, including a ...

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.

The suit was filed by Ohio psychologist Trudy Bond after the LSBEP dismissed her February 29, 2008 complaint seeking an investigation of James. Specifically, Bonds alleged that while James was chief psychologist and deputy director of the Guantanamo Behavioral Science Consultation Team from January to mid-May 2003, and chief psychologist at Abu Ghraib in 2004, he “supervised, condoned, authorized, and was aware or should have been aware” of abusive interrogation protocols and techniques at the two military prisons.

Those improper interrogation techniques allegedly included waterboarding, stress positions, isolation, sexual humiliation, threats of rape and other types of psychological abuse. [See: PLN, April 2005, p.1].

Bond’s complaint also alleged that military psychologists “reverse engineered” a program designed to train U.S. troops at high risk of capture how to resist interrogation and torture. The Survival, Evasion, Resistance and Escape (SERE) training program includes sleep deprivation, sexual humiliation, stress positions ...

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 various records under FOIA from the prison food services division. The prison provided Quint with the requested records, but then assessed a $137.25 charge against Quint’s trust fund account. Under then-existing rules, Connecticut prison officials were required to obtain reimbursement for copying fees incurred by indigent prisoners.

Quint filed an appeal with the Freedom of Information Commission. The Commission sustained Quint’s challenge to the prison’s policy of requiring reimbursement for copying fees by indigent prisoners. The prison officials appealed.

The Superior Court found the Commission’s decision was reasonable. Under the prison’s current policy, a prisoner “with no assets at all will have an encumbrance placed on his trust account,” which was inconsistent with the FOIA statute. Prison officials do not “have discretion to define indigence in a way that makes it impossible to obtain a complete fee waiver,” the court held. Truly indigent prisoners ...

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 in ad seg on September 12, 2002 after prison officials received reports from other prisoners and staff that he was “using his position as a ranking member of the Moorish Science Temple of America to direct and influence his followers to strong arm other prisoners, collect debts, approve prisoner assaults, and [was] involved in the approval and planning of a major serious assault on staff and a takeover of the housing unit and/or facility ... at Alger.”

Harden-Bey requested an investigation into his ad seg placement. After conducting a hearing on the matter, prison officials upheld his placement. In 2003, 2004 and 2005, Harden-Bey filed grievances complaining about his continued confinement in ad seg without periodic reviews. Each grievance was denied.

In December 2005, he filed a 42 U.S.C. § 1983 action against several prison officials, alleging that his continued confinement in ad seg violated his constitutional rights. The ...

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 section of the facility for prisoners with mental problems. After Teodorovic refused to clean up his unkempt cell, Sgt. John Mark Reimer ordered him out of the cell and had a trusty clean it. When Reimer ordered Teodorovic back into the cell, Teodorovic refused to go, saying, “No, no, TV.” Reimer approached Teodorovic to lead him into the cell and Teodorovic threw up his hands, hitting Reimer.

Reimer grabbed Teodorovic in a bear hug and took him down to the floor. While Reimer was on top of Teodorovic and restraining him, guard Paul Cote came into the cell block, approached them and began hitting, kicking and stomping Teodorovic while screaming obscenities and exclamations to never hit a guard. Reimer told Cote to stop but was ignored. Teodorovic lost consciousness; he remained in a coma until he died fourteen months later.

Cote asked Reimer to help him cover-up the beating. Reimer ...

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 in Pleasanton, where he received surgery and was hospitalized for more than a month at a cost of $237,167.88.

When ValleyCare demanded payment, both the city and county declined to cover Denham’s hospital bill. ValleyCare then sued the county and city in state court.
The Alameda County Superior Court ruled that the California Penal Code required reimbursement to ValleyCare. The county was dismissed from the suit as it did not have custody of Denham when he was taken to the hospital. The city was held liable and ordered to pay the cost of treatment, because Denham had been removed from the city jail to ValleyCare. See: Hospital Committee for the Livermore-Pleasanton Areas v. County of Alameda, Superior Court of Alameda County, Case No. VG04155957 (April 21, 2008).

Source: VerdictSearch California

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 minorities, sued for damages and declaratory relief after OPD officers pulled their pants down and publicly inspected their genital and anal areas.

Darnell Foster, with two months remaining on his successful five-year term of unsupervised probation, was stopped by OPD. Upon telling the officers that he was on probation, he was handcuffed and pat searched in front of a market. No contraband was found and there was no evidence of illegal activity. Next, the police removed him from the back seat of the police car, bent him over the hood, pulled his pants down and publicly inspected his genitals and anus. Finding no contraband, the police then drove Foster two blocks and asked him to make an undercover drug purchase, which he refused to do. Before being released he was cited for loitering with intent to sell narcotics; the charge was dismissed when neither citing officer appeared in court.

Rafael ...

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) proceeding involving Florida state prisoner William J. Sutton, which was dismissed by the trial court. After Sutton had fulfilled his fifteen-year prison sentence (including gain time awards), he was released under Florida’s Conditional Release Program Act (CRPA), which requires prisoners to remain under supervision of the Florida Parole Commission for a period of time equal to their gain time.

Upon his release Sutton was transferred to Florida’s civil commitment center for sex offenders, to await a trial where a jury would determine whether he qualified for indefinite commitment under the Jimmy Ryce Act (JRA). Under the JRA, a jury must decide if a prisoner is likely to commit new sex offenses, resulting in indefinite civil commitment upon such a finding.

Thus, upon completion of a prison sentence, prisoners who are deemed to qualify under the JRA pass from criminal to civil confinement. If the jury finds the prisoner ...

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 jurisdiction and that several of his conditions of confinement were unlawful. The district court sua sponte dismissed Thompson’s suit.

According to the district court, Thompson should have pleaded a civil rights action rather than a habeas petition under § 2241; the court could not decide a habeas petition containing claims for relief under § 2241 and civil rights law; and Thompson’s claims concerning the jurisdiction of his sentencing court were not cognizable under § 2241. Thompson appealed.

The Second Circuit quickly disposed of Thompson’s jurisdictional challenge to his conviction, agreeing with the district court that it was not cognizable under § 2241. The appellate court disagreed, however, with the lower court’s handling of Thompson’s conditions of confinement claims.

First, the Court of Appeals was puzzled by the district court’s conclusion that Thompson’s conditions of confinement challenge had to be brought in a civil rights action rather than ...

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.

After his parole was revoked, the Florida Department of Corrections (FDOC) forfeited all the basic gain time that Burks had earned prior to parole. Burks contended that the FDOC’s application of the 1983 version of § 944.275, Florida Statutes was disadvantageous to him.

That statute awards basic gain time. Under the 1983 version, it awards a lump sum of 10 days a month for each month served on a sentence, or one-third off. Under the prior version of the statute in effect at the time of Burks’ offense, basic gain time was earned under a 3-6-9 formula on a monthly basis. According to the FDOC’s pre-1983 rules, the gain time was to be awarded or withheld monthly, rather than as a lump sum under the current version of the law.

The Court of Appeal granted the certiorari petition, finding that the FDOC’s application of the gain time ...

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 adulterated by someone other than the defendant.

In 1998, Janice L. Perez pleaded guilty to bank robbery. She was sentenced to 77 months imprisonment to be followed by three years of supervised release. Perez started her supervised release term on March 8, 2007. On March 21, the day after she passed a urine test at the probation office, Perez reported to Freedom Recovery Services (FRS), an outside contractor used by probation officials to monitor persons on supervised release.

Perez voluntarily submitted to a urine test at FRS. She was under direct visual supervision by FRS personnel when the sample was taken and had no opportunity to adulterate or dilute the sample. According to the test results, Perez’s urine tested positive for cocaine. A second urine sample was not taken.

Perez’s urine was sent to Scientific Testing Laboratories, Inc. (STLI), the designated testing laboratory for U.S. Probation and ...

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 jail prisoner Carlton Benton, 25, leaving him unconscious without medical attention. Benton was awaiting trial on charges of double homicide; he was naked and handcuffed at the time of the incident, and later died at a hospital.

The coroner ruled that Benton’s June 1, 2004 death was due to natural causes related to a seizure, despite having found “recent abrasions on [his] neck, hands, and feet.” But the coroner did not have the whole story. Gray and Schmeltz tried to cover-up what happened by writing false reports, according to the indictment, and they were supported by Capt. Robert McBroom, an internal affairs investigator at the jail, and by Sheriff James Telb. McBroom and Telb were charged with making false statements during an investigation by the FBI.

The cover-up came to light after former guard Tina Anaya (AKA Tina Hill) came forward on March 10, 2008, the same day that ...

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 assistance to the warden of the federal prison in Lompoc, California while incarcerated there in 1994. In return for Ellis’ cooperation, the warden promised to transfer Ellis to a lower-security facility and write a letter to Ellis’ sentencing judge describing his assistance so the court could consider reducing his sentence.

The warden fulfilled both of his promises. Ellis was transferred to a lower-security prison, and his sentencing judge received a letter describing Ellis’ assistance. Neither the court nor the U.S. Attorney, however, took any action in response to the warden’s letter.

Some thirteen years later Ellis filed a motion in his criminal case seeking a reduced sentence, arguing that the government was required to file a Rule 35(b) motion on his behalf. According to Ellis, the government was bound by what was essentially a “promise” by the warden that Ellis would receive a reduced sentence. The district ...

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. He subsequently resigned. Another former Bibb County Correctional Facility guard, Woodrow W. Richardson, 37, pleaded guilty on August 25, 2009 to felony charges of smuggling marijuana to a prisoner in exchange for $800.

California: On August 28, 2009, Jorge Zorrilla, 52, a vocational instructor at the San Quentin Prison for 23 years, was charged with smuggling heroin into the facility. Zorrilla was arrested and then released on bail. He resigned from his job and faces up to six years in prison if convicted.

Colorado: In July 2009, BOP officials at Florence ADX, the federal government’s supermax prison, announced that two of President Barack Obama’s books have been banned because they allegedly contain material “potentially detrimental to national security.” Prisoner Ahmed Omar Abu Ali, who is serving a 30-year sentence at ADX for joining Al-Qaeda and plotting to kill then-President George W. Bush, attempted to order Obama’s books ...

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 Grinter, following the district court’s dismissal of all his claims after conducting the PLRA’s mandatory screening process pursuant to 28 U.S.C. § 1915(e).

According to the facts alleged in Grinter’s complaint, on January 4, 2003, Sgt. Chad Knight came to Grinter’s segregation cell to investigate an incident report that had been filed. Knight refused to add witnesses to the report as requested by Grinter; he then closed the cell’s food slot and slid the incident report under the door.

A sort time later, Lt. Tim White and another guard dressed in full riot gear approached Grinter’s cell. Grinter was ordered to remove his cloths; he was pinned to the wall while his linens and personal property were removed, then was placed in four-point restraints.
Grinter remained in restraints for four hours. The next day he was charged with a disciplinary violation for ...

 

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