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Prisoner Education Guide

Prison Legal News: February, 2009

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Volume 20, Number 2

In this issue:

  1. Corruption in Orange County, CA Sheriff’s Department Revealed; Sheriff Resigns, Convicted on Criminal Charges (p 1)
  2. Second Chance Act Signed Into Law, But Not Yet Funded (p 8)
  3. From the Editor (p 8)
  4. Private Prison Companies Not Forthcoming About Immigration Detainee Deaths (p 10)
  5. BOP Suspends Use of Ion Spectrometry Drug Detection Devices (p 11)
  6. Officials Agree To Cap Population at D.C. Jail (p 12)
  7. Sixth Circuit Upholds Partial Denial of Qualified Immunity for MI Jail Guards’ Failure to Protect Sex Offender; Case Settles for $190,000 (p 13)
  8. Jose Medellin Executed; Vienna Convention Controversy Lives On (p 14)
  9. Changes in Texas Parole Laws Violate Ex Post Facto Clause (p 14)
  10. Department of Justice Report on Prison Rape Elimination Act (p 16)
  11. Fifth Circuit: § 1983 Nominal and Punitive Damages Allowed Absent Physical Injury (p 16)
  12. Report Criticizes Conditions in U.S. Immigrant Detention Center in Tacoma, Washington (p 18)
  13. Notwithstanding Federal Healthcare Receiver, California Prisoners Can Still Use State Habeas Corpus to Redress Medical Complaints (p 18)
  14. Washington DOC Restarts Private Industry Prison Jobs Following State Constitutional Amendment (p 20)
  15. Ohio Settles Actual Innocence Claim For $1,500,000 (p 21)
  16. Alaskan Prisoner in Arizona Can Enforce CCA Contract (p 22)
  17. Supreme Court of Canada: No Wage Loss Compensation While in Prison Caused by Sexual Assault by Staff (p 22)
  18. GAO Report Critical of BOP’s Methodology for Comparing Costs Between BOP and Private Facilities (p 24)
  19. $400,000 Award in Failure to Protect Connecticut Suicidal Prisoner (p 24)
  20. BOP Agrees to Provide Wine to Prisoner for Religious Rituals (p 25)
  21. Nominal Damages for Atlanta Georgia Jail’s Ban on Magazines, Books and Newspapers (p 26)
  22. Utah Sex Offender Internet Registry Statute Violates First Amendment (p 26)
  23. Texas Awards Prison Phone Contract (p 27)
  24. Jury Awards Almost $900,000 to Dallas County Jail Stroke Victim (p 28)
  25. Alameda County, CA Settles Jail Suicide Suit for $800,000 (p 28)
  26. Former California Prison Doctor Admits Negligence, Gets Probation; CDCR Medical Care Issues Still Unresolved (p 29)
  27. No Private Cause of Action for Businesses Complaining that Competitor Unfairly Used Prison Labor (p 30)
  28. More Damages, Costs & Attorney Fees Awarded in NH False Disciplinary Case (p 30)
  29. Writ Writer: One Man's Journey for Justice (p 32)
  30. Ex-Mayor Returned to Prison After Misleading BOP to Enter Drug Program (p 33)
  31. Ninth Circuit: Orange County Jail PLRA Injunction May Not be Terminated as to Ongoing Violations (p 34)
  32. Prisoner Litigation Swamps California Eastern District Court; Ninth Circuit Recruits Other Judges to Help (p 34)
  33. Kitsap County, Washington Jail Settles Public Records Act Suit for $125,000 (p 35)
  34. Los Angeles Sheriff Department Report: Prisoner Lawsuits Slowed, But Payouts Grew (p 36)
  35. Corpus Christi Pays $50,000 to Settle Jail Prisoner’s Excessive Force Claim (p 36)
  36. Washington State Deputy Sheriff Not Entitled to Quasi-Judicial Immunity (p 37)
  37. TDCJ Employee Wins $1,505,000 for Texas Prison System’s Failure to Accommodate (p 38)
  38. Wisconsin Claims Board Awards Almost $110,000 for Wrongful Rape Conviction, Attorney Fees (p 38)
  39. Behavior Modification Training to Become Part of Washington State DOC (p 38)
  40. Class Action Disability Discrimination Suit Certified Against Cook County Jail in Illinois (p 39)
  41. Oregon Parolee Negligent Supervision Case Reinstated (p 40)
  42. $4.5 Million Settlement in New Jersey Jail Strip Search Lawsuit (p 40)
  43. Denial of Allocution Right on Supervised Release Resentencing Requires Remand (p 41)
  44. Transgender Idaho Prisoner Receives Hormone Therapy Pending Trial (p 42)
  45. Governments, Not Prisoners, Must Pay Cost of Transporting Prisoner Witnesses (p 42)
  46. Ohio DNA Specimen Law Ruled Not Retroactive (p 44)
  47. Unemployment Compensation Denied to Guard Who Failed to Stop Prisoner Assault (p 44)
  48. PLRA Requires Grievance Exhaustion for ADA/RA Claims (p 45)
  49. Sixth Circuit Outlines Exceptions to Heck Favorable-Termination Doctrine (p 46)
  50. California Sex Offender’s Probation Travel Restrictions Abated (p 46)
  51. Washington Classification Reassessment Requires Notice and Hearing (p 47)
  52. Arbitrator Awards Hawaii Prisoner $7,500 for Injuries Sustained While Working in Kitchen (p 47)
  53. Kentucky Jails’ Seizure of Funds for Booking, Room and Board Fees Upheld (p 48)
  54. Pennsylvania Prisoner Appointed Counsel on Retaliation / MRSA Infection Claims (p 48)
  55. Retroactive Residency Restrictions for Missouri Sex Offenders Unconstitutional (p 49)
  56. Washington Prisoner Suit for “Prevailing Wages” from Private Employer Fails (p 50)
  57. News in Brief: (p 50)
  58. South Carolina Jail Pays Prisoners $80,000 for Failure to Prevent/Treat MRSA (p 52)
  59. No Prison Guinea Pigs: President Obama Should Act Now To Ensure Prisoners Aren’t Used For Medical Research (p 55)
  60. Deceased New York Prisoner Wins Barber/Cosmetology Licensing For Ex-Cons (p 55)
  61. $1.5 Million Settlement in Alabama Probation Officer's Sex Scandal (p 2008)

Corruption in Orange County, CA Sheriff’s Department Revealed; Sheriff Resigns, Convicted on Criminal Charges

Corruption in Orange County, CA Sheriff’s Department Revealed; Sheriff Resigns, Convicted on Criminal Charges

by Marvin Mentor

Former Orange County, California Sheriff Michael S. Carona and many of his staff at the Theo Lacy jail have resigned or been fired after widespread misconduct was exposed.
A 2007 Special Criminal Grand ...

Second Chance Act Signed Into Law, But Not Yet Funded

Second Chance Act Signed Into Law, But Not Yet Funded

by Brandon Sample

On April 9, 2008, President Bush signed the Second Chance Act into law. The Second Chance Act (P.L. 110-199), a bi-partisan effort, was designed to expand and improve prisoner reentry programs with the goal of reducing recidivism.

The Act authorizes the expenditure of $362 million during 2009 and 2010 for a variety of initiatives, most of which are targeted at state prisoners. For example, the Act includes grants for mentoring and job training programs by nonprofit organizations for offenders released from prison; for the creation of state, local and tribal reentry courts; for drug treatment alternatives to incarceration, including family-based treatment for incarcerated parents; and for improvements in educational programs, including the establishment of a career project to train prisoners for technology-based jobs during the three-year period before their release.

The Act also calls for the development of a federal reentry initiative and pilot program that allows certain elderly federal prisoners to serve the remainder of their sentences on home confinement. Sex offenders are not eligible for this program.

Further, the Act amends 18 U.S.C. § 3624, authorizing the Bureau of Prisons (BOP) to ...

From the Editor

This is the first issue of PLN published during the Barak Obama presidency. Hopefully we will see change for the better. Even before he took office Obama and Biden were making good on their promises to provide billions of dollars to local police departments to put another 50,000 cops on the streets. To bypass the senate they are planning to take funds from the bank bailout “stimulus” package and use it for more cops. Since every major police and prison guard union and law enforcement association had endorsed Obama and Biden’s campaign this appears to be the immediate payback. Bush had ended that federal subsidy to local law enforcement which was a Clinton project dating to the 1994 Crime Bill which Senator Biden authored. We shall see what happens. To date, as we report in this issue of PLN, the Second Chance Act, which was passed by congress last year to help the reentry of released prisoners into society has yet to be funded. Billions for cops, nothing for reentry. We will continue to hope for change. Change for the better.

I would like to thank those who donated to PLN’s annual fundraiser. We will tally and ...

Private Prison Companies Not Forthcoming About Immigration Detainee Deaths

Private Prison Companies Not Forthcoming About Immigration Detainee Deaths

by Matt Clarke

The private prison industry has benefited from a recent influx of contracts from the federal government to incarcerate immigration detainees. Such contracts are more lucrative than those for imprisoning state prisoners. However, questions have been raised about the quality of medical care provided to immigration detainees, and neither the federal government nor private prison contractors have been forthcoming about details related to the deaths of 66 detainees between January 2004 and November 2007.

There wouldn’t even be a public list of immigration prisoner deaths had Congress not demanded one from Immigration and Customs Enforcement (ICE). Congress became involved after relatives of deceased detainees complained about the lack of information they were given about the deaths, and how they had not been told their relatives were sick or in the hospital.

One example was the death of Boubacar Bah, 52, a native of Guinea who had a successful New York business creating handmade clothes. Bah had overstayed his tourist visa. He returned to Guinea to visit his family; while he was abroad his application for a green card was denied, revoking his permission to reenter the country. He was ...

BOP Suspends Use of Ion Spectrometry Drug Detection Devices

On April 10, 2008, the federal Bureau of Prisons (BOP) discontinued the use of all ion spectrometry drug detection machines, more commonly known as ion scanners. According to a memo from BOP assistant director Joyce K. Conley, “the software for these machines requires correction and we have contacted the manufacturers to ensure they make the necessary modifications.”

The memo further stated that any BOP visitor whose visiting privileges were suspended as a result of the ion scanners could request reinstatement of their privileges by contacting the warden of the institution. Prisoners could request reinstatement on behalf of visitors affected by the ion scanners by contacting their unit team.

Most federal prisoners and their family members have long known that the BOP’s ion scanners were less than accurate. The devices, which use little wands waved over the hands and clothes of potential visitors, are supposed to detect the presence of narcotics. If drugs are detected the visitor is not allowed to visit.

Chris Dehmer, a federal prisoner at FCI Pekin whose visitors repeatedly tested positive for drugs, sued the BOP in federal court in 2007. He argued that the scanning procedures used by prison officials violated his constitutional rights.

Dehmer ...

Officials Agree To Cap Population at D.C. Jail

After decades of fighting lawsuits, skirting court orders, and defying legislative decrees, the District of Columbia Mayor’s Office has finally agreed to a definitive population cap at the notoriously overcrowded and dangerous D.C. Jail.

Under the terms of the settlement, the jail will hold no more than 2,164 prisoners—a number arrived at more than four years ago by the District’s own correctional consultants.
In two rulings spanning a decade, the Superior Court of the District of Columbia held in 1975 and again 1985 that the jail’s continuous overcrowding regularly violated the Eighth Amendment rights of convicted prisoners and pretrial detainees to be free from cruel and unusual punishment.

This chronic overcrowding, the court held in a 1985 contempt hearing, resulted in prisoners being forced to stay in their cells with no water or basic supplies, haphazard laundry service, and substandard medical care. Not surprisingly these base conditions led to regular assaults and stabbings. Noting the unwillingness of officials with the D.C.
Department of Corrections (DCDC) to remedy the constitutional violations, the court imposed a population cap of 1,694 based on testimony of the then-Assistant Director of the DCDC who testified that the ...

Sixth Circuit Upholds Partial Denial of Qualified Immunity for MI Jail Guards’ Failure to Protect Sex Offender; Case Settles for $190,000

Sixth Circuit Upholds Partial Denial of Qualified Immunity for MI Jail Guards’ Failure to Protect Sex Offender; Case Settles for $190,000

The U.S. Court of Appeals for the Sixth Circuit has affirmed in part and reversed in part a Michigan district court’s denial of qualified immunity to two ...

Jose Medellin Executed; Vienna Convention Controversy Lives On

Jose Medellin Executed; Vienna Convention Controversy Lives On

by Matt Clarke

On August 5, 2008 at 9:48 p.m., the State of Texas began the lethal injection that ended the life of Jose E. Medellin. In doing so, it ignored orders from the International Court of Justice at The Hague, more commonly known as the World Court.Medellin was the lead figure in a series of World Court actions taken by Mexico against the United States that centered on the failure of U.S. officials to inform criminal defendants facing the death penalty of their right to contact their embassy, and to inform embassy officials of the detention of their citizens. Such rights are included in the Vienna Convention, an international treaty to which the United States is a signatory.

The Vienna Convention actions by Mexico resulted in the World Court ordering the U.S. to review the cases of 51 Mexican nationals on death rows in various states to determine whether their rights under the Vienna Convention had been violated. [See: PLN, Sept. 2004, p.12]

The governor of Oklahoma commuted the death sentence of one Mexican citizen to life without parole after the World Court ruling was ...

Changes in Texas Parole Laws Violate Ex Post Facto Clause

by Matt Clarke

On March 29, 2007, a federal court ruled that changes in Texas parole laws, practices and procedures violated the federal ex post facto clause when applied retroactively.

Barry Michael Wion, a Texas state prisoner, was convicted in 1985 of three sex offenses involving children and sentenced to 99 years in prison. In 1997, the Texas Legislature passed SB 45, later codified as Texas Government Code § 508.046, which singled out certain sex offenders and prisoners with capital life sentences for special negative treatment during parole hearings.

After being denied parole in 2004, Wion filed state habeas actions challenging the changes resulting from SB 45 and related changes in parole practices as being ex post facto violations when retroactively applied to his case. His state habeas petitions were dismissed. He then filed a federal habeas action under 28 U.S.C. § 2254.

As a preliminary matter, the district court found that Wion’s habeas petition was timely filed. In so ruling, the court counted his request for a special review by the parole board as an attempt to exhaust state remedies, and the one-year limitations period did not begin until after the special review was denied. Alternately, the ...

Department of Justice Report on Prison Rape Elimination Act

Department of Justice Report on Prison Rape Elimination Act

by Matt Clarke

In September 2007, the National Institute of Corrections (NIC) of the U.S. Department of Justice (DOJ) released the annual report for calendar 2006 on DOJ’s implementation of the Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. § 15601, et seq. The report noted the methods used by the Office of Justice Programs (0JP), its subcomponents: National Institute of Justice (NIJ), Bureau of Justice Statistics (BJS), Review Panel on Prison Rape (RPPR) and Bureau of Justice Assistance (BJA); the Attorney General’s Office (AGO) and NIC to comply with the legislative mandates of the PREA.

The PREA established a zero tolerance standard for rape and sexual assault in prisons, jails, police holding facilities, including juvenile facilities (prison rape). It tasked various DOJ components as follows: BJS must collect, review and analyze reports of prison rape, including the common characteristics of victims, perpetrators and prison and prison systems with high and low rates of prison rape. RPPR must conduct hearings on prison rape and was given subpoena power to call officials from the three prisons with the highest rate of prison rape and the two with the ...

Fifth Circuit: § 1983 Nominal and Punitive Damages Allowed Absent Physical Injury

Fifth Circuit: § 1983 Nominal and Punitive Damages Allowed Absent Physical Injury

For the first time in a published opinion, the Fifth Circuit U.S. Court of Appeals has held that a prisoner pursuing a civil rights action against prison officials may seek nominal and punitive damages even if no physical injury is alleged.

Ronald L. Hutchins, a Texas state prisoner, filed a pro se 42 U.S.C. § 1983 civil rights suit in federal district court against Johnny B. McDaniels, a Texas prison guard, alleging that McDaniels had improperly strip searched him in violation of his Fourth Amendment rights.

Hutchins claimed that while he was waiting for a scheduled law library session, McDaniels ordered him to strip, then to “lean against a wall and stick his buttocks out as far as possible and spread his legs wide.” McDaniels told Hutchins “to step back, lift one leg up, hop on one foot, switch legs and go in the opposite direction about thirty feet.”

Hutchins protested that he couldn’t do so due to a back injury and bad ankle, but McDaniels threatened to lock him up if he failed to comply. According to Hutchins, McDaniels carried out the ...

Report Criticizes Conditions in U.S. Immigrant Detention Center in Tacoma, Washington

Report Criticizes Conditions in U.S. Immigrant Detention Center in Tacoma, Washington

by David M. Reutter

Conditions at the federal immigration center in Tacoma, Washington, are substandard and not in compliance with national standards, “much less international human rights law.” The is the conclusion drawn by a 65-page report issued by the Seattle University School of Law International Human Rights Clinic in collaboration with One America, an immigrant rights group.

The report examines conditions at the Northwest Detention Center (NWDC) in Tacoma. It is located on the Tacoma Tideflats, a former toxic waste dump site. Originally open with 500 beds in 2004, it now has 1,000 beds with plans to add another 500. The facility is operated by the GEO Group, who is paid $95 per day per detainee.

While officials with the U.S. Immigration and Customs Enforcement (ICE) say the report is “filled with inaccuracies and vague allegations,” the conditions are similar to other reports on conditions operated by GEO. Moreover, the report was compiled from interviews with 46 people: 41 detainees, a family member, and four attorneys representing detainees. The investigation also made two tours of NWDC, followed by a question and answer session ...

Notwithstanding Federal Healthcare Receiver, California Prisoners Can Still Use State Habeas Corpus to Redress Medical Complaints

The California Court of Appeal, Fifth Appellate District, held that even though the California Department of Corrections and Rehabilitation (CDCR) was under the supervision of a court-appointed federal healthcare Receiver, state prisoners nonetheless retained the right under state law to seek individual redress from deficiencies in medical care. Prisoners raising such claims should file state habeas corpus petitions naming both the facility’s warden and the Receiver as respondents.

Jesus Estevez, a CDCR prisoner at Kern Valley State Prison, filed a habeas petition in Kern County Superior Court alleging a failure by medical staff to provide him with long-recommended spinal surgery and follow-up treatment. The petition was denied and Estevez, still proceeding pro se, petitioned the Court of Appeal.

After requesting several informal responses from both the prison warden and the federal Receiver as to the issues of jurisdiction, mootness following Estevez’s intervening surgery, and the interplay between the Receiver’s authority and the warden’s duty to provide health care to state prisoners, the Court determined that it had jurisdiction.

In their responses, both the warden and Receiver conceded that state courts had both statutory and constitutional jurisdiction to hear a habeas corpus petition regarding prison healthcare. They ...

Washington DOC Restarts Private Industry Prison Jobs Following State Constitutional Amendment

Washington DOC Restarts Private Industry Prison Jobs Following State Constitutional Amendment

by John E. Dannenberg

After eliminating private industry prison work programs in response to a Washington State Supreme Court ruling declaring the underlying statute unconstitutional (see related article on Talon Industries v. Washington DOC in this issue), the Washington Dept. of Corrections (WDOC) reversed course on August 8, 2008 and began inviting private companies to hire prisoners at prevailing wages.

The about-face came after Washington voters approved a constitutional amendment specifically permitting such prison work programs for the intended purpose of reducing recidivism by better preparing offenders for post-release employment. These “Class I” jobs were distinguishable from internal prison industry Class II jobs, which are limited to filling state agency consumption needs – such as eyeglasses, furniture and food for prisoners and welfare recipients.

The WDOC’s earlier private industry prison work program had employed about 300 prisoners. A lawsuit brought by an industry association complained that those were 300 jobs not available to non-incarcerated workers. Moreover, the offer of free prison facility work space with reduced-rate utilities was an unfair advantage against companies that didn’t use prison labor.

Following the 2004 demise of the private industry prison work program ...

Ohio Settles Actual Innocence Claim For $1,500,000

Ohio and Ohio prosecuting officials settled a wrongful incarceration lawsuit by agreeing to pay $1,500,000 to a man who was imprisoned for 26 years after his conviction for a robbery and murder he did not commit.

Gary James, 55, and his friend Timothy Howard were convicted of a ...

Alaskan Prisoner in Arizona Can Enforce CCA Contract

The Supreme Court of Alaska held that state prisoners incarcerated at a private prison in Arizona can enforce portions of the contract between the Alaska Department of Corrections (DOC) and Corrections Corporation of America (CCA) that incorporate provisions of Smith v. Cleary, 24 P.3d 1245 (Alaska 2001) [PLN, June 2003, p.26], the seminal case that set forth the duty that Alaska owes to its prisoners.

Gus Rathke, an Alaskan prisoner, was incarcerated at a private prison in Florence, Arizona run by CCA pursuant to the CCA/DOC contract when he received a disciplinary infraction after failing a drug test. He was given 30 days in isolation, prevented from having a paying job for 90 days, and removed from CCA’s substance abuse program. He consistently denied using drugs and requested retesting.

After Rathke was released from punitive segregation he filed a grievance over the drug test. His urine sample had tested positive for THC metabolites using a 20 nanograms per milliliter (ng/ml) cutoff point, the Arizona standard. The standard for Alaskan prisoners, as set forth in Cleary and the CCA/DOC contract, is 50 ng/ml. Rathke’s urine sample was retested at 50 ng/ml and ...

Supreme Court of Canada: No Wage Loss Compensation While in Prison Caused by Sexual Assault by Staff

Supreme Court of Canada: No Wage Loss Compensation While in Prison Caused by Sexual Assault by Staff

On February 8, 2008, the Supreme Court of Canada ruled that a prisoner cannot recover damages for lost wages that occurred while he was incarcerated.

Dean Richard Zastowny was 18 when he committed burglaries to support his crack cocaine habit. Convicted of breaking and entering, he was sent to Oakalla prison in British Columbia where Roderick David MacDougal worked as a classification officer. MacDougal twice sexually assaulted Zastowny by forcing oral sex on him, using threats and inducements.

Zastowny was released from prison a year later, became addicted to heroin, and maintained a criminal lifestyle that resulted in his incarceration for 12 of the next 15 years. While serving time for robbery seven years after his initial release, Zastowny learned that MacDougal was being investigated. He contacted the police and MacDougal was subsequently convicted of the sexual assaults.

Zastowny then filed suit against British Columbia, alleging that the government was vicariously responsible for the emotional injuries he suffered due to MacDougal’s sexual abuse. A psychologist who was also an expert on heroin addicts testified that Zastowny exhibited low self-esteem, anti-social behavior and sexual ...

GAO Report Critical of BOP’s Methodology for Comparing Costs Between BOP and Private Facilities

GAO Report Critical of BOP’s Methodology for Comparing Costs Between BOP and Private Facilities

by Brandon Sample

In October of 2007, the U.S. Government Accountability Office (GAO), the audit, evaluation, and investigative arm of Congress, issued a report criticizing the Federal Bureau of Prisons’ (BOP) methodology for comparing the costs of housing low and minimum security offenders in private facilities as opposed to BOP-run facilities.

Proponents of private prisons argue that they are cheaper; others question whether they are really a low-cost alternative. Congress sought to help settle the dispute with a little-known provision in the Science, State, Justice, Commerce and Related Agencies Appropriations Act of 2006 that required the GAO to compare the costs of confining federal prisoners in BOP and private low and minimum security facilities.

However, after meeting with officials from the BOP and seven private prisons, GAO determined that it was unable to conduct a “methodologically sound” cost comparison because BOP does not collect comparable operational data from private facilities.

BOP attempted to defend its data collection practices arguing that (1) Federal Acquisition Regulations (FAR) do not require comparative cost-analysis and (2) imposing such a requirement on contractors “might” cause higher contract prices.

GAO agreed ...

$400,000 Award in Failure to Protect Connecticut Suicidal Prisoner

$400,000 Award in Failure to Protect Connecticut Suicidal Prisoner

A Connecticut judge has awarded a prisoner’s estate $403,164.30, finding the City of Hartford police were liable for the prisoner’s suicide death. At a bench trial, the Court held the arresting officer had a duty to advise the ...

BOP Agrees to Provide Wine to Prisoner for Religious Rituals

On September 18, 2008, the Bureau of Prisons (BOP) settled a lawsuit brought under the Religious Freedom Restoration Act (RFRA) for wine during various religious rituals.
Brandon Sample, a federal prisoner and PLN contributing writer, sued the BOP under RFRA after he was denied the use of wine during his Sabbath and Passover rituals.
Sample, a practicing Jew, claimed that the BOP’s refusal to provide him with at least three ounces of Kedem Concord Kal, a low-alcohol content red wine, every Friday night and Saturday morning for the ritual of Kiddush, the sanctification blessing over the Sabbath, and four cups of at least three ounces of wine during the annual Passover seders violated RFRA.

After a round of summary judgment motions and two published opinions by the district court finding that (1) Sample’s beliefs were sincere; (2) the BOP’s refusal to provide the wine substantially burdened Sample’s beliefs; and (3) the BOP had a compelling governmental interest – in the form of maintaining security – for not providing the wine, the parties began discovery to flesh out the remaining question in the case: whether the BOP’s outright denial of Sample’s request constituted the least restrictive means ...

Nominal Damages for Atlanta Georgia Jail’s Ban on Magazines, Books and Newspapers

On April 17, 2008, a Georgia federal court granted a prisoner summary judgment and nominal damages in a lawsuit over a jail policy that barred prisoners from receiving books, newspapers and magazines.

David Robertson was incarcerated in the Fulton County (Atlanta) jail from April 2005 through April 2007. He filed ...

Utah Sex Offender Internet Registry Statute Violates First Amendment

On September 25, 2008, a federal court in Utah enjoined the enforcement of an amended statute requiring the state’s 7,000 registered sex offenders to report all of their Internet identifiers, including user names, passwords and website addresses.

In 2005, a Utah man identified as John Doe was convicted of sex offenses against a minor. He served 13 months in prison and was released without parole or other form of supervision. Due to his conviction, Doe was required to register on Utah’s sex offender registry, which “is administered and maintained by Utah’s Department of Corrections” (UDOC).

Effective July 1, 2008, the Registry Statute was amended to require sex offenders to provide the UDOC with “any electronic mail, chat, instant messenger, social networking or similar” online identifiers used for Internet communication, as well as the name and Internet address of all such websites used and any passwords associated with an online identifier. The statute made it a felony not to provide this information.

One week before its effective date, Doe challenged the amendment in federal court. He moved for a temporary restraining order (TRO), which the district court granted on June 30, 2008.

Doe then moved for summary ...

Texas Awards Prison Phone Contract

On August 14, 2008, the Texas Board of Criminal Justice (TBCJ) awarded a phone service contract to two companies, Kansas-based Embarq Corp. and Dallas-based Securus Technologies, Inc. Prior to this historic event, the Texas Dept. of Criminal Justice (TDCJ) was the only state prison system in the nation that did not let prisoners make phone calls. The contract was awarded during a TBCJ meeting held at a motel in Austin; prior to the contract award, details of the bids were confidential.

It is now known that Global Tel*Link and Unisys also submitted proposals, with Global Tel offering the lowest bid. But the TBCJ didn’t accept the lowest bid; after all, it will be prisoners and their families paying for the phone calls, not the state. Instead, the TDCJ accepted the higher Embarq/Securus partnership bid with rates of 26¢/minute for in-state and 43¢/minute for out-of-state collect calls, and 23¢/minute for in-state and 39¢/minute for out-of-state prepaid calls. The contract will result in the installation of approximately 5,000 phones at 113 prison sites by April 2009, which will be used by about 160,000 Texas prisoners.

To be eligible to make phone calls, prisoners ...

Jury Awards Almost $900,000 to Dallas County Jail Stroke Victim

After a one week trial and a day of deliberation a federal jury awarded Stanley Shepherd $890,336 when a stroke he suffered, in the Dallas County jail, left him permanently paralyzed.

On October 4, 2003 Shepherd was admitted to Dallas County jail as a pre-trial detainee. He was still ...

Alameda County, CA Settles Jail Suicide Suit for $800,000

Alameda County, CA Settles Jail Suicide Suit for $800,000

Following a mistrial, California’s Alameda County settled a wrongful death claim resulting from a jail detainee’s suicide for over $800,000. The federal lawsuit was brought by the prisoner’s minor children.

The plaintiffs claimed that as Richard Lebon was being ...

Former California Prison Doctor Admits Negligence, Gets Probation; CDCR Medical Care Issues Still Unresolved

by John E. Dannenberg

Dr. Bonifacio Esperanza, a physician formerly employed by the California Department of Corrections and Rehabilitation (CDCR), was accused of gross negligence by the Medical Board of California for his alleged mistreatment of seven prisoners at Centinela State Prison. The Medical Board filed a formal complaint against Esperanza in Administrative Law Court in July 2008.

Esperanza, 66, retired from the CDCR in 2007 pending termination proceedings; he is presently in private practice. He obtained his California medical license in 1980 following his graduation from Far Eastern University in the Philippines.

One of the Medical Board charges stemmed from a July 2006 case in which a 55-year-old prisoner complained of chest pain and shortness of breath. Even though a nurse gave him aspirin and oxygen, the prisoner’s electrocardiogram detected heart beat irregularities. Esperanza, who was on call, neither examined the prisoner nor sent him to an outside hospital for emergency care.

In a second case, Esperanza had removed a fistula from the buttocks of a 20-year-old prisoner but failed to provide follow-up treatment for four months despite the prisoner’s constant complaints. He never sent the prisoner to a surgeon; the prisoner subsequently developed an infection that ...

No Private Cause of Action for Businesses Complaining that Competitor Unfairly Used Prison Labor

No Private Cause of Action for Businesses Complaining that Competitor Unfairly Used Prison Labor

by John E. Dannenberg

The Washington Water Jet Workers Association (“Water Jet”) sued the Washington Department of Corrections (WDOC), claiming the WDOC had illegally contracted with a water jet firm, MicroJet, thereby violating the Washington state constitution’s prohibition on contracting for prison labor.

MicroJet had set up shop at the Monroe Corrections Center, where prisoners were employed at below-market wages. Although the Washington Supreme Court eventually held that WDOC’s below-market contracting of prison labor violated state law, it remanded to the trial court to determine whether Water Jet could maintain a private cause of action against WDOC for its transgressions.

Water Jet had sued for damages, arguing that Washington state law RCW 72.09.100(1) created a duty to protect businesses from unfair competition, such as prison laborers who were not paid the local prevailing wage. Water Jet also claimed violation of rights under 42 U.S.C. § 1983, denial of due process of law, and a tort claim for violation of the state constitution. However, the trial court ruled that absent establishing that the WDOC had intentionally interfered with a contractual business relationship ...

More Damages, Costs & Attorney Fees Awarded in NH False Disciplinary Case

More Damages, Costs & Attorney Fees Awarded in NH False Disciplinary Case

Three prisoners involved in two federal civil rights lawsuits against officials of the Hillsborough County House of Corrections in New Hampshire (the jail) were awarded nominal, compensatory and punitive damages plus attorney fees and costs.

On July 14 ...

Writ Writer: One Man's Journey for Justice

Writ Writer: One Man’s Journey for Justice?A co-production of Passage Productions and the Independent Television Service ?(ITVS), in association with Latino Public Broadcasting
Directed by Susanne Mason; 2008, 60 Minutes, $34.98 (personal use)
http://www.writwritermovie.com/index.html

Reviewed by David Preston

De profundis clamavi ad te, Domine. [From the depths I cry out to thee, O Lord]
With one minor change, the opening line of Psalm 129 could have been Fred Arispe Cruz’s personal motto. Cruz languished in the depths of the Texas prison system for nearly a decade before a court finally heard his cry and set him free. In the process, he almost singlehandedly invented a new legal institution: the “jailhouse lawyer.” Susanne Mason’s documentary, Writ Writer, tells Cruz’s amazing story using excerpts from his autobiography, interviews with fellow prisoners, and commentary from some of the attorneys who eventually took up Cruz’s cause.

In the Deep South of the early-1960s, the idea that a lone prisoner, unaided by a legal defense fund or team of media-savvy lawyers, could outflank a brutal prison warden and his minions would have seemed preposterous enough. That this prisoner could have been someone like ...

Ex-Mayor Returned to Prison After Misleading BOP to Enter Drug Program

Ex-Mayor Returned to Prison After Misleading BOP to Enter Drug Program

by Brandon Sample

Bill C. Campbell, the former mayor of Atlanta, Georgia, was returned to federal prison after it was discovered he had lied to gain entrance into the Bureau of Prisons’ (BOP) Residential Drug Abuse Program (RDAP). Successful completion of the RDAP results in a sentence reduction of up to one year.

Campbell, who was sentenced to 30 months for tax evasion, graduated from the RDAP on December 7, 2007. Shortly thereafter he was transferred to a halfway house. He was scheduled to be released four months early on June 23, 2008 for completing the RDAP, but was sent back to prison after federal prosecutors in Atlanta protested.

Throughout Campbell’s criminal trial, he consistently maintained that he did not suffer from a drug or alcohol abuse problem. According to Campbell’s Presentence Investigation Report (PSI), for example, he drank “alcoholic beverages in order to participate in toasts. He has not otherwise drank alcohol and just does not like the taste of it.” Campbell’s attorney had stated he had “no health or substance abuse problems.”

Nevertheless, shortly after entering prison, Campbell sought treatment for being a “champagne alcoholic ...

Ninth Circuit: Orange County Jail PLRA Injunction May Not be Terminated as to Ongoing Violations

Ninth Circuit: Orange County Jail PLRA Injunction May Not be Terminated as to Ongoing Violations

The Ninth Circuit U.S. Court of Appeals has held that evidence of ongoing American with Disabilities Act (ADA) violations and inadequate access to exercise and religious services precluded Orange County, California jails from obtaining termination of injunctions under the Prison Litigation Reform Act (PLRA).

Following earlier rulings in U.S. District Court for the Central District of California in Pierce v. County of Orange, Case No. CV-01-00981-GLT and Stewart v. Gates, Case No. CV-75-03075-GLT, the district court had ordered fourteen findings of relief from conditions of confinement at Orange County jails.

The Stewart orders required receipt of reading materials by mail (newspapers, magazines and paperback books), as well as mattresses and beds, access to law books, a population cap, eight hours of uninterrupted sleep per night, blankets, telephone access, inter-jail communication with “jailhouse lawyers,” and at least 15 minutes to eat a meal.

As to Administrative Segregation (“Ad Seg”) prisoners, the court ordered access to religious services, a day room, exercise and visitors. At issue was the County’s request to terminate those orders pursuant to 42 U.S.C. § 3626 on grounds ...

Prisoner Litigation Swamps California Eastern District Court; Ninth Circuit Recruits Other Judges to Help

Prisoner Litigation Swamps California Eastern District Court; Ninth Circuit Recruits Other Judges to Help

by John E. Dannenberg

The U.S. District Court, Eastern District of California, has reached a crisis stage due to excessive caseload, resulting principally from prisoner filings. Each of the Eastern District’s judges handled an average of 420 prisoner petitions during fiscal year 2007, up to four times the number in California’s three other federal districts.

To break this legal logjam, the Ninth Circuit Court of Appeals has taken the unprecedented step of asking federal district judges from Montana to Hawai’i to take on prisoner cases from the Eastern District.

With jurisdiction over 19 of California’s 33 state prisons that house approximately 100,000 prisoners, as well as several federal facilities, the Eastern District is a hub for prisoner litigation. Indeed, 2,521 of the 5,480 cases filed in the court in 2007 – some 46 percent – came from prisoners. Such cases often consume excessive court time as they usually involve handwritten pleadings filed by prisoners with little legal acumen.

Presently over 2,500 prisoner cases are pending in the Eastern District, including civil rights lawsuits, death penalty appeals and habeas petitions. At least ...

Kitsap County, Washington Jail Settles Public Records Act Suit for $125,000

Kitsap County, Washington Jail Settles Public Records Act Suit for $125,000

On May 16, 2008, the Kitsap County Sheriff’s Office agreed to pay $125,000 to a former prisoner for violations of Washington’s Public Records Act.

In September 2006, Jeffery McKee, then a prisoner at the Kitsap County Corrections ...

Los Angeles Sheriff Department Report: Prisoner Lawsuits Slowed, But Payouts Grew

Los Angeles Sheriff Department Report: Prisoner Lawsuits Slowed, But Payouts Grew

by John E. Dannenberg

In its July 2008 25th semi-annual report, the Los Angeles County Sheriff’s Department (LASD) reviewed prisoner litigation against the county in the six-year period from 2001-2007. While the report noted a “welcome reduction” of new cases, suggesting that newer jail management practices had been fruitful, it observed that the total dollar amount of settlements had nonetheless increased.

The report compared two three-year intervals: 2001-2003 and 2004-2007. In the earlier period, the number of jail-related civil lawsuits filed averaged 300 per year, while the corresponding total payout was $9.9 million. In the later interval, the average number of new suits dropped to 233, but payouts rose to $10.8 million. Doing the math, the corresponding dollar cost increase per case filed grew from $33,021 in 2001-2003 to $44,804 in 2004-2007. While the report noted wide swings in individual years, this was attributable to the timing of settlements, not to the incidence of malfeasance. Nonetheless, the drop from 300 to 233 new suits filed per year was taken by LASD as affirmation that newer policies to reduce liability were working.

Examining the cases LASD ...

Corpus Christi Pays $50,000 to Settle Jail Prisoner’s Excessive Force Claim

Corpus Christi Pays $50,000 to Settle Jail Prisoner’s Excessive Force Claim

The City of Corpus Christi, Texas, agreed to settle an excessive use of force claim brought by a former detainee at the City Detention Center (CDC) for $50,000.

The claim arose from events that are alleged to ...

Washington State Deputy Sheriff Not Entitled to Quasi-Judicial Immunity

Washington State Deputy Sheriff Not Entitled to Quasi-Judicial Immunity

The Washington Court of Appeals held that a deputy sheriff who was negligent in transporting a prisoner from court to jail was not entitled to quasi-judicial immunity.

Anthony Reijm was taken into custody on the order of Skagit County District Judge Stephen Skelton after failing to abide by certain previously-imposed conditions of his release. Sheriff’s Deputy Deanna Randall arrived to take Reijm to jail.

Rather than place Reijm in handcuffs, Randall, who was at least a foot shorter than Reijm, put her hand on his elbow and escorted him on the short walk from the courtroom to the jail. Along the way, Reijm broke free and knocked down John Lallas, a security guard at the courthouse. Reijm was later discovered hiding in a stairwell a few blocks away. Lallas was taken to a hospital via ambulance.

Lallas sued Randall and Skagit County for damages related to the injuries he sustained when Reijm escaped. The defendants contended that they could not be sued because Randall was acting as “an arm of the court” when she carried out Judge Skelton’s order to take Reijm into custody. The trial court agreed, holding the defendants ...

TDCJ Employee Wins $1,505,000 for Texas Prison System’s Failure to Accommodate

An El Paso jury awarded $1,505,000 to a former employee of the Texas Department of Criminal Justice (TDCJ) for the prison system’s failure to accommodate her severe asthma by refusing to remove automatic air fresheners from an office area.

Linette Weller was a senior chemical dependency counselor ...

Wisconsin Claims Board Awards Almost $110,000 for Wrongful Rape Conviction, Attorney Fees

Wisconsin Claims Board Awards Almost $110,000 for Wrongful Rape Conviction, Attorney Fees

In 1990, Anthony Hicks was convicted of raping a woman who lived in his apartment building. He was sentenced to 19 years in prison. Central to the state’s case were pubic hairs found on the victim which ...

Behavior Modification Training to Become Part of Washington State DOC

Behavior Modification Training to Become Part of Washington State DOC

Governor Chris Gregoire signed Senate Bill 6400 into law on March 20, 2008. The bill enacts a revolutionary concept designed to correct what politicians perceive to be, the morally corrupt character of its state prisoners.

The behavior bill is intended to help men and women prisoners develop prosocial behaviors that will enhance their successful reintegration into society as law abiding citizens. Educators and counselors are to be employed to teach various skills such as managing emotions, religious tolerance and ethics, and morally acceptable behavior.

Provisions of the behavior bill include the identification and integration of already existing state services, the improved collaboration of those services and the creation of new services and programs.

The program is designed to be both secular and nondenominational. Spokespersons from various groups will be included in coordinating its implementation. Prosecuting attorneys and defense lawyers, faith-based groups and victim’s rights advocates, victim’s family members and family members of prisoners are to be included in the program’s oversight committee. Plans of the oversight committee are scheduled to be put in place by June 10, 2010.

Though the concept is secular and nondenominational prison chaplains are to be ...

Class Action Disability Discrimination Suit Certified Against Cook County Jail in Illinois

Class Action Disability Discrimination Suit Certified Against Cook County Jail in Illinois

On March 26, 2008, U.S. District Court Judge Elaine E. Bucklo certified a class action lawsuit against the Cook County Department of Corrections (CCDC) alleging violations of the Americans with Disabilities Act (ADA) and Rehabilitation Act (RA).

Derrick Phipps, Kevin House, Kenneth Courtney and James Grant, all paraplegic or partially handicapped individuals, filed suit against Cook County, Illinois and the Sheriff of Cook County, alleging violations of the ADA and RA. According to their complaint, the CCDC discriminated against them by failing to provide adequate beds, showers and toilets for wheelchair-bound pretrial detainees between 2006 and 2007.

Phipps and the other plaintiffs alleged they had suffered bed sores, rashes and other physical injuries caused from falls while trying to use non-handicapped accessible facilities, as well as emotional distress.

The plaintiffs moved to certify a class against CCDC comprised of all current and former wheelchair-bound prisoners subjected to discrimination under the ADA and RA after July 11, 2005. Cook County opposed the motion, arguing that the requirements for class certification – numerosity, commonality, typicality, adequacy of representation, predominance and superiority – were not present. The court disagreed.

Addressing ...

Oregon Parolee Negligent Supervision Case Reinstated

The Oregon Court of Appeals reversed a lower court’s grant of summary judgment against a teenage girl who was raped by a violent parolee.

In November 1997, 14-year-old Akilah Johnson was assaulted and raped by a stranger. More than four years later, on April 29, 2002, Ladon Stephens was arrested on charges arising from a different rape. DNA tests linked him to Johnson’s rape, the rapes of three other young girls, and to the highly publicized 2001 rape and murder of 14-year-old Melissa Bittler. PLN has previously reported on the Bittler case [see: PLN, June 2005, p.6].

Johnson was not initially informed that DNA had established that Stephens was her rapist. A May 30, 2002 story in The Oregonian newspaper reported Stephens’ “arrest for the rape of a Portland woman and similarities to the rapes of other victims.” The article described details of earlier rapes, which matched the details of Johnson’s rape, but did not mention her name.

When Stephens raped Johnson he was under post-prison supervision for three attempted kidnappings; he had served six years in prison. On May 31, 2002, The Oregonian reported that “Stephens had ‘been under high-level supervision and undergoing sex offender ...

$4.5 Million Settlement in New Jersey Jail Strip Search Lawsuit

$4.5 Million Settlement in New Jersey Jail Strip Search Lawsuit

New Jersey’s Cumberland County has agreed to pay $4.5 million to settle a class action strip search lawsuit. This is another huge settlement in Fourth Amendment claims of this type. Like others, this case involved the strip searching ...

Denial of Allocution Right on Supervised Release Resentencing Requires Remand

Denial of Allocution Right on Supervised Release Resentencing Requires Remand

The Seventh Circuit Court of Appeals has reversed a federal prisoner’s sentence because an Illinois federal district court denied his right to allocution upon revocation of his supervised release and imposition of a new sentence.

Bernard J. O’Hallaren III was required to serve 36 months of supervised release after completing his federal prison sentence on a charge of interstate transportation of stolen property. O’Hallaren did not comply with his conditions of release for long. At his first and only meeting with a probation officer, he tested positive for cocaine. The probation office then filed a special report that cited five grounds to revoke his supervised release.
At a hearing, the government agreed to O’Hallaren’s alternative sentencing proposal that involved a voluntary drug treatment program, provided that it included a subsequent 120-day outpatient program that would require O’Hallaren to live at the Salvation Army.
The probation office objected to this arrangement, arguing that O’Hallaren was a public risk because he continued to use drugs, past treatment programs had not worked for him, and he persisted in disobeying the law.

The district court scheduled another hearing to allow testimony on the validity ...

Transgender Idaho Prisoner Receives Hormone Therapy Pending Trial

A federal judge has ordered the Idaho Department of Corrections (IDOC) to provide hormone therapy to a prisoner with gender identity disorder pending trial.

The preliminary injunction, issued July 27, 2007, was in response to a lawsuit filed by Jennifer Spencer, 27, who was born a biological male but lived as a woman before going to prison in 2000 on charges of possessing a stolen car and escape. On the outside Spencer had taken birth control pills in an effort to develop the secondary sexual characteristics of a female. Following her imprisonment, Spencer obtained a legal name change from her original name of Randall Gammett.

In September 2003, Spencer informed prison officials that she believed she had gender identity disorder after discovering the IDOC had a policy specifying treatment options for the disorder. Prison physicians, however, refused to prescribe the female hormone estrogen. Instead they first diagnosed her with a non-specific sexual disorder, then later bipolar disorder, and recommended the male hormone testosterone.

Less than a year later, in August 2004, Spencer unsuccessfully tried to hang herself in her cell. In October 2004 she tried to castrate herself. The first attempt was unsuccessful, but she succeeded 10 days later.

Spencer ...

Governments, Not Prisoners, Must Pay Cost of Transporting Prisoner Witnesses

A federal court in Georgia held that costs taxed against an incarcerated litigant who lost his lawsuit could not include the cost of transporting prisoner witnesses to testify at trial.

Dexter Palmer, a Georgia state prisoner, filed a civil rights suit in federal district court under 42 U.S.C. § 1983 that alleged excessive use of force by prison guards. As part of the jury trial, other state prisoners were transported to the court as witnesses. The jury verdict was against Palmer.

The defendant prison officials filed a post-trial motion for costs in the amount of $1,560.56, which included $1,257.17 for transporting the prisoners who were witnesses. The court granted the motion and Palmer filed a motion to reconsider.

The district court noted that costs were authorized under Federal Rule of Civil Procedure 54(d)(1). However, the only costs that could be taxed were those authorized by statute.
Taxable costs are set by 28 U.S.C. § 1821(f), which does not include the cost of transporting prisoners to appear as witnesses at trial. Furthermore, Congress authorized the issuance of a writ of habeas corpus ad testificandum to secure the testimony of prisoner witnesses in ...

Ohio DNA Specimen Law Ruled Not Retroactive

The Ohio Supreme Court held that a state law requiring convicted felons and some misdemeanants to provide DNA specimens could not be applied retroactively to offenders placed on supervised release before the law’s May 2005 effective date.

On August 6, 2002, Craig Consilio pleaded guilty to DUI, a fourth degree felony. He was sentenced to six months in jail and three years community supervision.

While Consilio was still on supervision the Ohio legislature enacted HB525, amending R.C. 2901.07(B)(3)(a) to require all felony and some misdemeanor offenders to submit a DNA specimen when on supervised release. HB525 became effective on May 18, 2005. It did not expressly address retroactivity.

The probation office informed Consilio that he would be required to provide a DNA sample under HB525. Consilio filed a motion in opposition, arguing that the amended statute could not be applied to him because it was not in effect when he was sentenced. The trial court denied the motion, finding the amended statute applied to all individuals on supervised release regardless of when they were sentenced. Consilio appealed.

While the appeal was pending, on January 10, 2006, Consilio’s community supervision ended. The following month ...

Unemployment Compensation Denied to Guard Who Failed to Stop Prisoner Assault

Unemployment Compensation Denied to Guard Who Failed to Stop Prisoner Assault

The Commonwealth Court of Pennsylvania has held that a guard who was fired for willful misconduct for failing to report the planned assault of a prisoner was not entitled to unemployment compensation. The Court reached the same conclusion after a reversal and remand.

The Court’s initial ruling reversed an order entered by the Unemployment Compensation Board of Review (Board), which held the former guard, D. Lee Martin, had good cause for the policy violation.

While employed at Pennsylvania’s SCI-Camp Hill, Martin heard rumors that a fellow guard planned to have a prisoner assaulted. Fearing that other guards “would retaliate against him by shunning him, refusing to work with him, delaying responses to emergency situations, or causing personal injury” if he reported the planned assault, Martin did not report it.

While working in the control room “bubble” on July 13, 2005 with the guard who was rumored to have planned the assault and a third guard, Martin heard a prisoner screaming from a cell in a fellow guard’s cellblock. That guard ignored Martin’s request to stop what he suspected was the planned assault. Martin did not call for back up ...

PLRA Requires Grievance Exhaustion for ADA/RA Claims

The Ninth Circuit Court of Appeals has joined the Sixth Circuit in holding that the Prison Litigation Reform Act (PLRA) requires exhaustion of Americans with Disabilities Act (ADA) and Rehabilitation Act (RA) claims.

Nevada prisoner Roy O’Guinn had a history of mental illness, brain damage and organic personality disorder, requiring medical treatment. On November 9, 2004, he filed a complaint with the U.S. Department of Justice (DOJ), alleging prison officials had violated the ADA and RA by failing to adequately treat his mental disability.

On January 4, 2005, O’Guinn sued the Nevada Department of Corrections (NDOC) and several individual prison officials in federal court, alleging ADA and RA violations. He attached his DOJ complaint to the suit. He acknowledged that he had not exhausted NDOC grievance procedures because “Grievance [is] not applicable to ADA/Rehab Act and is not required under these acts.”

The district court characterized O’Guinn’s lawsuit as a civil rights action under 42 U.S.C. § 1983, and dismissed the action for failure to exhaust administrative remedies as required by the PLRA. Following an evidentiary hearing the court determined that O’Guinn had “failed to file NDOC grievances related to mental health ...

Sixth Circuit Outlines Exceptions to Heck Favorable-Termination Doctrine

Sixth Circuit Outlines Exceptions to Heck Favorable-Termination Doctrine

The Sixth Circuit Court of Appeals has held the favorable-termination doctrine does not apply to 42 U.S.C. § 1983 actions brought by prisoners who were foreclosed from challenging their incarceration in a habeas action or who are only challenging the procedures that led to the incarceration and not the underlying conviction or duration of sentence.

The Court’s ruling comes in an appeal brought by Ohio’s Hamilton County Public Defenders (HCPD) office, which was sued by Michael Powers. An Ohio federal district court granted Powers’ motion for summary judgment in his class action lawsuit that contended the HCPD had a custom or policy of failing to seek indigency hearings on behalf of criminal defendants facing jail time for unpaid fines.

Powers was ordered to pay a $250 fine in lieu of a 30-day suspended jail sentence for a misdemeanor traffic offense. Two months later he was arrested for failing to pay the fine. After he pled guilty to the violation the jail sentence was imposed, causing him to spend at least one day in jail.

The HCPD argued that Powers’ § 1983 complaint was barred by Heck v. Humphrey, 512 U ...

California Sex Offender’s Probation Travel Restrictions Abated

by John E. Dannenberg

Kenneth Smith was convicted of committing a lewd act on his stepdaughter and sentenced to three years in prison, which was suspended in lieu of five years probation. Upon learning that Los Angeles County had a blanket policy disallowing registered sex offenders from leaving the county, even for job-related reasons, he asked the sentencing court for relief.

After the court denied his request because it would present “difficult monitoring problems,” the appellate court ruled that the superior court had failed to consider his particularized needs and that such a “mass treatment approach does not serve either of the goals of probation, public safety or rehabilitation.”

In 2006, Smith pled no contest to one count of violation of Penal Code § 288(a), a registerable sex offense. He lived in Lancaster but his job required him to drive outside the county. For example, he could drive 95 miles to Long Beach, but not 10 miles to Rosamond. Smith filed a motion for modification of conditions of probation to allow him to go where needed on his job, but return home to Lancaster every night. The motion was denied based solely upon Smith’s sex offender status.

The Court ...

Washington Classification Reassessment Requires Notice and Hearing

The Washington State Court of Appeals held that reassessment of a prisoner’s risk classification which made him ineligible for a 50 percent sentence reduction, without notice or an opportunity to be heard, violated due process.

In 2004, Charles Leon Wheeler pleaded guilty to possession of stolen property and was sentenced to 57 months in prison. He “believed he would be eligible for a 50 percent earned early release under … RCW 9.94A.728(1)(b).” Prisoners in the Washington Department of Corrections (DOC) who are classified in one of the two lowest risk categories (RM-C and RM-D) qualify for the reduction, while those classified in the two highest categories (RM-A and RM-B) do not. The classification is based on the offender’s criminal history and the DOC’s risk assessment.

Initially, the DOC placed Wheeler in category RM-C, making him eligible for 50 percent earned early release. Subsequently, however, the DOC reassessed his risk level and placed him in category RM-B – which rendered him ineligible.

Wheeler filed a personal restraint petition (PRP) in state court, objecting to the DOC’s determination that he was ineligible for the 50 percent earned early release credit.
Wheeler also argued the DOC had ...

Arbitrator Awards Hawaii Prisoner $7,500 for Injuries Sustained While Working in Kitchen

On March 10, 2008, a Hawaii prisoner was awarded $7,500 through arbitration after being burned by hot coffee.

On April 3, 2007, Will Kaaihue received second degree burns down the left side of his body while working in the kitchen at the Halawa Correctional Facility. Kaaihue had been attempting ...

Kentucky Jails’ Seizure of Funds for Booking, Room and Board Fees Upheld

Kentucky Jails’ Seizure of Funds for Booking, Room and Board Fees Upheld

The Sixth Circuit Court of Appeals has held that the seizure of jail prisoners’ canteen funds for booking and room and board fees does not violate due process.

When Campbell County and Kenton County (Kentucky) detain individuals in their jails, any money the detainee possesses is deposited into a canteen account. People in the community may also deposit money into a detainee’s account. The funds can be used for commissary purchases.

Campbell County automatically removes a $30 fee from jail canteen accounts to cover booking and arraignment costs. Kenton County does not charge the $30 booking fee until the prisoner is released. Both counties charge room and board – $20 per day in Campbell County and $5 per day in Kenton County.

“Campbell County withholds up to one quarter of any monetary gifts to the inmate to cover these fees as well as up to a quarter of any funds remaining in an inmate’s canteen account at the end of each day,” the Court observed. “Kenton County recovers per diem fees by withholding up to one half of any funds given to an inmate as well as ...

Pennsylvania Prisoner Appointed Counsel on Retaliation / MRSA Infection Claims

Pennsylvania Prisoner Appointed Counsel on Retaliation / MRSA Infection Claims

A Pennsylvania federal district court appointed counsel to a prisoner in a lawsuit claiming he contracted a serious infection and faced retaliation after filing grievances about his medical condition.

While housed at Pennsylvania’s SCI-Chester, state prisoner Jose Crespo contracted Methicillin Resistant Staphylococcus Aureus (MRSA). His lawsuit against 14 health workers (nurses and doctors) and administrative prison staff contended that unsanitary conditions at the facility resulted in his contracting the infection, which manifested itself in pus-filled bumps covering various portions of his skin.

Crespo filed grievances based upon the fact that 1) he was repeatedly reinfected with MRSA and 2) he was charged for each medical treatment despite believing it was a chronic condition for which he should have only been charged once. His pro se lawsuit claimed that in order to silence him about his MRSA infection and related issues, prison officials transferred him to SCI-Graterford, using a skirmish he had with another prisoner as a pretext for the transfer.

Before the district court was Crespo’s motion to appoint counsel. The court found the motion had arguable merit and passed the criteria that the court had to assess, which included: 1 ...

Retroactive Residency Restrictions for Missouri Sex Offenders Unconstitutional

by Matt Clarke

On May 24, 2007, Cole County, Missouri Circuit Court Judge Patricia S. Joyce ruled that a Missouri statute requiring certain registered sex offenders to move if they lived within 1,000 feet of a school (§ 566.147, R.S.Mo.) was unconstitutional as applied to offenders who had established residences that predated the statute.

R.L., a registered Missouri sex offender, filed suit in state court after his probation officer notified him that he had violated probation by failing to move from his residence which was located within 1,000 feet of an elementary school. In 2004, the Missouri Legislature enacted § 566.147.1, which made it a Class D felony for certain sex offenders to establish a residence within 1,000 feet of a school. Effective June 5, 2006, § 566.147.1 was amended to include sex offenders who resided within 1,000 feet of a school if the school existed at the time they established their residence.

R.L. was notified that his residency constituted a Class D felony; he was instructed to stop living at that location and develop a relocation plan with an agreed upon timeframe or face revocation of his probation. R ...

Washington Prisoner Suit for “Prevailing Wages” from Private Employer Fails

Washington Prisoner Suit for “Prevailing Wages” from Private Employer Fails

by John E. Dannenberg

The Washington state Court of Appeals has affirmed a superior court’s denial of a “prevailing wage” claim filed by state prisoners employed by Elliott Bay Metal, Inc.
(Elliott), a private employer operating inside prison walls under a state Free Venture Industry program. The appellate court rested its determination upon an earlier ruling that the private prison industry program was facially unconstitutional in Washington.

Shawn Greenhalgh and other Washington state prisoners had sued the Department of Corrections (WDOC) to obtain payment of prevailing wages at their industry job with Elliott. The prisoners complained that Elliott had deceptively misclassified their work duties so as to avoid paying prevailing wages for the type of work they actually performed. The Snohomish Superior Court denied relief on the basis that the statute provided no private cause of action under which to sue.

Further, while the industry program was in fact authorized by state statute (RCW 72.09.100(1)), that statute had since been found unconstitutional in Washington Water Jet Workers Association v. Yarbrough, 151 Wash.2d 470, 90 P.3d 42 (Wash. 2004) (Water Jet II), because Washington’s state Constitution ...

News in Brief:

Arizona: On November 20, 2008, Earl Lappe, 32, a prisoner at the Lewis Morey Unit of the state prison in Buckeye was killed, apparently by another prisoner. In October, 2008, Duffy Kilrain, another prisoner at a separate prison, was also murdered.

California: On December 22, 2008, Angel Rodriguez, 22, a prisoner at the R.J. Donovan Correctional Facility died after a struggle with guards. A female relative was visiting him in his cell when guards allegedly saw her give him a small package through his cell bars which he then swallowed. He went into “medical distress” while restrained and guards removed drugs from his throat while giving him CPR. The relative was arrested on charges of delivering narcotics.

Croatia: In November, 2008, Ivan Damjanovic, the director of the nation’s prison system, was fired after the Croatian newsweekly Globus did an expose on prisoners at the Lepoglava prison enjoying cell phones, drugs and prostitutes and having orgies in which guards joined in. Corruption is apparently rampant with prisoners paying bribes of up to 1,500 Euros to be sent to minimum security prisons despite laws banning such placements until prisoners have served at least half of their sentences. Several prison ...

South Carolina Jail Pays Prisoners $80,000 for Failure to Prevent/Treat MRSA

$80,000 to South Carolina Jail Prisoners for Failure to Prevent and Treat MRSA

South Carolina’s Greenville County has agreed to pay $80,000 to settle 25 prisoners’ lawsuit that claims jail officials failed to take preventive measures to prevent the spread of an outbreak of Methicillin Resistant Staphylococcus Aureus ...

No Prison Guinea Pigs: President Obama Should Act Now To Ensure Prisoners Aren’t Used For Medical Research

No Prison Guinea Pigs: President Obama Should Act Now To Ensure Prisoners Aren’t Used For Medical Research

by Allen M. Hornblum and Jeffrey Ian Ross

We keep hearing that President Barack Obama is intent on correcting the excesses of the previous administration, whether it’s waterboarding or dirty air or international relations.
But how about this: There exists the possibility that prisoners in American jails could be used for “voluntary” experiments - clinical trials for drugs, new surgical procedures and the like. It’s a troubling piece of Bush-era business that the president could correct with the stroke of a pen.

For more than two years, we, as members of a liaison panel advising the Institute of Medicine, have been waiting for an answer from the secretary of health and human services concerning the troubling potential for convicts in American prisons to be used for experiments. In 2006, the formal IOM committee recommended that convicts be made available for human subject research - a possible return to the mindset that gave us horrors such as the Tuskegee Syphilis Study. Fortunately, the Bush administration did not act on the recommendation, but the lack of a decision has not given us any comfort. This country’s leaders ...

Deceased New York Prisoner Wins Barber/Cosmetology Licensing For Ex-Cons

Three years after his death, ex-con Marc LaCloche won his long-fought case to permit ex-cons in New York state the right to gain barber and cosmetology licenses.

LaCloche, after an 11-year stint in New York prison, sought to make a living as a barber - a skill he had learned in prison. But New York prohibited felons from receiving business licenses, notwithstanding the state’s Correction Law that prohibited discrimination based solely on a criminal record. The New York State Licensing Authority said that LaCloche’s criminal history alone proved he did not have the “good moral character and trustworthiness” that would be requisite for a business license. In other words, his record per se doomed him from lawfully plying the trade the prison had trained him for.

LaCloche unsuccessfully took his case to the courts. Later, he convinced a more sympathetic legislature to pass a bill that would permit felons to earn barber and cosmetology licenses, but then-Governor Eliot Spitzer vetoed it. When the bill was renewed in 2008, it was approved by new Governor David Paterson.

Paul Samuels, president of the New York criminal justice policy group Legal Action Center, said of the prior blanket ban, “It’s telling ...

$1.5 Million Settlement in Alabama Probation Officer's Sex Scandal

$1.5 Million Settlement in Alabama Probation Officer's Sex Scandal

A $1.5 million dollar settlement has been reached in a lawsuit claiming an Alabama probation officer raped a female probationer and made inappropriate sexual advances towards eleven other female probationers.

The complaint in the action made claims against ...


 

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