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Prison Legal News: July, 2009

Issue PDF
Volume 20, Number 7

In this issue:

  1. Preserving the Rule of Law in America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform Act (p 1)
  2. From the Editor (p 10)
  3. Ninth Circuit Flip-Flops: Denial of Washington Sex Offender’s Community Custody Release Held Unconstitutional, Then Constitutional (p 10)
  4. Texas Posthumously Exonerates Man Who Died in Prison (p 12)
  5. $226,000 Workers’ Comp Settlement for Pennsylvania Guard Scarred by MRSA (p 13)
  6. ADA Routinely Violated by Prisons in the case of Deaf Prisoners (p 14)
  7. The Illusion of Immigrant Criminality: Getting the Numbers Wrong (p 16)
  8. Florida Guard Convicted of Assaulting Prisoner (p 17)
  9. Supreme Court Holds Supervisory Officials Not Liable for Abuse of 9-11 Detainees (p 18)
  10. $30,000 Settlement in Milwaukee Jail Death (p 19)
  11. Former Oregon DOC Food Manager Abandons Wife to Federal Prosecution; Herding Sheep in Iran While on the Lam (p 20)
  12. UNICOR Robs Jobs from Private Sector; Prisoners Sue Over Working Conditions (p 21)
  13. Prisoner’s Right to Mail Announcement of Peaceful Demon-stration Trumps Purported Prison Security Claims (p 22)
  14. University of Arizona Releases Report on Women Immigration Prisoners (p 22)
  15. $500,000 Awarded to New York Prisoner Raped by Jail Guard; Vacated on Post-Trial Motion (p 23)
  16. Habeas Hints: Traverse Motion Responses (p 24)
  17. Sentencing Project Releases Report on Sentencing Policy and Practice (p 26)
  18. Oregon Jail Guards Lose Access to Porn Sites (p 27)
  19. New Mexico Abolishes Death Penalty; Similar Efforts Fail in Other States (p 28)
  20. Arkansas Sends Toxic Tech Trash to UNICOR Recycling Program (p 28)
  21. FBI Arrests Former Prisoner Indicted for Hacking Massachusetts Jail Computer (p 30)
  22. $4.6 Million Settlements in Death of Quadriplegic D.C. Prisoner (p 30)
  23. Strip-Searched Iowa Bush Protesters Awarded Damages at Trial, Re-Trial (p 31)
  24. Positive Correlation between Mental Illness and Prison Victimization (p 32)
  25. Santa Cruz County, Arizona Pays $3 Million in Strip Search Suit (p 32)
  26. $10,000 Verdict in Sexual Assault by Virginia Guard (p 33)
  27. Report Says Unfinished Prison Project Is Single Greatest Iraq Reconstruction Failure (p 34)
  28. Bureau of Justice Publishes Report on Sexual Misconduct at Juvenile Facilities (p 34)
  29. Ohio Limits Electronic Monitoring to Only Those Who Can Pay (p 35)
  30. Miami’s Sex Offender Bridge Encampment Continues to Grow (p 36)
  31. BOP Failed to Protect Female Prisoner Informant from Rape, Sexual Abuse by Guards (p 36)
  32. $3,200 Awarded to Indiana Jail Prisoner for Negligent Medical Care (p 38)
  33. New York Prisoner Awarded $5,000 for Assault by Cellmate (p 38)
  34. Postal Service Panics Over Sex Offender Participant in Christmas Program (p 38)
  35. PLN Files Suit Against Los Angeles County for Failure to Comply with Public Records Act (p 39)
  36. Survivor Manual, compiled and edited by Bonnie Kerness, illustrated by Todd Tarselli and other talented artists, 90 pgs. (p 40)
  37. Causal Link Established by Prison Officials’ Failure to Protect Prisoner from Specific Threats (p 40)
  38. $3.3 Million Settlement Fund Established in New Mexico Jail Strip Search Settlement (p 41)
  39. California Jury Awards Deaf Prisoner $5,000 for Failure to Provide Interpreter; $193,582 in Fees Awarded by Court (p 42)
  40. Former California DOC Worker Kept Confidential Prison Gang Files at Home (p 42)
  41. Louisiana Private Prison Warden Arrested for Malfeasance (p 42)
  42. Massachusetts Prisoner Awarded $550,307 in Attorney Fees and Costs in Unsanitary Conditions Case (p 43)
  43. California: Waiver of Private Psychotherapist-Patient Privilege an Unreasonable Condition of Parole (p 44)
  44. Oregon Teenage Girls Stage Brazen Escape Attempt (p 44)
  45. $75,000 Settlement for Shutting Off Water in Seattle Jail Prisoner’s Cell (p 44)
  46. $445,000 Settlement in Ohio Jail Prisoner’s Medical Death (p 45)
  47. Pennsylvania County Sex Offender Residency Ordinance Voided (p 46)
  48. State, Not County, Required to Pay Attorney Fees in Georgia Death Penalty Cases (p 46)
  49. $9,000 Award for Hawaiian Prisoners Bitten By Dogs at Oklahoma CCA Prison (p 47)
  50. Florida and Oregon Prison Employees Face Sex Charges (p 47)
  51. Fifth Circuit Rules Texas Parole Law Not Ex Post Facto (p 48)
  52. No Qualified Immunity for Pepper Spraying Alabama Prisoner; Case Settles After Remand (p 48)
  53. News in Brief: (p 50)
  54. $1,800,000 Settlement in Michigan Jail Prisoner Suicide Case (p 52)

Preserving the Rule of Law in America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform Act

by Margo Schlanger and Giovanna Shay**

Prisons and jails pose a significant challenge to the rule of law within American boundaries. As a nation, we are committed to constitutional regulation of governmental treatment of even those who have broken society’s rules. And accordingly, many of our prisons and jails ...

From the Editor

The past few months have been very busy at PLN. In addition to publishing our first book, the Prisoners Guerrilla Handbook Guide to Correspondence Programs in the US and Canada, we have also been making significant administrative changes. We have changed the name of our non profit organization from Prisoners ...

Ninth Circuit Flip-Flops: Denial of Washington Sex Offender’s Community Custody Release Held Unconstitutional, Then Constitutional

Ninth Circuit Flip-Flops: Denial of Washington Sex Offender’s Community Custody Release
Held Unconstitutional, Then Constitutional

by Mark Wilson

Illustrating the axiom that the law means whatever a judge decides it means, in a 2-to-1 decision, a panel of the Ninth Circuit Court of Appeals held that Washington state law ...

Texas Posthumously Exonerates Man Who Died in Prison

by Matt Clarke

On February 6, 2009, Travis County District Judge Charlie Baird did what no other Texas judge had done before – he exonerated a dead man. Timothy Brian Cole, who died of asthma due to medical neglect while incarcerated in 1999, was declared innocent of the rape charges that ...

$226,000 Workers’ Comp Settlement for Pennsylvania Guard Scarred by MRSA

A Pennsylvania prison guard who contracted a staph infection that caused facial scarring has settled a workers’ compensation claim for $226,000.

While employed at the Graterford Prison in 2003, guard Carol Snyder contracted an infection. She awoke on the morning of December 30, 2003 with facial swelling and went ...

ADA Routinely Violated by Prisons in the case of Deaf Prisoners

Over the last forty years, Congress has enacted numerous laws specifically designed to assure disabled individuals access to the programs, activities, services, public facilities and other resources available to the general population. This access was originally stipulated in the Bill of Rights, but made more specific by these newer laws ...

The Illusion of Immigrant Criminality: Getting the Numbers Wrong

Immigrants aren’t a crime problem. “The foreign-born commit considerably fewer crimes than the native-born,” as President Herbert Hoover’s National Commission on Law Observance and Enforcement concluded in 1931 (National Lawyers Guild Quarterly, 10/39; Immigration Policy Center, Spring/07). While noncitizens now make

up more than 8 percent ...

Florida Guard Convicted of Assaulting Prisoner

On January 16, 2009, a federal jury in Jacksonville, Florida found a former state prison guard guilty of a federal felony civil rights violation for assaulting a prisoner in August 2005.

The prisoner, who was not named, allegedly feigned illness by lying on the floor of his cell at Florida ...

Supreme Court Holds Supervisory Officials Not Liable for Abuse of 9-11 Detainees

by Matt Clarke

On June 14, 2007, the Second Circuit Court of Appeals affirmed in part and reversed in part a district court’s denial of the government’s motion to dismiss a lawsuit alleging abuse of pre-trial detainees at the Brooklyn Metropolitan Detention Center (MDC) following the September 11 ...

$30,000 Settlement in Milwaukee Jail Death

The City of Milwaukee and other city officials settled a case involving a man who died in jail for $30,000. The case was published in April 2008. Felix Hopgood, 38, was arrested for shoplifting in July 2003. About 2½ hours after his arrest, while awaiting processing in the “bullpen ...

Former Oregon DOC Food Manager Abandons Wife to Federal Prosecution; Herding Sheep in Iran While on the Lam

Oregon Department of Corrections (ODOC) Food Services Administrator Farhad “Fred” Monem and his wife, Karen, accepted over $1.3 million in bribes and kickbacks in the worst public corruption scandal in Oregon’s history. [See: PLN, Aug. 2008, p.1].

While contemplating a plea bargain that required significant prison time ...

UNICOR Robs Jobs from Private Sector; Prisoners Sue Over Working Conditions

It is already hard enough for free world workers to hold down a job without having to compete with UNICOR, the prison labor arm of the federal Bureau of Prisons. But that is exactly what a group of more than 300 Pennsylvania employees are going through. The workers, employed by ...

Prisoner’s Right to Mail Announcement of Peaceful Demon-stration Trumps Purported Prison Security Claims

On October 21, 2008, the U.S. District Court for the Eastern District of California upheld a state prisoner’s First Amendment right to send mail after his letters to several media agencies were blocked by prison authorities. The letters asked the media to announce a peaceful demonstration by prisoners ...

University of Arizona Releases Report on Women Immigration Prisoners

by Matt Clarke

In January 2009, the Southwest Institute for Research on Women (SWIRW) and the Bacon Immigration Law and Policy Program of the University of Arizona published a report on women held in Arizona immigration prisons. It dealt with three locations: Central Arizona Detention Center (CADC) and Pinal County ...

$500,000 Awarded to New York Prisoner Raped by Jail Guard; Vacated on Post-Trial Motion

A New York federal jury awarded a woman $500,000 in a lawsuit claiming that her constitutional rights were violated when a guard forcibly raped her. The verdict, however, found the sheriff was not guilty of negligence, and the award was later vacated by the district court.

On December 17 ...

Habeas Hints: Traverse Motion Responses

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

Sentencing Project Releases Report on Sentencing Policy and Practice

by Matt Clarke

In February 2009, The Sentencing Project released a report on developments in sentencing policies and practices in 2008. The report notes that, with 2.3 million prisoners, 5 million citizens on parole or probation and a worldwide economic crisis, sentencing reforms to reduce the prison population have ...

Oregon Jail Guards Lose Access to Porn Sites

Guards at the Multnomah County Detention Center (MCDC) couldn’t be trusted to stay off Internet porn sites during work hours, so Sheriff Bob Skipper pulled the plug effective December 1, 2008.

Rampant, improper use of the Internet at the jail came to light in 2007 when a guard boasted ...

New Mexico Abolishes Death Penalty; Similar Efforts Fail in Other States

by David M. Reutter

“Regardless of my personal opinion about the death penalty, I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime,” said New Mexico Gov. Bill Richardson ...

Arkansas Sends Toxic Tech Trash to UNICOR Recycling Program

by Matt Clarke

A number of counties in Arkansas have been sending their toxic electronics waste, including broken computers and televisions, to Federal Prison Industries, Inc. (UNICOR), the industry program for the U.S. Bureau of Prisons (BOP).

UNICOR uses prisoners at a federal facility in Texarkana, Texas to process ...

FBI Arrests Former Prisoner Indicted for Hacking Massachusetts Jail Computer

On November 5, 2008, the FBI arrested Francis G. Janosko, 42, for hacking into a computer at the Plymouth County Correctional Facility (PCCF) while he was incarcerated at the Massachusetts jail.

A previously-sealed indictment was handed down a week before the arrest; however, the FBI was unable to apprehend Janosko ...

$4.6 Million Settlements in Death of Quadriplegic D.C. Prisoner

by David M. Reutter

When 27-year-old Jonathan Magbie entered the District of Columbia Jail to serve a 10-day sentence, he was a quadriplegic confined to a mouth-operated wheelchair. Four days later he was dead.

D.C. Superior Court Judge Judith E. Retchin sentenced Magbie to jail after he pleaded guilty ...

Strip-Searched Iowa Bush Protesters Awarded Damages at Trial, Re-Trial

by Matt Clarke

On June 4, 2008, a federal jury in Iowa awarded $750,000 to two political protesters who were arrested at the direction of the Secret Service, taken to jail and unlawfully strip-searched. After the court ordered another trial, a second jury awarded damages in the reduced amount ...

Positive Correlation between Mental Illness and Prison Victimization

In September 2008, the Center for Behavioral Health Services & Criminal Justice Research (the Center) published its Policy Brief regarding a recent survey conducted to determine the quality of life for prisoners in New Jersey’s Department of Corrections (DOC). The survey was funded by the Prison Rape Elimination Act of ...

Santa Cruz County, Arizona Pays $3 Million in Strip Search Suit

On November 25, 2008, following two days of negotiation mediated by retired Pima County, Arizona Superior Court Judge, Honorable Lawrence Fleishman, the parties involved in a Class Action complaint regarding unconstitutional strip searches reached a satisfactory settlement, which now is subject to approval by an Arizona district court.

The complaint ...

$10,000 Verdict in Sexual Assault by Virginia Guard

On October 20, 2008, a Virginia federal jury awarded a former Pittsylvania County Jail prisoner $10,000 in a lawsuit that claimed a guard had “sexually molested, harassed, and assaulted” her. The suit alleged that jail guard Hank Hazelwood violated Sheril Ann Carr’s Eighth and Fourteenth Amendment rights while ...

Report Says Unfinished Prison Project Is Single Greatest Iraq Reconstruction Failure

by Matt Clarke

On February 2, 2009, Stuart W. Bowen, Special Inspector General for Iraq Reconstruction, released a report on the United States’ appropriation of $50 billion for rebuilding efforts in Iraq.
The report, titled Hard Lessons: The Iraq Reconstruction Experience, blamed many of the problems encountered in reconstruction projects ...

Bureau of Justice Publishes Report on Sexual Misconduct at Juvenile Facilities

The Bureau of Justice Statistics (BJS) released a report on the prevalence of sexual misconduct and violence at juvenile residential facilities. The report, entitled Sexual Violence Reported by Juvenile Correctional Authorities 2005-06, is in accordance with the Prison Rape Elimination Act of 2003 (PREA). The PREA requires the BJS to ...

Ohio Limits Electronic Monitoring to Only Those Who Can Pay

If you’re convicted in Ohio and can afford to pay, you may be able to obtain release on electronic monitoring. If not, you can serve your time in the Corrections Center of Northwest Ohio (CCNO). That is the new policy adopted by CCNO to deal with a projected $200 ...

Miami’s Sex Offender Bridge Encampment Continues to Grow

by David M. Reutter

Population: 52. That’s how many sex offenders have been forced to live under the Julia Tuttle Causeway in Miami, Florida as of March 2009. In late 2007, the population was only 19. [See: PLN, June 2008, p.1].

With city and county laws creating restricted ...

BOP Failed to Protect Female Prisoner Informant from Rape, Sexual Abuse by Guards

The federal Bureau of Prisons (BOP) was “woefully deficient” in failing to protect a female prisoner from sexual abuse by BOP guards, U.S. District Court Judge Cecilia M. Altonaga concluded in November 2008, following a bench trial in a suit filed under the Federal Tort Claims Act (FTCA). Ultimately ...

$3,200 Awarded to Indiana Jail Prisoner for Negligent Medical Care

On December 2, 2008, a federal jury awarded Richard Petrig, a former prisoner, $3,200 for negligent medical care.

Petrig was attacked by his cellmate while incarcerated at the Posey County Jail in Indiana. After the attack, Petrig told jail officials that he needed help. He was seen by a ...

New York Prisoner Awarded $5,000 for Assault by Cellmate

A New York Claims Court awarded a prisoner $5,000 for being assaulted by his cellmate. The Court found that prison officials knew or should have known that a threat existed and they failed to act to prevent it.

While incarcerated at the Upstate Correctional Facility, prisoner Michael Gonzalez was ...

Postal Service Panics Over Sex Offender Participant in Christmas Program

by Matt Clarke

On December 18, 2008, just a week before Christmas, the U.S. Postal Service abruptly suspended its decades-old Operation Santa Claus, a holiday program in which volunteers sift through children’s letters addressed to Santa, “adopt” one or more letters, and then provide gifts to needy children ...

PLN Files Suit Against Los Angeles County for Failure to Comply with Public Records Act

As part of ongoing research, PLN submitted a public records request to the Los Angeles County Sheriff’s Department on January 29, 2008, seeking records related to settlements and verdicts resulting from tort, overdetention and civil rights claims involving both jail prisoners and employees.

Until 2007 the county posted such ...

Survivor Manual, compiled and edited by Bonnie Kerness, illustrated by Todd Tarselli and other talented artists, 90 pgs.

Book review by Sundiata Acoli

This is a Survivor Manual by survivors—so it can’t get much more real than that. Most of its contributors have spent many years in Control Units, some are still there while others have been back and forth multiple times.

A Control Unit, Control ...

Causal Link Established by Prison Officials’ Failure to Protect Prisoner from Specific Threats

The Eleventh Circuit Court of Appeals held that two Florida prison officials could be held liable under 42 U.S.C. § 1983 for failure to act upon a prisoner’s request for protection when he specified the nature of the threat.

Before the Court was the appeal of Everglades Correctional ...

$3.3 Million Settlement Fund Established in New Mexico Jail Strip Search Settlement

A $3.3 million settlement fund has been established in a class action lawsuit alleging an unconstitutional blanket strip search at the Valencia County Detention Center (VCDC) in New Mexico violated the rights of the class. VCDC was operated under contract by private prison vendor Cornell Companies, Inc.

The lead ...

California Jury Awards Deaf Prisoner $5,000 for Failure to Provide Interpreter; $193,582 in Fees Awarded by Court

A state court jury has awarded $5,000 to a deaf prisoner against the County of Los Angeles for failing to provide him with a sign language interpreter while he was in jail. The jury, however, found no liability for the same claim brought against the City of Torrance.

When ...

Former California DOC Worker Kept Confidential Prison Gang Files at Home

A former typist for the California Dept. of Corrections and Rehabilitation (CDCR) was convicted of having confidential prison gang files in her Sacramento home. The files also included the names and social security numbers of 5,500 state employees.

Convicted of theft in November 2008, Rachel Rivas Dumbrique (Rivas) was ...

Louisiana Private Prison Warden Arrested for Malfeasance

Leroy Holiday, Sr., 55, a regional warden for LaSalle Management Company, LLC (LMC), a private prison firm, was released on $5,000 bond after being arrested and booked into the LaSalle Parrish Jail in November 2008.

According to LaSalle Parish Sheriff Scott Franklin, Holiday was charged with improperly using prisoners ...

Massachusetts Prisoner Awarded $550,307 in Attorney Fees and Costs in Unsanitary Conditions Case

On December 30, 2008, a Massachusetts state court awarded a former prisoner $547,566 in attorney fees and $2,741 in costs and litigation expenses in a civil rights action in which the plaintiffs were awarded only nominal damages.

Stephen Doherty and ten other Massachusetts state prisoners filed a civil ...

California: Waiver of Private Psychotherapist-Patient Privilege an Unreasonable Condition of Parole

The California Court of Appeal (2nd District) agreed with a superior court that it was unreasonable for a parole officer to insist that a parolee must, as a condition of parole, waive his confidential privacy privilege with his private psychotherapist.

Reynaldo Corona was released on parole in May 2006 after ...

Oregon Teenage Girls Stage Brazen Escape Attempt

A bold and bloody escape attempt from an Oregon lockup sent three guards to the hospital. In a stunning twist, the masterminds behind the well-planned, brazen attempt were not hardened criminals, but rather a group of eight teenage girls ranging from 13 to 17 years old.

Close to midnight on ...

$75,000 Settlement for Shutting Off Water in Seattle Jail Prisoner’s Cell

Washington State’s King County Jail has settled a pre-trial detainee’s claim that he was unconstitutionally punished. The Jail settled the matter for $75,000. The basis of the claim was a guard shutting off the water in the prisoner’s cell for 30 hours.

Sidney Charles Randall was ...

$445,000 Settlement in Ohio Jail Prisoner’s Medical Death

Ohio’s Hancock County Jail agreed to pay $445,000 in the death of a prisoner. The settlement provides no liability of wrongdoing in the April 26, 2006 death of prisoner Lisa Waddell.
The suit was brought by Waddell’s daughter. Waddell was found unresponsive in her cell on April ...

Pennsylvania County Sex Offender Residency Ordinance Voided

by David M. Reutter

On March 20, 2009, a Pennsylvania federal district court held that an Allegheny County ordinance which restricted where sex offenders could live was in conflict with state law, and thus was invalid.

The plaintiffs in this case were a group of sex offenders whose residency was ...

State, Not County, Required to Pay Attorney Fees in Georgia Death Penalty Cases

On March 9, 2009, the Georgia Supreme Court affirmed a lower court’s order holding the Georgia Public Defender Standards Council (“Council”), in contempt for refusing to pay two defense lawyers in a death penalty case.

The Supreme Court’s unanimous decision involves the Council’s failure to pay $68 ...

$9,000 Award for Hawaiian Prisoners Bitten By Dogs at Oklahoma CCA Prison

On October 31, 2008, a Hawaiian state court awarded $3,000 each in damages to three Hawaiian prisoners who were bitten by dogs while incarcerated at a private prison in Oklahoma.
Jonathan K. Lum, John Daffron and Frank Frisbee are Hawaiian state prisoners who were incarcerated at the Diamond Back ...

Florida and Oregon Prison Employees Face Sex Charges

On November 7, 2008, prison guard Geno Lewis Hawkins was arrested by the Florida Department of Law Enforcement (FDLE) and the Inspector General’s Office of the Florida Department of Corrections (FDOC) on a charge of sexual battery.

In August 2008, FDLE and FDOC initiated a joint investigation of Hawkins ...

Fifth Circuit Rules Texas Parole Law Not Ex Post Facto

The U.S. Fifth Circuit Court of Appeals ruled that a Texas parole law created in 1993, but applied retroactively to capital offenders in 1995, was not ex post facto.

Billy Ray Wallace was sentenced in December 1981 for the crime of capital murder. At the time of his offense ...

No Qualified Immunity for Pepper Spraying Alabama Prisoner; Case Settles After Remand

by David M. Reutter

The Eleventh Circuit Court of Appeals held that pepper spraying a prisoner, keeping him in a small cell for longer than necessary to gain his compliance, and not allowing him to decontaminate properly or receive medical care after being sprayed can constitute excessive force and deliberate ...

News in Brief:

Alabama: In April 2009, two unnamed Walker County jail guards were suspended with pay pending an investigation into a female prisoner’s claim that she was raped by a male prisoner who had been temporarily transferred from state prison to the jail to attend a funeral. Sheriff John Mark Tirey ...

$1,800,000 Settlement in Michigan Jail Prisoner Suicide Case

On January 1, 2008, the defendants in a Michigan federal civil rights action involving the suicide of a jail prisoner settled the case for $1,800,000, the largest jail suicide settlement in Michigan history.

Tatisha Grant, 23, was arrested by River Rouge, Michigan police officers at about 2:00 ...