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Prisoner Education Guide

Prison Legal News: August, 2009

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Volume 20, Number 8

In this issue:

  1. Judge Not: Judges Benched for Personal Misconduct (p 1)
  2. From the Editor (p 8)
  3. FedCURE Entitled to Fee Waiver for FOIA Request (p 9)
  4. Violence on the Rise in BOP Facilities (p 10)
  5. Judge Sonia Sotomayor Denied My Appeal and I Spent 16 Years in Prison for a Crime I Didn’t Commit (p 12)
  6. Oregon Prosecutes Teen to Avoid Liability; Bizarre 2 1/2 Year Legal Battle Ends (p 14)
  7. A Bridge Between The Ivy League And The Jailhouse: An Interview with Brett Dignam, Clinical Professor of Law and Supervising Attorney at Yale Law School (p 16)
  8. Florida’s Private Prisons Still Lack Meaningful Oversight (p 18)
  9. Motions to Oust California Prison System’s Federal Healthcare Receiver Denied (p 20)
  10. 15 Guards Charged with Assaulting Maryland Prisoners (p 20)
  11. Oregon’s Criminal Justice Economic Recovery Plan: Keep Digging! (p 22)
  12. Indiana Lifelong Violent Offender Registration Preliminary Injunction Upheld in Part (p 24)
  13. $1,423,127 in Attorney Fees Awarded in Taser Suit; Damages Reduced (p 25)
  14. Report Recommends Lawmakers Reinstate College Programs in Prison (p 26)
  15. Report Concludes Hispanics Receiving a Greater Share of Federal Sentences (p 26)
  16. Improper Classification that Resulted in Seattle Jail Beating Settles for $37,500 (p 27)
  17. Jailhouse Lawyers: Prisoners Defending Prisoners v. The U.S.A., by Mumia Abu-Jamal, Published by City Lights Publishers, ISBN 978-0-8728646-9-6; 286 Pages; $16.95 (p 28)
  18. Reopened Abu Ghraib Prison Haunted by its Past (p 28)
  19. $10,000 Settlement for Bunk Bed Railing Hitting Prisoner (p 29)
  20. $2.1 Million Award in California Prisoner’s Choking Death (p 29)
  21. Poaching Boast Lands Oregon Prison Guard in Hot Water; Pulls State Trooper Father Down with Him (p 30)
  22. Utah Evaluates Drug Program Pilot; Recommends Further Evaluation (p 30)
  23. $100,000 Settlement in Illegal Imprisonment Caused by Massachusetts’ Failure to Implement Court Order (p 31)
  24. Vermont Supreme Court: “Nutraloaf” Diet Is Punishment that Requires Hearing (p 32)
  25. Ohio Parole Authority Ordered to Grant Hearings that Provide Meaningful Parole Consideration (p 32)
  26. $250,000 Award in Mississippi False Imprisonment Suit (p 33)
  27. Vendor Crushed by Seattle Jail Door Receives $43,525 for Injuries (p 33)
  28. Study Shows Few Texas Prisoners Transition Well to Community HIV Treatment (p 34)
  29. Highest Criminal Appeals Judge in Texas Faces Removal Hearing (p 34)
  30. Audit Report Finds Michigan Prisoner Transportation System Wasteful (p 35)
  31. Seventh Circuit Reverses Dismissal of Suit Alleging Excessive Force, Retaliation and Inadequate Medical Care; Settles for $15,000 (p 36)
  32. Seventh Circuit Vacates Dismissal for Failure to Prosecute; $50,000 + Fees Awarded Following Remand (p 36)
  33. Illinois Court of Appeals: Prisoner Has Standing to Sue Ameritech for Fraud (p 37)
  34. AZ Sheriff Joe Arpaio Loses Three Public Records Cases (p 38)
  35. Colorado Florists Decry Prison Retail Flower Business (p 39)
  36. Missouri Public Defenders Not Immune from Client Suits (p 40)
  37. OK Prisoners Released from Custody Despite Deportation Detainers (p 40)
  38. Allowing Others to Attack Prisoner, Making Credible Death Threats, Labeling Prisoner a Snitch Violate Eighth Amendment (p 41)
  39. Nebraska: Tape-Recorded, Restricted-Calling Prison Telephone System Passes Constitutional Muster (p 42)
  40. Absent Claim for Emotional Damages, Prisoner’s Psychotherapist-Patient Privilege Remains Intact (p 42)
  41. Prolonged Bench Restraint and Excessive Pepper Spraying Requires Trial (p 43)
  42. Fifth Circuit Reinstates Prisoner’s Environmental Tobacco Smoke Suit (p 44)
  43. Federal Prison Guards’ Convictions Affirmed in Sex Scandal (p 44)
  44. $150,000 Settlement In Missouri Jail Suicide Suit (p 45)
  45. First Circuit Upholds BOP’s Discretion to Limit Halfway House Placement (p 45)
  46. Ninth Circuit: Orange County Jail Violated Ad Seg Prisoners’ ADA, Religious and Exercise Rights (p 46)
  47. Fourth Circuit Upholds Prisoner Exclusion in Virginia FOIA (p 46)
  48. Eleventh Circuit Reverses Dismissal of Challenge to Florida DOC Ban on Pen Pal Requests (p 47)
  49. Eleventh Circuit Unpublished Decision on PLRA Administrative Exhaustion Requirements Trumped by Published Ruling (p 48)
  50. Ohio Supreme Court Rules Sex Offender Residency Restrictions Not Retroactive (p 48)
  51. Denial of Bedding, Clothes to Florida Prisoner States Claim (p 49)
  52. News in Brief: (p 50)
  53. Alabama Raises Rates Charged for Prisoner Labor (p 52)
  54. District Court Erred in Sua Sponte Dismissal of Prisoner’s Challenge to Conditions of Confinement (p 55)

Judge Not: Judges Benched for Personal Misconduct

by Gary Hunter & Alex Friedmann

They decide hot-button topics ranging from abortion and racial discrimination to religious freedoms and contested elections. They can put you in prison or vindicate your civil rights. They can even sentence you to death. Who am I talking about? Judges.

Of all the public officials involved in the justice system, including the police, prosecutors, prison guards and parole officers, judges wield the most influence and power. Presumably, then, when we entrust members of the judiciary with such power we expect them to follow the law and conduct themselves in an ethical and professional manner.

Unfortunately that is not always the case, as demonstrated by the following recent examples of judicial misconduct.

Federal Judicial Hijinks

On February 6, 2008, Massachusetts U.S. Bankruptcy Court Judge Robert Somma, 63, was pulled over following a minor car accident and charged with driving while intoxicated. He was wearing high heels, stockings and a cocktail dress at the time, and the arresting officer noted that the judge had to retrieve his driver’s license from his purse.

The following week Somma pleaded no contest to the misdemeanor charge; his license was suspended for a year and he was ordered to pay a $600 fine. He tendered his resignation two days later. However, after more than 200 attorneys signed on to a letter of support submitted to the First Circuit Court of Appeals, Somma sought to rescind his resignation.

“He made a mistake; he took responsibility for it,” said First Circuit Executive Gary H. Wente. Ultimately, though, Somma agreed to step down. “The United States Court of Appeals for the First Circuit and Judge Robert Somma have agreed that he will not resume service on the United States Bankruptcy Court for Massachusetts but is leaving to pursue other endeavors,” the Office of the Circuit Executive wrote in a terse statement issued May 30, 2008.

Somma is now employed at the Boston law firm of Posternak Blankstein & Lund, as senior counsel. While he was not charged with ethical misconduct, apparently his penchant for crossdressing and drunk driving was too much for the dignity of the federal courts.

The resignation of another federal judge, U.S. District Court Judge Edward W. Nottingham, became effective October 29, 2008. Nottingham, who served as the chief judge for the District of Colorado, came under fire when a messy divorce settlement with his third wife revealed salacious details about his personal life, and his problems steamrolled from there.

The first of four complaints against Nottingham was related to his admission in his divorce case that he had spent $3,000 during a single night at a strip club. Complaint number two was lodged by a disabled attorney who blocked Nottingham’s car with her wheelchair after he parked in a handicap parking space. The attorney said Nottingham identified himself as a federal judge and threatened her. He was fined $100 for the incident.

A third complaint accused Nottingham of soliciting prostitutes using his court-issued cell phone and visiting an escort service’s website while at work. He was also accused of lying to investigators about the accusations.

On October 10, 2008, a fourth complaint was filed after a prostitute testified that Nottingham was one of her clients and had asked her to lie to federal authorities investigating their relationship.

Although Nottingham referred to the issues raised in the complaints as “private and personal matters involving human frailties and foibles,” he announced his resignation on October 21, 2008. The misconduct charges were then dropped by the Judicial Council of the Tenth Circuit as being moot. The Council noted that the former chief judge “may have made false statements” during the disciplinary investigation, but he was not criminally charged. See: In re: Nottingham, Judicial Misconduct Complaint No. 2007-10-372-36, et al. (Judicial Council of the Tenth Circuit).

Nottingham said he was “embarrassed and ashamed for any loss of confidence caused by [his] actions and attendant publicity,” and apologized to “the public and the judiciary.”
The former chief judge, who was dubbed “Judge Naughty” by the local press, is now in private practice in Denver. He still faces an ethics complaint filed with the Colorado Attorney Regulation Counsel. Judge Nottingham had been appointed by president George H.W. Bush and was generally fair in lawsuits filed by prisoners.

As more details of his sexual proclivities circulated in the local media, judge Nottingham held a bench trial on one of the last cases before he resigned which was a lawsuit brought by federal prisoner Mark Jordan challenging the constitutionality of the Ensign Amendment, the statute which bars federal prisoners from receiving sexually explicit materials in the mail. He quickly upheld the statute. Apparently it is immoral for prisoners to look at pictures and cartoons depicting nudity while judges consort with prostitutes with impunity until their spouses file for divorce.

U.S. District Court Judge Samuel B. Kent, 59, of the Southern District of Texas, also brought unwanted scrutiny to the federal bench. On Sept. 28, 2007, Kent received a three-page reprimand and 120-day suspension with pay from the Fifth Circuit Judicial Council, stemming from a complaint of sexual harassment. See: In re: Complaint of Judicial Misconduct against United States District Judge Samuel B. Kent, Docket No. 07-05-351-0086 (Judicial Council of the Fifth Circuit).

Kent’s case manager, Cathy McBroom, accused the judge of touching her in a lewd manner without her permission on several occasions. “The abuse began after Judge Kent returned to work intoxicated. He attacked me in a small room not 10 feet from the command center where the court security officers worked,” McBroom stated. “He tried to undress me and force himself upon me, while I begged him to stop. He told me he didn’t care if the officers could hear him because he knew everyone was afraid of him.”

McBroom’s request for harsher sanctions against Judge Kent was denied by the Fifth Circuit in December 2007. Dissatisfied with the light punishment imposed by the appellate court, McBroom hired Houston attorney Rusty Hardin.

On August 28, 2008, Kent was indicted on one count each of abusive sexual contact, attempted aggravated sexual abuse and obstruction of justice. Kent’s secretary, Donna Wilkerson, claimed that the judge had sexually abused her, too, and Kent was indicted on three additional counts on January 6, 2009. He was the first federal judge to ever be charged with sex-related offenses.

Kent later pleaded guilty to lying to federal investigators. Although the sex charges were dropped, he admitted that he had engaged in nonconsensual sexual conduct. Kent received a 33-month prison sentence on May 11, 2009; he was also fined $1,000 and ordered to pay $6,550 in restitution to his victims. See: United States v. Kent, U.S.D.C. (S.D. Tex.), Case No. 4:08-cr-0596-RV. He was given the opportunity to further reduce that sentence by one year if he sought treatment for alcoholism while in prison.

Kent then announced ...

From the Editor

The cover story and a number of other articles in this issue of PLN focus on misconduct by judges. As this article goes to press the anointment hearings of Judge Sonia Sotomayor to the US Supreme Court are taking place in the US senate. Sadly, it appears she is a much more pro government judge that justice David Souter whom she is replacing and will most likely further shift the court in its anti criminal defendant and prisoner direction. For prisoners it is difficult to overstate the importance of the judiciary since, by definition, it takes a judge’s sentencing to send someone to prison and a judge’s order to keep someone in jail more than 48 hours. To the extent there are 2.5 million people imprisoned on any given day in the US, the vast majority of those detained are detained based on a judge's order.

Unlike some third world countries where the judiciary is corrupt the United States has an even more serious problem: a biased, results oriented judiciary. The corrupt judge can be bought off by the highest bidder and that has a certain egalitarian notion to it: come up with the money and ...

FedCURE Entitled to Fee Waiver for FOIA Request

On March 19, 2009, U.S. District Judge Reggie Walton granted a motion for summary judgment filed by FedCURE, a non-profit organization that advocates for federal prisoners and their families, in a suit filed under the Freedom of Information Act (FOIA) against the Bureau of Prisons (BOP).

In 2005, FedCURE sent a FOIA request to the BOP for various records related to the BOP’s ion spectrometry program. For years, federal officials used ion spectrometry equipment to detect drugs on visitors and BOP prisoners. The devices have since been discontinued following concerns about their accuracy [See: PLN, Feb. 2009, p.11].

BOP demanded that FedCURE pay $3,976 in search and copying fees before processing the FOIA request. In response, FedCURE asked for a fee waiver. FedCURE argued that it was a “noncommercial scientific institution” and a “representative of the news media” by virtue of the newsletter it published. Additionally, FedCURE asserted that disclosure of the requested records was in the public interest and that it intended to publish the ion spectrometer information in its newsletter and on its website. The BOP denied the request for a fee waiver, prompting FedCURE to file suit.

On cross-motions for summary judgment, Judge ...

Violence on the Rise in BOP Facilities

Killings, assaults and other acts of violence are becoming more widespread in the federal Bureau of Prisons (BOP), as the prison population increases and staff-to-prisoner ratios decline. Fifteen prisoner-on-prisoner BOP homicides occurred in 2008 compared with 12 in 2007. Serious assaults on staff increased to 82 in 2008 from 72 in 2007, following a decline in previous years.

The BOP operates 115 facilities that house over 205,000 prisoners. Most of the violence is relegated to U.S. Penitentiaries (USPs), which typically hold high-security offenders serving lengthy sentences.

On April 20, 2008, for example, a massive 30-minute riot at the USP in Florence, Colorado broke out in the recreation yard. The incident began after white supremacist prisoners celebrating Adolf Hitler’s birthday began yelling racial epithets at black prisoners. The white supremacists were drinking hooch, a form of homemade wine, and were armed with rocks and improvised weapons. Approximately 200 prisoners were involved in the melee.

To quell the riot, guards fired more than 200 M-16 rounds, 300 pepper balls and almost a dozen tear gas canisters, plus sting grenades. Two prisoners, Brian Scott Kubik and Phillip Lee Hooker, were shot to death by tower guards. Although the BOP initially ...

Judge Sonia Sotomayor Denied My Appeal and I Spent 16 Years in Prison for a Crime I Didn’t Commit

My name is Jeffrey Deskovic. At age 17, I was wrongfully convicted of murder and rape, a conviction that was based upon a coerced false confession, the fabrication of evidence, prosecutorial misconduct, and fraud by a medical examiner. I was cleared 16 years later – almost three years ago – when DNA evidence proved my innocence, while also identifying the real perpetrator, who subsequently confessed to the crime. Since my release, I have made it my life’s mission to battle against wrongful convictions and fight for legislation that would minimize the chances of what happened to me happening to someone else. It is this fight that compels me to speak out about Supreme Court nominee Sonia Sotomayor.

Before I was exonerated, I sought out every legal avenue I could to win my freedom. I defended my innocence before the New York Appellate Division, raising such proof as the fact that the physical evidence found did not match me and arguing that the police violated my rights by coercing a false confession from me at the age of 16. The court ruled against me 5 to 0, concluding that there was nothing wrong with my interrogation and stating that there was “overwhelming ...

Oregon Prosecutes Teen to Avoid Liability; Bizarre 2 1/2 Year Legal Battle Ends

Oregon Prosecutes Teen to Avoid Liability; Bizarre 2 ½ Year Legal Battle Ends

by Mark Wilson

Seventeen year old David Simmons and his fourteen year old girlfriend began a sexual relationship which continued after they turned 18 and 15, respectively. The relationship ended, however, on September 27, 2006 when the girl’s angry parents had Simmons arrested on suspicion of rape and sodomy.

On October 5, 2006, Jefferson County, Oregon deputy district attorney Steve Leriche took the case before a grand jury, seeking to charge Simmons with six felony sex crimes, carrying substantial prison time. Finding insufficient evidence of a criminal offense, the grand jury refused to indict Simmons. Grand Jury Foreman James Green checked “Not a True Bill” on the indictment and returned it to Leriche.

Leriche, presiding Judge Daniel Ahern and Simmons’s defense attorney, Jennifer Kimble, all failed to notice that the grand jury refused to indict Simmons. Such a failure “is just extraordinary,” said University of Oregon law school dean Margaret Paris.

Five days after the grand jury’s decision, on October 10, 2006, Simmons pleaded guilty to two charges – third degree rape and third degree sodomy. Nine days later, on October 29, 2006, Simmons was ...

A Bridge Between The Ivy League And The Jailhouse: An Interview with Brett Dignam, Clinical Professor of Law and Supervising Attorney at Yale Law School

Thirty years ago, Brett Dignam would not have believed she would spend her career as an attorney advocating for prisoners’ rights. Dignam’s passion at the time was performance, and she was deeply interested in teaching children’s theater.

“Law school was something I did so that I would have enough credibility to start my own theater,” she explains.

That changed, however, in the early-1980s when she needed a part-time summer job and was hired by attorney Dennis Curtis, who was then heading up a law clinic at the University of Southern California. Dignam’s task was to manage the cases that students had started in the spring. Her first client was serving a federal sentence, having already served state time. “During the first visit, I read his handwritten petition for a writ of habeas corpus and was very impressed,” she recalls. “He had become a published playwright and poet while inside. We were almost exactly the same age but we had grown up in different neighborhoods.”

Dignam’s career in prisoners’ rights advocacy was sealed when she asked Curtis -- who had left a small Washington, D.C., boutique law firm after arguing in the Supreme Court a few years ...

Florida’s Private Prisons Still Lack Meaningful Oversight

by David M. Reutter

Florida’s Office of Program Policy Analysis and Government Accountability (OPPAGA) has issued a report that finds that oversight of the state’s private prisons has strengthened under the Department of Management Services (DMS) but significant weakness still abounds.

The Florida Legislature authorized private prisons in 1989. When the Florida Department of Corrections (FDOC) had not contracted for any privatization by 1993, the Legislature established the Correctional Privatization Commission to realize the savings that are ballyhooed by privatization advocates. As PLN previously reported, the Commission’s first executive director was fined and fired for ethics violations and the second imprisoned for embezzlement of state funds.

That prompted the legislature to abolish the Commission and place responsibility for private prison contracting and oversight under the charge of DMS. Of the 19 states to have private prisons, only Florida places administrative responsibility for private prisons outside of its prison agency or a prison commission overseeing both public and private prison systems.

As of October 1, 2008, Florida’s six private prisons housed 7,725 of the state’s 99,048 prisoners at an approximate annual cost of $133 million. By Florida law, private prisons must save 7% of ...

Motions to Oust California Prison System’s Federal Healthcare Receiver Denied

by John E. Dannenberg

On March 24, 2009, motions by the California Department of Corrections and Rehabilitation (CDCR) to terminate the Receivership now operating the state’s prison healthcare system under a longstanding federal lawsuit were denied by the U.S. District Court.

Judge Thelton E. Henderson found that the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626, did not preclude him from appointing a Receiver – as was argued by the CDCR two years after they agreed to such an appointment. Additionally, the court rejected CDCR’s motion to terminate the Receiver’s prison medical facility construction plan, which the CDCR alleged was too intrusive into state rights.

The federal Receivership was ordered in February 2006 after Judge Henderson found that inadequate healthcare at CDCR facilities was violating the constitutional rights of prisoners (literally killing them at a rate of over 60 per year), and that no alternative narrowly-drawn remedy would cure the violations.

While some of the Receiver’s CDCR medical facility construction projects were in fact begun (most notably the new hospital at San Quentin State Prison and temporary modular clinics at three other prisons), no work was commenced at the remaining 29 CDCR facilities covered ...

15 Guards Charged with Assaulting Maryland Prisoners

by David M. Reutter

The Maryland Attorney General’s Office has charged 15 former prison guards with assaulting prisoners. The charges come nearly a year after the guards were fired from the North Branch Correctional Institution and Roxbury Correctional Institution; another eight guards were not charged due to lack of evidence. [See: PLN, July 2008, p.38].

Nine former Roxbury guards were charged with second-degree assault: Robert D. Harvey, 62; Reginald Martin, 38; Scott Boozel, 28; Michael Morgan, 39; Tim Mellott, 28; Justin Norris, 24; Keith Morris, 26; Tyson Hinkle, 33; and Lucas A. Kelly, 29.

In addition to assault, the six North Branch guards were charged with conspiracy to assault. They include Jason Weaver, 35; Kenneth Platter, 26; Richard Robinson, 36; Tony Nery, 42; Sherman Jones, 39; and Ryan Dolan, 28.

If found guilty, the guards each face up to 10 years and a $2,500 fine. Their union, however, is confident of acquittals. “We feel that at the conclusion of this that the officers are going to walk away from this cleared of the charges,” said Patrick Moran, director of AFSCME Maryland. “We’re going to work through it and at the end people will be vindicated.”

The ...

Oregon’s Criminal Justice Economic Recovery Plan: Keep Digging!

Like every other state, Oregon has been hit hard by the worst economic crisis in recent American history. Yet standing in an ever-deepening fiscal crater, prosecutors and victims’ rights groups keep handing out shovels and Oregonians stubbornly refuse to stop digging. This may not be what President Obama envisioned when he referred to “shovel ready” public works projects.

On February 20, 2009, Oregon economist Tom Potiowsky reported that the state faced an $855 million budget shortfall for the final four months of the current biennium (two-year period) ending June 30, 2009, up $55 million from estimates just three weeks earlier.
When Oregon’s jobless numbers were released on February 27, 2009, the state’s unemployment rate had hit 10 percent – the fifth worst in the nation.

By all accounts, the 2009-2011 biennium will be even worse. “We’re falling basically into a pit,” said Potiowsky. “The perfect storm is here and Oregon is feeling the recession stronger than many other states.”

In December 2008, Oregon Governor Theodore Kulongoski released his proposed 2009-2011 budget and warned of a “budget hole” of “about $1.2 billion” for that biennium, but when Potiowsky issued his report just two months later the hole had ...

Indiana Lifelong Violent Offender Registration Preliminary Injunction Upheld in Part

On December 29, 2008, an Indiana Court of Appeals upheld a superior court’s preliminary injunction against lifelong registration for violent offenders.

A July 1, 2007 Indiana statute added people who had been convicted of certain violent crimes to the state’s registry requirement, which previously was solely reserved for sex offenders. Ind. Code §§ 11-8-8-7 to 17 required persons convicted of murder, manslaughter, attempted murder and attempted manslaughter to register for ten years after their release from prison or placement on probation, parole or in a community transition program. Violent offenders who committed specified crimes were required to register for the rest of their lives.

Annual, in-person registration with local law enforcement was mandated for the locations where such persons lived, worked or attended school. The required registration information included full name, alias, date of birth, gender, race, height, weight, hair color, eye color, distinguishing features, social security number, driver’s license number, vehicle description, license plate number, address, description of offense and a recent photograph. Much of this information was published on the Internet (www.insor.org), and failure to register or make timely notification of a change of address was a felony.

Indiana residents James Gibson, Mark Lamar ...

$1,423,127 in Attorney Fees Awarded in Taser Suit; Damages Reduced

A California federal district court has awarded $1,423,127 in attorney fees in the first lawsuit to result in a verdict against TASER International for failing to warn purchasers its electronic control devices pose a risk of acidosis, to a degree that posed a risk of cardiac arrest, when ...

Report Recommends Lawmakers Reinstate College Programs in Prison

by David M. Reutter

Citing the benefits of college prison programs, a report by the Correctional Association of New York recommended several policy changes to increase and recognize participation in degree-awarding programs. The report says the principal benefits of college programs in prison are: reduced recidivism because of the enhanced problem-solving skills, greater opportunities for steady employment provided to prisoners, safer and more manageable prison conditions and a cost-effective option for improving public safety.

When President Bill Clinton signed the Violent Crime Control and Law Enforcement Act, also known as the Clinton Crime Bill, into law in September 1994, the use of Pell Grants by prisoners to fund secondary education was eliminated. Upon taking office as New York’s governor in 1995, George Pataki banned prisoners from receiving grants through the Tuition Assistance Program. Nationwide, nearly all 350 post-secondary correctional education (PSCE) programs closed. Only 4 of the 70 in New York remained.

The report under review here found this was a grave mistake. It examined several studies that found PSCEs reduce recidivism. In New York, those who earned a degree while in prison recidivated only 26.4% of the time, compared to 44.6% for those who did not ...

Report Concludes Hispanics Receiving a Greater Share of Federal Sentences

by David M. Reutter

Hispanics are comprising a higher percentage of federal sentences, concludes a February 2009 report issued by the Pew Hispanic Center. The rise is attributed to a heightened focus on immigration enforcement. The findings of the report are based on data collected by the United States Sentencing Commission (USSC).

In 2007, Hispanics accounted for 40% of all sentenced federal offenders, which is triple their share of the U.S. adult population. Trying to combat an increase from an estimated 3.9 million undocumented immigrants in the U.S. in 1992 to 11.9 million in 2008, federal officials have cracked down on undocumented immigrants.

Of the Hispanics sentenced in federal court in 2007, 72% of them were not U.S. citizens, an increase from 61% in 1991. The number of Hispanics sentenced in federal court between 1991 and 2001 nearly quadrupled, jumping from 7,924 to 29,281. This comprised 54% of the increase in sentenced federal offenders over that period.

Over that time period, the dynamics of the criminal nature that Hispanics were sentenced for changed. In 1991, 60% of Hispanics were sentenced for drug crimes and 20% for immigration crimes. By 2007, 48% of Hispanics ...

Improper Classification that Resulted in Seattle Jail Beating Settles for $37,500

Washington State’s King County Jail settled a claim that a prisoner was beaten severely by another prisoner due to improper classification for $37,500.

While at the Jail on August 2, 2003, Ian Kennedy Lennox was beaten by Carlos Martell Balcinde. The beating occurred without any provocation by Lennox ...

Jailhouse Lawyers: Prisoners Defending Prisoners v. The U.S.A., by Mumia Abu-Jamal, Published by City Lights Publishers, ISBN 978-0-8728646-9-6; 286 Pages; $16.95

Prisoners helping prisoners with legal issues would not seem strange to most people. But the idea of prisoners protecting the U.S. constitution is a notion not many can grasp unless they take the time to read Jailhouse Lawyers.

In Jailhouse Lawyers, author and PLN Columnist Mumia Abu Jamal raises the bar for the serious scholar who has never considered the concept of justice being defended “from the bottom.” He educates the reader of the extent to which the constitutional rights of “free” society are protected by the often desperate efforts of its incarcerated citizens. He introduces us to prisoners whose names are legends in legal circles as well as to unknown prisoners who have made major differences in the way the law works for every citizen whether free or incarcerated. Mumia also reminds us that this bottom-up protection often comes with a very high price to those who fight for it. Such is the dynamic that drives Jailhouse Lawyers.

Consider Clarence Earl Gideon, the legal legend with an eighth grade education. Almost everyone knows that if they are arrested they have the right to an attorney. Few realize that they enjoy that right because of a hand-written petition filed ...

Reopened Abu Ghraib Prison Haunted by its Past

by Matt Clarke

On February 21, 2009, Iraqi officials reopened the most infamous icon of human rights abuses under two different governments – the Abu Ghraib prison. Located near western Baghdad on 113 hectares of land, the immense prison complex now boasts a barber shop, recreation yard, playground for children visiting prisoners, modern health and dental care facilities, and a mosque. Greenhouses are being constructed.

The facility has been spruced up, repainted and renamed Baghdad Central Prison. The hooks and wires – reminders of its tortured and torturous past – have been removed from the walls, and the resulting holes have been patched over. Stains have been cleansed from the blood-soaked concrete. The prison smells of fresh paint, sanitizer and cleaning agents. Signs posted throughout the facility read “Respecting the dignity of the detainees is one of the noble goals of the Iraqi correctional services.”

When U.S. forces invaded in 2003, Iraqis told them of torture and wholesale murder by Saddam’s minions at Abu Ghraib, which had been built by British contractors in the 1960s. Instead of demolishing this symbol of oppression, the U.S. military instead decided to use it for their own purposes. This served to encourage the Iraqi ...

$10,000 Settlement for Bunk Bed Railing Hitting Prisoner

Washington State’s King County Jail has paid $10,000 to settle a claim for physical injury caused by defective bunk bedding. The bed was not defective until a guard kicked it.

During count at the Jail on October 4, 2006, at around 3:00 PM, prisoner Tanner C. Brown ...

$2.1 Million Award in California Prisoner’s Choking Death

A California federal jury has awarded the estate of a prisoner who was choked to death by prison guards $2.1 million. Prisoner Johnny Young, who was mentally ill, died on December 30, 2004, while being restrained by guards at the Richard J. Donovan State Prison.

While walking to breakfast ...

Poaching Boast Lands Oregon Prison Guard in Hot Water; Pulls State Trooper Father Down with Him

Pendleton, Oregon boys pride themselves on their hunting abilities. Deep in the heart of Oregon’s high desert, hunting is an age-old rite of passage and a way of life. Guards at Pendleton’s Eastern Oregon Correctional Institution (EOCI) brag constantly about their hunting prowess, though they’re probably doing so much more quietly these days.

Over the course of four conversations in September 2008, 22-year-old EOCI prison guard Timothy Charles Gallaher boasted to fellow guard Josh Mitchell about illegally poaching a branch-antlered 6-by-7 point bull elk on September 21, 2008 near his family’s cabin. He stated that his father, Timothy Ernie Gallaher, a 28-year veteran with the Fish and Wildlife Division of the Oregon State Police (OSP), approved of the poach and offered to help retrieve and remove the downed elk.

Mitchell reported the conversations to his supervisor because he thought poaching was morally wrong and feared he could be fired for not reporting it. The supervisor notified OSP, which initiated an investigation.

OSP officials kept the Gallahers under surveillance and watched them meet at the family cabin. Afterward, Timothy altered his original story, telling Mitchell that he and his father had found the dead elk, without its ...

Utah Evaluates Drug Program Pilot; Recommends Further Evaluation

by David M. Reutter

A report by Utah’s legislative Auditor General into the performance of the Drug Offender Reform Act (DORA) says that more time is needed to evaluate the program, and it makes several recommendations to assist in future evaluations.

DORA began as a three-year pilot program to identify and treat offenders who would benefit from substance abuse treatment rather than imprisonment. Utah’s 2005 Special Session Legislature appropriated $1.4 million to implement it in the Third Judicial District. In 2006, the Legislature expanded it to include all felony offenders, instead of limiting it only to drug offenders. The legislature appropriated $8 million in 2007 to make the program statewide.

Three state agencies – Corrections, Human Services and the Commission on Criminal and Juvenile Justice – collaborate to make DORA work. It has several goals, which are broken down into process and outcome goals. In the process category, there are three goals.

The first is smarter sentencing by providing the judge with specific information about an offender’s substance abuse problem and treatment needs prior to sentencing. Next, smarter treatment slots in the community and prisons, by conducting an assessment of the offender’s substance abuse and determining the ...

$100,000 Settlement in Illegal Imprisonment Caused by Massachusetts’ Failure to Implement Court Order

by David M. Reutter

A former Massachusetts prisoner has received $100,000 to settle a claim of wrongful and illegal confinement. PLN previously reported on this incident, which stems from the failure of the Massachusetts Department of Correction (MDOC) and Parole Board to implement a court ruling that required time ...

Vermont Supreme Court: “Nutraloaf” Diet Is Punishment that Requires Hearing

On March 13, 2009, the Vermont Supreme Court held that placing a prisoner on a “Nutraloaf” and water diet constitutes punishment that requires a hearing before the punitive diet is imposed.

William Borden, Richard Pahl and Brian Pelletier, Vermont state prisoners, filed a declaratory judgment action in superior court seeking to have the imposition of a Nutraloaf and water diet by prison officials declared punishment. Under 28 V.S.A. §§ 851-853, the Vermont Department of Corrections (DOC) is required to conduct a fact-finding hearing before imposing punishment on prisoners; the plaintiffs argued that a hearing was necessary prior to implementing a Nutraloaf and water diet. The superior court held that such a diet did not constitute punishment, and the plaintiffs appealed.

The Vermont Supreme Court noted that Nutraloaf is “a compost of whole wheat bread, non-dairy cheese, carrots, canned spinach, raisins, canned Great Northern beans, vegetable oil, tomato paste, powdered milk, and potato flakes, mashed together and baked in a loaf pan.” Called “food loaf” or “meal loaf” in other prison systems, it is “designed to be ‘less appealing than normal food.’”

A Nutraloaf and water diet is imposed on prisoners who abuse food, utensils or bodily waste. Nutraloaf is ...

Ohio Parole Authority Ordered to Grant Hearings that Provide Meaningful Parole Consideration

by David M. Reutter

The Court of Common Pleas in Franklin County, Ohio has entered summary judgment finding the Ohio Adult Parole Authority (APA) denies “meaningful parole consideration when they assign an inmate to a proper guidelines category, but the lowest possible range in the guidelines chart is beyond the inmate’s earliest parole eligibility date.” The Court ordered the APA to re-hear and grant meaningful parole consideration to class members who had not had a parole hearing since June 2005.

This case arises from the decision in Ankrom v. Hageman, 2005 Ohio 1546 (Ohio Ct. App., Mar. 31, 2005) [PLN, Aug. 2006, p.39], which examined the parole eligibility of “old-law” prisoners who received indeterminate sentences prior to the changes associated with Senate Bill 2 that became effective on July 1, 1996. The Ankrom class consisted of “all parole-eligible Ohio prison inmates who pleaded guilty or no contest to lesser or fewer offenses than for which they were indicted.” The Ankrom court found the APA was denying “meaningful consideration” for parole, and that it was effectively disregarding sentences imposed by the trial courts.

The Ankrom decision resulted in the APA sending notices to all prisoners who were determined to ...

$250,000 Award in Mississippi False Imprisonment Suit

Last January, a Mississippi federal jury awarded a former prisoner $250,000 for being falsely incarcerated by the Mississippi Department of Corrections (MDOC). The facts of the case exhibit an unbelievable abuse of power by MDOC officials.

After pleading guilty to burglary of an automobile, Will Terrance Porter was sentenced ...

Vendor Crushed by Seattle Jail Door Receives $43,525 for Injuries

Washington State’s King County Jail in Seattle has paid $43,525 to settle a claim brought by a man delivering frozen food to the Jail.

While making his delivery on November 7, 2002, David Huntington was crushed by a heavy metal door operated remotely and from inside the building ...

Study Shows Few Texas Prisoners Transition Well to Community HIV Treatment

by Matt Clarke

On February 25, 2009, the Journal of the American Medical Association (JAMA) published an article which reported what percentage of Texas prisoners who were receiving Anti-Retroviral Therapy (ART) for HIV while in prison accessed ART drugs after release. The article showed that only half the prisoners applied for ART drugs within 90 days of being released from prison and only one-fifth of them did it in time to avoid treatment interruption.

Texas prisoners who are receiving ART are given a ten-day supply of ART drugs, a copy of their HIV lab report, a list of clinicians treating HIV in their home community, a Texas AIDS Drug Assistance Program (ADAP) application form and an ADAP medication certification form signed by a physician when released from prison. They are told to contact ADAP to receive at least another 30 days of ART drugs for free. To apply for drugs through ADAP requires filling out a 4-page ADAP application. The application and a 1-page form filled out by a clinician detailing current laboratory values must be submitted to the central ADAP office. Then the applicant contacts an ADAP caseworker via a toll-free phone number. The caseworker assigns the applicant to ...

Highest Criminal Appeals Judge in Texas Faces Removal Hearing

by Matt Clarke

On February 19, 2009, the Texas Commission on Judicial Conduct charged Sharon “Killer” Keller, Chief Justice of the Texas Court of Criminal Appeals, the highest court in Texas over criminal matters, with five disciplinary charges – including bringing discredit on the judiciary and violating her duty as a judge.

The charges stemmed from Keller promptly closing the court clerk’s office on September 25, 2007, so a prisoner facing execution could not file a last-minute after-hours appeal. As a result, the death row prisoner, Michael Wayne Richard, was executed that evening.

Richard’s attorneys were experiencing computer difficulties and asked the court clerk’s office to stay open 20 minutes late to facilitate the filing of a last-minute appeal based on the U.S. Supreme Court’s grant of certiorari in two other death penalty cases that same day. Several judges stayed late at the courthouse, anticipating such a filing. Without telling them or the judge in charge of the case, Keller ordered the clerk’s office not to remain open to receive the appeal. [See: PLN, July 2008, p.22].

Over 300 attorneys filed complaints against Keller due to her decision to prevent Richard’s appeal from ...

Audit Report Finds Michigan Prisoner Transportation System Wasteful

by David M. Reutter

Michigan’s Auditor General has issued a report that criticizes the Michigan Department of Corrections (MDOC) prison transport system as inefficient and wasteful of taxpayer money. The report notes that MDOC has failed to implement recommendations made in a 1996 report.

To transport its prisoners, the MDOC has three regional hubs that employ 84 full-time Corrections Transportation Officers (CTOs). In addition to those hubs, 19 prisons employed 135 CTOs. There are four main reasons for prisoner transports: interfacility transfers, off-site medical appointments, court appointments and transportation for parolees and probationers.

While the Auditor found MDOC’s efforts to manage prisoner transportation were moderately effective, it found five specific areas that represent an opportunity for improvement or a significant deficiency in management’s ability to operate the program in an effective manner.

In fiscal year 2006-07, MDOC recorded $23.6 million in transportation costs, which included salaries for CTOs, 4,601,300 vehicle miles and 102,000 overtime hours. Yet, MDOC had not developed a standardized method to identify, account for, document and report prisoner transportation activity.

Because MDOC failed to consistently or accurately monitor the costs or miles traveled to transport prisoners, its information cannot be ...

Seventh Circuit Reverses Dismissal of Suit Alleging Excessive Force, Retaliation and Inadequate Medical Care; Settles for $15,000

The U.S. Court of Appeals for the Seventh Circuit reversed the dismissal of a lawsuit against Cook County Jail (CCJ) officials in Chicago, Illinois that alleged excessive force, retaliation and inadequate medical treatment.

Fredrick Lee Walker, a pre-trial detainee at CCJ for some eight years, sued CCJ and numerous ...

Seventh Circuit Vacates Dismissal for Failure to Prosecute; $50,000 + Fees Awarded Following Remand

The Seventh Circuit Court of Appeals has reversed a district court’s dismissal of a prisoner’s suit for failure to prosecute. The appellate court found the severe sanction of dismissal was not justified.

Illinois prisoner Amilcar Gabriel sustained second- and third-degree burns while working in the kitchen at the ...

Illinois Court of Appeals: Prisoner Has Standing to Sue Ameritech for Fraud

On July 1, 2008, an Illinois Court of Appeals held that a prisoner had standing to bring a claim against Ameritech for consumer fraud. Johnnie Flournoy, an Illinois state prisoner at the Joliet Correctional Center, filed suit against Ameritech in state court alleging the company had “deliberately terminated his collect calls prematurely,” forcing him to call the same party again.

As a consequence, his family members were charged multiple surcharges and fees for accepting his collect calls. Furthermore, because Flournoy sent his mother money to pay for the calls he made, he suffered damages personally. The trial court dismissed the complaint with prejudice.

The Court of Appeals reversed the dismissal, finding that Flournoy had stated a cause of action under the Illinois Consumer Fraud Act, 815 ILCS 505/1, et seq. In doing so, it “settled a question of fact – did Flournoy sufficiently allege that he suffered actual damages as a result of Ameritech’s alleged deceptive practices.” See: Flournoy v. Ameritech, 351 Ill.App.3d 583 (Ill.App.Ct. 3d Dist. 2004), appeal denied. [PLN, Dec. 2004, p.31].

Upon remand, the trial court granted Ameritech’s motion to dismiss for lack of standing to pursue a consumer fraud ...

AZ Sheriff Joe Arpaio Loses Three Public Records Cases

by Matt Clarke

The Maricopa County Sheriff’s Office (MCSO) and Sheriff Joe Arpaio have lost three public records cases in the Arizona Court of Appeals, including one where they were ordered to pay over $25,000 in attorney fees.

The first case arose when MCSO Lt. Paul Chagolla removed the West Valley View (WVV) from the list of media agencies that received routine MCSO e-mail press releases. Chagolla explained why he did so: “We like to see that our work is fruitful and we’ve sent [WVV] multiple story ideas, multiple releases and quite frankly don’t see them covered.”
When WVV asked him to reconsider his decision, Chagolla said, “I’m not going to put you on the list because it is my prerogative to do so.”

WVV discovered it had been removed from the e-mail list when it did not receive an MCSO press release that went out in late 2005 concerning the discovery of two murder victims at a construction site in a town covered by the suburban Phoenix newspaper.
WVV’s response to Chagolla’s rebuff was to file a public records request for all future press releases under Arizona’s public records law, A ...

Colorado Florists Decry Prison Retail Flower Business

by David M. Reutter

Florists in Colorado are crying out against a prison program that is competing against them, undercutting their prices due to the help of prisoner slave labor. What started as a prison program to keep prisoners busy has now turned into a business that florists in Canon City cannot match with price.

“I absolutely believe in competition,” said Katie Martin, owner of Touch of Love Florist. Despite that, she believes that the greenhouse program at the local prison is taking away customers with prices that she and other local florists cannot compete against. “Therefore putting a crunch on those of us that are trying to compete and have to stay with a pretty stable price so we can make a profit in our business.”

The greenhouse program started at the local prisons, which is the largest employer in the Canon City area. Prison officials see it as a management tool. “We’re trying to give [prisoners] real values, teach them to get up in the morning, go to work, work eight hours,” said Colorado Corrections Industries Director Steve Smith. He says the industries are “self-supporting.” A taxpayer savings of $5,000 per prisoner. Smith provides no proof ...

Missouri Public Defenders Not Immune from Client Suits

In a case of first impression, the Missouri Court of Appeals held that state public defenders are not entitled to official immunity for acts committed during their representation of indigent criminal defendants.

Missouri public defender Arthur Allen represented Bernardo Costa, an indigent defendant, “in connection with a motion for post-conviction relief.” Costa instructed Allen to secure various witnesses to testify at a post-conviction evidentiary hearing. Allen assured Costa that he would call the witnesses, but ultimately failed to do so. The failure was fatal to Costa’s post-conviction claim.

Costa then filed an action for damages against Allen, asserting a claim “for breach of fiduciary duties (constructive fraud).” Allen moved to dismiss, arguing that he was entitled to official immunity and that Costa failed to state a cognizable damages claim because his action was premature. The trial court granted Allen’s motion and dismissed the action with prejudice.

Observing that whether public defenders enjoy official immunity was a question of first impression, the Missouri Court of Appeals examined the decisions of several other states.
The appellate court noted that “while most other jurisdictions find that public defenders are not protected by official immunity, the Supreme Court of Minnesota has extended ...

OK Prisoners Released from Custody Despite Deportation Detainers

The Oklahoma Court of Criminal Appeals ordered two illegal aliens released from custody even though detainers for deportation had been filed with the county where they were being held, because the trial judge didn’t have authority to order them detained and federal officials hadn’t acted on the detainers within the allotted time period.

Luis Ochoa and Gregorio Robles, both Oklahoma state prisoners, were convicted of felonies. The trial judge gave them suspended sentences pursuant to plea agreements; he then questioned them about the legality of their presence in the United States. After discovering they were in the country illegally, he ordered them held and federal officials notified for deportation purposes, in accordance with his reading of OK House Bill 1804 (2007).

The sheriff notified the Bureau of Immigration and Customs Enforcement (ICE), which filed detainers, but ICE didn’t take custody of Ochoa and Robles within 48 hours. Attorney Joan Lopez then filed habeas petitions demanding their release.

The Court of Criminal Appeals first found that the trial judge was without authority to question Ochoa and Robles about the legality of their presence in the U.S. after he had already sentenced them; thus, he didn’t have ...

Allowing Others to Attack Prisoner, Making Credible Death Threats, Labeling Prisoner a Snitch Violate Eighth Amendment

The U.S. Court of Appeals for the Eighth Circuit affirmed in part a district court’s denial of qualified immunity to four guards accused of violating a prisoner’s Eighth Amendment rights.

William Irving, a Missouri prisoner, filed a 42 U.S.C. § 1983 action against Thomas Brigance, Ronetta Hyer, Warren Cressey and Leonard Neff, guards at the Jefferson County Correctional Center, for subjecting him to retaliation in response to a previous lawsuit he had filed against them.

Irving alleged that Brigance, Hyer, Cressey and Neff violated his right to be free from cruel and unusual punishment when they allowed another prisoner to attack him, made death threats against him, and falsely labeled him a snitch.

For example, Irving claimed that on November 4, 2004, Ephriam Prewitt, another prisoner, asked Hyer and Neff to “pop” the cell doors so he could assault Irving. In response to that request Hyer and Neff opened the doors and Prewitt attacked Irving, striking him in the face and causing injury to his jaw and nose. Irving was unable to breathe properly for two months as a result of the assault.

Irving also alleged that Brigance gave another prisoner a razor to use as ...

Nebraska: Tape-Recorded, Restricted-Calling Prison Telephone System Passes Constitutional Muster

by John E. Dannenberg

The Nebraska Court of Appeals has upheld administrative regulation 205.3 (AR 205.3) of the Department of Correctional Services (DCS), which restricts prisoner phone calls to land-line, nonconference-call recipients and authorizes tape-recording of all non-attorney phone calls. In reversing an earlier district court injunction enjoining AR 205.3, the appellate court found that DCS’s new telephone system was the least restrictive means of accomplishing DCS’s goals of prison safety and security, and did not infringe upon prisoners’ constitutional rights.

In August 1997, Barry McCroy and other Nebraska prisoners sued DCS in state district court under 42 U.S.C. § 1983 for both injunctive relief and damages in regard to DCS’s new restrictive telephone program, the Inmate Calling System (IMS). The IMS established calling schedules and tape recording procedures for all prison phone calls except confidential attorney-client calls (defined as calls to court clerks, bailiffs and bar attorneys). Three-way calls, conference calls and call forwarding were prohibited. Additionally, the IMS limited prisoners to 20 pre-approved numbers and excluded all calls to cell phones, pagers, 800/900 numbers, 411 information numbers, state senators and the media.

In October 1997, the district court entered an ...

Absent Claim for Emotional Damages, Prisoner’s Psychotherapist-Patient Privilege Remains Intact

The Second Circuit U.S. Court of Appeals has entered a detailed opinion on the issue of psychotherapist-patient privilege when a district court is confronted with a request by prison officials to obtain a prisoner’s psychiatric records in discovery in a civil rights action. The appellate court concluded the privilege could not be overcome when the prisoner was not seeking damages for emotional harm in his lawsuit.

While imprisoned at New York’s Sing Sing Correctional Facility on December 20, 1999, prisoner Nathaniel Sims was being strip searched when guards Mike Blot and Francisco Carballo allegedly assaulted him without provocation or justification. The guards, however, claimed that Sims started the altercation.

Sims filed a civil rights complaint; after he was denied counsel, the defendants took his deposition. The defendants subsequently served a demand for production of “all psychiatric records of [Sims] since [his] incarceration in 1993.” Sims was appointed counsel after the deposition, and his attorney objected to the production request.

The district court ordered Sims to produce the documents. After the case was initially dismissed for failure to exhaust administrative remedies, an amended complaint was filed. The production order was reinstated and Sims filed a motion with the ...

Prolonged Bench Restraint and Excessive Pepper Spraying Requires Trial

The Eighth Circuit Court of Appeals has reversed a grant of summary judgment to prison officials in a prisoner’s lawsuit alleging Eighth Amendment violations when guards restrained him on a bench for 24 hours for refusing to accept a cell mate, and for pepper spraying him for refusing orders.

Before the appellate court was the appeal of Darrin Scott Walker, a prisoner at Missouri’s South Central Correctional Center. After Walker was handcuffed and moved from a one-man cell to a two-man cell, he slipped out of the handcuffs and refused to be recuffed because he did not want to be celled with the other prisoner.

The Court of Appeals found it was undisputed that Walker was restrained in an upright position on a bench for 24 hours. During that period he was denied water (except when he was allowed to use the bathroom at 1 p.m. one day and at 9:30 a.m. the next day), and denied food. The Court found that this treatment, which was designed to force Walker to agree to cell with another prisoner, was trial-worthy to determine if it was an excessive and disproportionate use of force.

The Eighth Circuit further ...

Fifth Circuit Reinstates Prisoner’s Environmental Tobacco Smoke Suit

by Matt Clarke

The Fifth Circuit Court of Appeals has reversed a district court’s order granting summary judgment to prison officials in a prisoner’s environmental tobacco smoke (ETS) lawsuit.

Getzell Johnson Murrell, Sr., a federal prisoner incarcerated in Beaumont, Texas, filed a pro se complaint against prison officials pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971). Murrell alleged that he suffered serious health problems after being exposed to excessive levels of ETS between 12 and 24 hours a day at his prison workplace and housing area. The ETS was allegedly so thick that he had to hold a wet towel over his face to breathe. Murrell also claimed he had advised the defendants that a smoking ban was not being enforced and that the ETS was causing him serious health problems.

The district court initially dismissed his lawsuit for failure to state a claim upon which relief could be granted, and Murrell appealed. The Fifth Circuit reversed the dismissal and remanded the case for further proceedings, finding that Murrell’s ETS complaint stated a claim. See: Murrell v. Chandler, 109 Fed.Appx. 700 (5th Cir. 2004) (unpublished). On remand, the ...

Federal Prison Guards’ Convictions Affirmed in Sex Scandal

by David M. Reutter

The Eleventh Circuit Court of Appeals has upheld the convictions of two guards convicted in a sex-for-contraband scheme at the Women’s Federal Correctional Institute in Tallahassee, Florida. PLN previously reported the arrests and indictments in this case. [See: PLN, Aug. 2007, p.38; Oct. 2006, p.12].

Before the court was the appeal of former prison guards Alan Moore and Gregory Dixon. While they had proceeded to trial, their four co-defendants pleaded guilty, assisted federal investigators and testified against them. Moore and Dixon were found guilty of conspiracy to accept an illegal gratuity. Moore was also found guilty of witness tampering, while Dixon received additional convictions for bribery. Both were sentenced to twelve months in prison followed by three years supervised release.

On appeal, they argued there was insufficient evidence to prove a conviction of conspiracy to accept an illegal gratuity and an “official act.” The appellate court noted that the elements of conspiracy are (1) an agreement between the defendant and one or more persons, (2) the object of which is to do an unlawful act or a lawful act by unlawful means. A “formal agreement” need not be demonstrated, as an agreement may ...

$150,000 Settlement In Missouri Jail Suicide Suit

On May 21, 2008, the Sheriff of Adair County, Missouri agreed to settle a wrongful death suit brought by the family of a prisoner who committed suicide while at the Adair County Detention Center (ACDC). The settlement requires the county to pay $150,000 to the family of the prisoner ...

First Circuit Upholds BOP’s Discretion to Limit Halfway House Placement

The U.S. Court of Appeals for the First Circuit upheld the authority of the federal Bureau of Prisons (BOP) to limit halfway house placements.

In 2005, the BOP promulgated formal rules categorically limiting halfway house placement to the last ten percent of a prisoner’s sentence, not to exceed six months. [See, e.g.: PLN, Feb. 2006, p.10].

Richard Muniz and Victor Gonzalez, both federal prisoners, challenged the rules via petitions for writs of habeas corpus. They argued that the rules conflicted with the BOP’s statutory obligation to consider, on an individual basis, certain factors when making halfway house placements. The district court agreed and granted their petitions; the BOP appealed.

The First Circuit began its analysis with the text of the statute. Under 18 U.S.C. § 3621(b), the BOP is required to consider five factors when making halfway house placements. Several of those factors require individualized assessment. Unlike the Second, Third, Eighth and Tenth Circuits, though, the appellate court found the BOP’s use of categorical rulemaking to be an appropriate exercise of discretion. Accordingly, the First Circuit reversed the judgment of the district court. See: Muniz v. Sabol, 517 F.3d 29 (1st ...

Ninth Circuit: Orange County Jail Violated Ad Seg Prisoners’ ADA, Religious and Exercise Rights

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals ruled that restrictions on prisoners in administrative segregation (ad seg) at the jail in Orange County, California, related to exercise and group religious programs, violated their federal rights. The appellate court further held that inadequate physical facilities at the jail and reduced programs for disabled prisoners violated the Americans with Disabilities Act (ADA).

Fred Pierce and three other disabled ad seg prisoners at the Orange County jail had filed a 42 U.S.C. § 1983 complaint in U.S. District Court (C.D. Cal.) against Orange County and then-sheriff Michael Carona. Following a six-day bench trial, the district court found the plaintiffs had failed to demonstrate any constitutional injury under § 1983; the court further terminated a prior consent decree against the jail [See: Stewart v. Gates, 450 Fed.Supp. 583 (C.D. Cal. 1978)], pursuant to the Prison Litigation Reform Act, 18 U.S.C. § 3626(b)(3).

The plaintiffs appealed, and the Ninth Circuit affirmed in part and reversed in part. The Court of Appeals reversed the lower court’s termination of consent decree provisions related to ad seg prisoners’ access to exercise and religious programs, because ...

Fourth Circuit Upholds Prisoner Exclusion in Virginia FOIA

The Fourth Circuit Court of Appeals upheld the constitutionality of excluding prisoners from the right to obtain public records under Virginia’s Freedom of Information Act (FOIA), Va. Code Ann. §§ 2.2-3700 to 3704 (2005).

Joseph M. Giarratano, a Virginia state prisoner, filed a FOIA request with the Virginia Department of Corrections (VDOC) for copies of treatment protocols for prisoners with Hepatitis C, to aid him in potential litigation related to his medical care. The request was denied because prisoners are specifically excluded from Virginia’s FOIA.

Giarratano then filed a civil rights action pursuant to 42 U.S.C. § 1983 in federal court, alleging that the statutory exclusion of prisoners from the FOIA violated the Due Process and Equal Protection clauses of the Fourteenth Amendment, both facially and as applied, and violated the First Amendment as applied. The U.S. District Court granted the VDOC’s motion to dismiss and Giarratano appealed.

On appeal, Giarratano claimed that the exclusion of prisoners from Virginia’s FOIA violated the Equal Protection clause unless the court determined that prisoners were more prone to filing frivolous FOIA requests than the general public. He also claimed that the exclusion violated the Equal Protection clause ...

Eleventh Circuit Reverses Dismissal of Challenge to Florida DOC Ban on Pen Pal Requests

The Eleventh Circuit Court of Appeals has reversed a district court order dismissing a Florida prisoner’s civil rights action that challenged a prison policy which prohibited him from sending letters to churches and ministers requesting prayer partners and pen pals.

The federal lawsuit was filed in the Northern District of Florida by state prisoner R. Casper Adamson, who is “a converted Southern Baptist.” Adamson attempted to mail thirteen letters to Baptist churches and ministers to request “prayer partners and religious pen pals.”

Prison officials intercepted the letters and refused to mail them. They contended that Florida Dept. of Corrections (FDOC) policy prohibited the use of “correspondence privileges to solicit or otherwise commercially advertise for money, goods, or services,” which “includes advertising for pen pals.” See: FL Admin. Code, Chapter 33.210.101(9).

Adamson argued the policy violated his First Amendment right to freedom of religion and freedom of speech. He also alleged it infringed on his “right to marry by preventing him from looking for a girlfriend and fiancée.”

The U.S. District Court found the FDOC policy constitutional, holding that it furthered “an important or substantial governmental interest unrelated to the suppression of expression.” That interest was ...

Eleventh Circuit Unpublished Decision on PLRA Administrative Exhaustion Requirements Trumped by Published Ruling

In an unpublished ruling, the Eleventh Circuit Court of Appeals held that summary judgment, rather than a motion to dismiss, was the proper procedure to determine whether a prisoner had exhausted administrative remedies under the Prison Litigation Reform Act (PLRA). However, that ruling was superceded by a published decision from the same appellate court.

In its first ruling the Eleventh Circuit considered the appeal of Georgia prisoner Benjamin R. Singleton, whose civil rights complaint stemmed from a February 19, 2004 incident in which a bus transporting prisoners caught fire. Singleton claimed that he suffered injuries and loss of property as a result of prison officials’ wrongdoing.

Two days after the accident Singleton filed an informal grievance; he then proceeded to a formal grievance, which was denied by the warden on March 30, 2004. Under Georgia Department of Corrections policy, Singleton had four business days to appeal the warden’s response by submitting it to his assigned counselor or the Grievance Coordinator.

The defendants argued that Singleton had filed his grievance appeal one day late, referring to a form signed by prison officials that indicated it was received on April 6, 2004; they filed a motion to dismiss, which the district ...

Ohio Supreme Court Rules Sex Offender Residency Restrictions Not Retroactive

by Matt Clarke

The Supreme Court of Ohio held that a state statute restricting sex offenders from residing within 1,000 feet of a school (R.C. 2950.031) did not apply to sex offenders whose home purchase and offense occurred before the statute’s enactment.

Gerry R. Porter was convicted of sexual imposition in 1995 and sexual battery in 1999. He and his wife had bought a house in 1991. In 2003, the General Assembly enacted R.C. 2950.031 (later amended and recodified at 2950.034), stating that no registered sex offender “shall establish or occupy a residential premises within one thousand feet of any school premises.” 150 Ohio Laws, part IV, 6657.

Francis M. Hyle, chief legal officer of Green Township, initiated an action against Porter alleging that portions of Porter’s property were within 1,000 feet of the premises of a school. Hyle sought and was granted a permanent injunction that barred Porter from living in his home. Porter appealed.

The First District Court of Appeals affirmed the lower court, but certified its judgment as being in conflict with Nasal v. Dover, 169 Ohio App.3d 262, 862 N.E.2d 571 (Ohio Ct. App ...

Denial of Bedding, Clothes to Florida Prisoner States Claim

Florida’s First District Court of Appeal held that a prisoner’s civil rights complaint alleging that a guard denied him blankets, bed sheets and clean clothing for four-and-a-half months, causing illness and injury, stated a claim that was sufficient to withstand summary dismissal.

The Court’s ruling came in an appeal filed by Florida state prisoner Wendall Hall after his complaint was dismissed by a Leon County Circuit Court under § 57.085(6), Florida Statutes (2006), which is Florida’s prisoner indigency statute.

The Circuit Court held that Wendall’s claim for monetary damages against the Florida Department of Corrections (FDOC) was barred by sovereign immunity, and the First District agreed with that holding. However, the Court of Appeal found that a claim against defendant “Officer Knipp” had been improperly dismissed.

Hall’s complaint stated a claim under § 768.28(9)(a), Florida Statutes, by alleging that Knipp had acted “in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” In effect, Hall claimed that Knipp “was acting outside the scope of his employment – in the sense of not exercising power lawfully vested in him ...” when he ...

News in Brief:

Alabama: On May 25, 2009, Ashton Mink, 22, and Joshua Southwick, 26, escaped from the Perry County Corrections Center in Uniontown. The facility is owned and operated by LCS Corrections Services. The prisoners escaped when Ashton’s sister, Angela Mink, 25, and Jacquelin Mink, 25, his wife, cut holes in the perimeter fence. All four were caught in North Dakota on June 6 following a shootout with officers and a 14-hour standoff. Dick Harbison, LCS vice president of operations, said two shift captains and five guards were fired for not adequately supervising the prisoners.

Arizona: On June 18, 2009, at approximately 9:00 PM, a guard at the Arizona State Prison Complex-Perryville shot and killed himself while on duty patrolling the outside perimeter of the facility. The guard’s name has not been released. An investigation is underway.

Arkansas: On June 2, 2009, five unnamed guards were placed on unpaid leave following the escape of two prisoners from the maximum security Cummins Unit in Grady. Jeffrey Grinder, 32, and Calvin Adams, 39, walked out of the prison on May 29 wearing guard uniforms made at the facility. Video surveillance shows the men putting on the uniforms in the library and ...

Alabama Raises Rates Charged for Prisoner Labor

In October 2007, the Alabama Department of Corrections (DOC) began charging other government entities for prisoner labor, such as work crews that pick up highway trash. With the start of the next fiscal year on October 1, 2009, the DOC will raise the rate from $10 per prisoner per day to $15. An exception is the Alabama Department of Transportation, which has been paying $20 per prisoner per day – a rate that increased to $50 last February.

The driving force behind the rate increase is a $43.3 million shortfall between the DOC’s annual budget and the amount it actually takes to run the state’s prison system. “What we’ve been trying to do with this is ... raise revenue to meet our operational costs,” said DOC spokesman Brian Corbett.

The prisoners who do the work apparently will not receive a raise above the $2 per day they are paid for their labor. Why do they toil for such meager compensation? “It’s a better feeling compared to being inside the prison,” said Childersburg Work Release Center prisoner Samuel Grayson.

In FY 2007, the DOC provided other government agencies with 103,000 man hours of prisoner labor per month ...

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

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

Sala-Thiel Thompson, a federal prisoner, filed a habeas petition under 28 U.S.C. § 2241 alleging that his conviction was entered without jurisdiction and that several of his conditions of confinement were unlawful. The district court sua sponte dismissed Thompson’s suit.

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

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

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

 

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