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Prisoner Education Guide

Prison Legal News: September, 2009

Issue PDF
Volume 20, Number 9

In this issue:

  1. Anatomy of the Modern Prisoners’ Rights Suit: A Practitioner’s Guide to Successful Jury Trials on Behalf of Prisoner-Plaintiffs* (p 1)
  2. From the Editor (p 14)
  3. Innocent Georgia Man Receives $500,000 as Compensation for Rape Conviction (p 14)
  4. Former Prisoner Convicted of Impersonating Criminal Defense Attorney (p 15)
  5. Why False Imprisonment Recoveries Should Not Be Taxable (p 16)
  6. Texas’ Parole Condition X Violates Due Process (p 20)
  7. $2.16 Million Settlement in Dauphin Pennsylvania Jail Strip Search Lawsuit (p 21)
  8. Using Chemical Agents on Mentally Ill Prisoners Unconstitutional (p 22)
  9. Audit Finds California Prison Receiver Broke State Law by Making No-Bid Contracts with Verizon (p 23)
  10. Fifth Circuit Upholds $14 Million Award Against Louisiana DA’s Office in Wrongful Conviction Suit; Affirmed by En Banc Ruling (p 24)
  11. Third Circuit Upholds Pennsylvania DOC Policy Requiring Control Number for Legal Mail (p 26)
  12. Third Circuit Upholds Ban on UCC Materials; Sixth Circuit Disagrees (p 28)
  13. Working in Legal Field Not Prohibited While on Federal Supervised Release (p 29)
  14. Prisoners Not Evacuated, Parolees Rounded Up as Hurricanes Hit (p 30)
  15. Contraband Smuggling by Texas Prison Guards Rarely Punished Harshly (p 32)
  16. Oklahoma Prisoner Beaten to Death After Celled with Co-Defendant He Testified Against (p 33)
  17. California Lifers’ New Litigation Tool: DA’s “Opinion” and Governor’s “Belief” Do Not Constitute “Evidence” in Parole Denial Cases (p 34)
  18. Notice Required for Rejected Packages BOP Warden Denied Qualified Immunity (p 34)
  19. Organ Harvesting In China Prison Goes High Tech (p 35)
  20. Former Oklahoma Sheriff Convicted of Sex Crimes Now Where to Put Him? (p 36)
  21. Federal Three-Judge Panel Orders California To Reduce Prison Population By 44,000 Prisoners Within Two Years (p 36)
  22. New York’s Correction Law § 24 Held Unconstitutional by US Supreme Court (p 38)
  23. $25,000 Award to Utah Muslim Prisoner Attacked by Death Row Prisoner Following 9/11 (p 38)
  24. FBI And States Expand Collection Of DNA To The Innocent (p 39)
  25. Sheriff and Guards Indicted: Sex, Misconduct and Contraband Scandal at Texas Jail (p 40)
  26. Washington States Passes New Law for Automatic Restoration of Voting Rights (p 40)
  27. Philadelphia Tax Break for Hiring Ex-Prisoners a Bust (p 41)
  28. U.S. Supreme Court Recedes from Saucier’s Mandatory Provisions for Determining Qualified Immunity Claims (p 42)
  29. California: Parole Board’s Policy Barring Friendly Oral Witness Testimony At Lifer Hearings Ruled An “Underground Regulation” (p 42)
  30. $3.75 Million Settlement for Orange County, California, Jail Detainee Severely Beaten by Prisoners (p 43)
  31. Violence on the Rise in Arizona Prisons (p 44)
  32. Maryland Prisoners Receive Kosher Food (p 44)
  33. From the Bottom of the Heap: The Autobiography of Black Panther Robert Hillary King, Oakland, CA: PM Press (2009) $24.95 hardback, 217 pages (p 45)
  34. Sixth Circuit Overturns $625,000 Verdict for Ohio Prisoner Sexually Abused by Guard (p 46)
  35. Oklahoma Prisoner Awarded $65,000 for Inadequate MSRA Care (p 46)
  36. $1 Million Settlement in Santa Clara, California Jail Suicide (p 47)
  37. No Qualified Immunity for Guards Who Failed to Help Vomiting Prisoner Who Died (p 48)
  38. Indigent Texas Prisoners May No Longer be Required to Repay Cost of Court-Appointed Counsel (p 48)
  39. California Prison Still Subpar, Grand Jury Finds (p 49)
  40. News in Brief: (p 50)
  41. $1,000 Jury Award to Beaten Missouri Prisoner (p 52)

Anatomy of the Modern Prisoners’ Rights Suit: A Practitioner’s Guide to Successful Jury Trials on Behalf of Prisoner-Plaintiffs*

by Alphonse A. Gerhardstein+

Ed. Note: This article is written with the aim of assisting attorneys who are litigating prison-related lawsuits; however, it is also very helpful for pro se plaintiffs and for parties represented by counsel who want a better understanding of the legal process and procedures in their ...

From the Editor

The cover story this month, on the nuts and bolts of winning a prisoner rights case is by Alphonse Gerhardstein, one of the top civil rights lawyers in the country. His invaluable advice applies equally to pro se prisoner litigants as it does to the best attorneys. There are things ...

Innocent Georgia Man Receives $500,000 as Compensation for Rape Conviction

The State of Georgia paid $500,000 to a man who spent 28 years in prison for a rape he did not commit. John Jerome White was arrested in 1979 after an elderly woman identified him during a police line up as her attacker.

In 2007, DNA evidence cleared White ...

Former Prisoner Convicted of Impersonating Criminal Defense Attorney

On April 15, 2009, a federal jury convicted a former prisoner who impersonated a lawyer on charges of mail fraud and making false statements, and the U.S. District Court subsequently imposed a 51-month prison sentence.

Howard O. Kieffer, 54, served time in federal prison from 1989 to 1993 on ...

Why False Imprisonment Recoveries Should Not Be Taxable

by Robert W. Wood1

Claims for false imprisonment may be brought in various ways under federal or state law. An individual who has been wrongfully incarcerated may sue under 42 U.S.C. Section 1983 for a violation of his constitutional rights. The individual may also sue under state tort ...

Texas’ Parole Condition X Violates Due Process

Texas’ parole Condition X has come under scrutiny in a federal court case. On December 12, 2008, a U.S. magistrate judge issued a 30-page order granting partial summary judgment in favor of parolee David Brian Jennings, after concluding that the Texas Board of Pardons and Paroles had illegally imposed ...

$2.16 Million Settlement in Dauphin Pennsylvania Jail Strip Search Lawsuit

A class action lawsuit alleging illegal strip searches occurred regularly at Pennsylvania’s Dauphin County Prison (DCP) has been settled for $2.16 million. The class claimed they were arrested on minor charges and strip searched without any particularized suspicion that they possessed weapons or other contraband.

The lawsuit was ...

Using Chemical Agents on Mentally Ill Prisoners Unconstitutional

by David M. Reutter

As the mentally ill become more prevalent within the nation’s prison population, guards and prison administrators face a dilemma when confronted with such a prisoner who is not conforming to prison rules. While it said it was “a hard case,” a Florida federal district court ...

Audit Finds California Prison Receiver Broke State Law by Making No-Bid Contracts with Verizon

An investigation by the California Bureau of State Audits has revealed that Prison Health Care Services, the office overseeing prison health care reform in California, violated legal requirements and bypassed internal controls when it acquired $26.7 million in information technology (“IT”) goods and services without inviting competitive bids. The ...

Fifth Circuit Upholds $14 Million Award Against Louisiana DA’s Office in Wrongful Conviction Suit; Affirmed by En Banc Ruling

by Matt Clarke

On December 19, 2008, the Fifth Circuit Court of Appeals upheld a federal jury award of $14 million in a case involving the wrongful conviction of a Louisiana man for attempted armed robbery and first-degree murder, in which the prosecutors withheld an exculpatory blood test report and ...

Third Circuit Upholds Pennsylvania DOC Policy Requiring Control Number for Legal Mail

by David M. Reutter

Finding that no legitimate penological interest existed to support a Pennsylvania Department of Corrections (PDOC) policy that requires a PDOC-issued control number on correspondence for it to qualify as legal mail, a U.S. District Court issued an injunction prohibiting enforcement of the policy. However, that ...

Third Circuit Upholds Ban on UCC Materials; Sixth Circuit Disagrees

The Pennsylvania Department of Corrections (PDOC) may lawfully ban the receipt and possession of materials related to the Uniform Commercial Code (UCC), the Third Circuit Court of Appeals held on July 29, 2008. In a more recent ruling, however, the Sixth Circuit upheld a preliminary injunction barring the Michigan DOC ...

Working in Legal Field Not Prohibited While on Federal Supervised Release

Federal probation officers cannot restrict persons on supervised release from working as legal assistants, the U.S. Court of Appeals for the Eleventh Circuit held on April 8, 2009.
Yraida L. Guanipa, convicted of attempted possession with intent to distribute cocaine, was placed on supervised release following her federal prison ...

Prisoners Not Evacuated, Parolees Rounded Up as Hurricanes Hit

On September 8, 2008, Texas Governor Rick Perry issued a disaster declaration for 88 counties as Hurricane Ike bore down on the Texas coastline.

The 900-mile wide storm, with winds in excess of 100 mph “...is now in the Gulf of Mexico and making its approach toward our coast,” Perry ...

Contraband Smuggling by Texas Prison Guards Rarely Punished Harshly

by Matt Clarke

A review conducted by a Houston newspaper concluded that a large quantity and variety of contraband is still being smuggled into Texas prisons by state prison guards, and those caught smuggling rarely receive harsh punishment.

Between 2003 and 2008, the Texas Department of Criminal Justice (TDCJ) brought ...

Oklahoma Prisoner Beaten to Death After Celled with Co-Defendant He Testified Against

On March 11, 2009, at approximately 9:15 p.m., Paul David Duran, Jr., 23, a prisoner at the Oklahoma State Penitentiary (OSP) in McAlester, was found beaten to death fifteen minutes after being locked in a cell with Jessie James Dalton, 32, who was serving a sentence of life ...

California Lifers’ New Litigation Tool: DA’s “Opinion” and Governor’s “Belief” Do Not Constitute “Evidence” in Parole Denial Cases

In the final chapter of the litigation saga of now-paroled PLN writer John Dannenberg, on April 22, 2009, the California Supreme Court declined review and approved publication of the state appellate court’s January 23, 2009 decision in In re Dannenberg, 173 Cal.App.4th 237 (Cal. App. 6th Dist ...

Notice Required for Rejected Packages BOP Warden Denied Qualified Immunity

The U.S. Court of Appeals for the Eighth Circuit has affirmed the denial of qualified immunity for a Bureau of Prisons (BOP) warden accused of denying a prisoner procedural due process in connection with the rejection of two packages.

While Vernon Bonner was incarcerated at the Federal Correctional Institution ...

Organ Harvesting In China Prison Goes High Tech

China’s Ministry of Health currently employs several teams of specialized doctors to harvest organs from condemned prisoners. When a prisoner is scheduled to die selected teams are sent to China’s Changi Prison depending upon which organs are to be harvested.

Fifteen doctors compose the renal transplant team which ...

Former Oklahoma Sheriff Convicted of Sex Crimes Now Where to Put Him?

by Gary Hunter

Oklahoma officials are trying to decide the best way to incarcerate ex-sheriff Mike Burgess, 56, now that he is a convicted sex offender. On January 9, 2009 the former Custer County lawman was convicted on 13 of 35 felony counts of sexually abusing female prisoners under his ...

Federal Three-Judge Panel Orders California To Reduce Prison Population By 44,000 Prisoners Within Two Years

In a landmark ruling, a federal three-judge panel ordered the California Department of Corrections and Rehabilitation (CDCR) to cap the prison population of its 33 adult prisons to 137.5% of their 79,828 design capacity, or 109,763 prisoners, within two years.
Since the present population (counting only those ...

New York’s Correction Law § 24 Held Unconstitutional by US Supreme Court

New York’s Correction Law § 24 Held Unconstitutional by US Supreme Court

by Brandon Sample

New York’s Correction Law § 24, which prevents prisoners from bringing 42 U.S.C. § 1983 actions for damages against prison officials in New York courts of general jurisdiction, violates the Supremacy Clause of the ...

$25,000 Award to Utah Muslim Prisoner Attacked by Death Row Prisoner Following 9/11

A Utah federal jury awarded $25,000 to a Muslim prisoner who claimed guards set him up for a beating following the 9/11 guerrilla attacks. The oddest part of the situation is the prisoner was beat by a death row prisoner who was to be segregated from other prisoners ...

FBI And States Expand Collection Of DNA To The Innocent

DNA collection is expanding to individuals arrested or detained as state and federal law enforcement officials seek to solve more crimes.

The Federal Bureau of Investigation (FBI) joined 15 states in April 2009 that collect DNA from individuals awaiting trial. In addition, the FBI will now collect DNA from detained ...

Sheriff and Guards Indicted: Sex, Misconduct and Contraband Scandal at Texas Jail

by Matt Clarke

On February 27, 2009, a grand jury in Montague County, Texas returned a 106-count indictment against former Sheriff Bill Keating and ten jail guards, four prisoners and two other people in connection with drug-related offenses, contraband smuggling and sexual misconduct at the Montague County Jail.

Keating, 62 ...

Washington States Passes New Law for Automatic Restoration of Voting Rights

Governor Christine Gregoire has signed into law a bill that reforms Washington’s convoluted system for restoring voting rights. The measure will restore the right to vote automatically to citizens who have come out of the criminal justice system. The new law took effect on July 26, 2009.

“This is ...

Philadelphia Tax Break for Hiring Ex-Prisoners a Bust

Giving employers a $10,000 tax break to hire ex-offenders was a good idea. At least until the Philadelphia City Council ruined it.

While running for mayor of Philadelphia, Michael Nutter proposed a new way to cut crime: Help ex-cons get jobs by offering a $10,000 tax credit to ...

U.S. Supreme Court Recedes from Saucier’s Mandatory Provisions for Determining Qualified Immunity Claims

by David M. Reutter

The U.S. Supreme Court has retreated from a mandatory procedural practice for resolving government officials’ qualified immunity claims, leaving it to the discretion of lower courts as to which prong of the test to apply as required by the facts of the case.

At issue ...

California: Parole Board’s Policy Barring Friendly Oral Witness Testimony At Lifer Hearings Ruled An “Underground Regulation”

The California Office of Administrative Law (OAL) struck down the unwritten policy of the California Board of Parole Hearings (BPH) that denied all requests for friendly oral witness testimony at lifer parole hearings. The April 27, 2009 OAL ruling found that because this policy was not expressly permitted by existing ...

$3.75 Million Settlement for Orange County, California, Jail Detainee Severely Beaten by Prisoners

After suffering severe brain damage while confined at an Orange County Jail in California, Fernando Ramirez, represented by attorneys Mark W. Eisenberg of Newport Beach and Jerry N. Gans of Santa Ana, sued the County, the Sheriff’s Department, the Sheriff and various officials in federal court, alleging that jail ...

Violence on the Rise in Arizona Prisons

by David M. Reutter

The level of violence in Arizona prisons is increasing – at least that is the conclusion to be drawn from recent reports. In 2008 alone there were four homicides in the state’s prison system, and with 12 death investigations still pending that number could rise. Arizona ...

Maryland Prisoners Receive Kosher Food

Beginning on April 9, 2009, The Maryland Department of Public Safety and Correctional Services (DPSCS) started providing kosher meals to state prisoners with religious dietary needs.

The decision to provide kosher food came after a meeting between the Secretary of the DPSCS and representatives of the Jewish community last summer ...

From the Bottom of the Heap: The Autobiography of Black Panther Robert Hillary King, Oakland, CA: PM Press (2009) $24.95 hardback, 217 pages

Book review by Mel Motel

Robert Hillary King writes like he speaks. I had the honor of spending some time with the only freed member of the Angola 3 in April 2009 when he swung through Vermont on his book tour. Starting softly, in front of an audience of 60 ...

Sixth Circuit Overturns $625,000 Verdict for Ohio Prisoner Sexually Abused by Guard

In what one judge described as a “legal travesty,” on March 13, 2009, the U.S. Court of Appeals for the Sixth Circuit overturned a jury verdict in favor of a prisoner who had been sexually abused by a prison guard.

While incarcerated at the Ohio Reformatory for Women, Michelle ...

Oklahoma Prisoner Awarded $65,000 for Inadequate MSRA Care

On March 12, 2009, Chief U.S. District Judge Claire Eagan entered judgment in the amount of $65,000 against an Oklahoma state prison Health Services Administrator (HSA) accused of failing to provide a prisoner adequate medical treatment.

While incarcerated at the Northeast Oklahoma Correctional Center (NOCC), Richard Potts contracted ...

$1 Million Settlement in Santa Clara, California Jail Suicide

California’s Santa Clara County paid $1 million to the estate of a mentally ill prisoner who committed suicide at the Santa Clara County Jail (SCCJ). The estate’s federal civil rights complaint claimed jail officials failed to provide necessary medical treatment for the prisoner.

During his years as a ...

No Qualified Immunity for Guards Who Failed to Help Vomiting Prisoner Who Died

The U.S. Court of Appeals for the Eighth Circuit has affirmed a denial of qualified immunity for three Greene County, Arkansas jail guards accused of violating a prisoner’s Eighth Amendment rights.

On January 4, 2002, Phil E. Blount, a moderately obese man who suffered from mental illness and ...

Indigent Texas Prisoners May No Longer be Required to Repay Cost of Court-Appointed Counsel

by Bill Habern

On March 11, 2009, the Texas Court of Appeals in Amarillo issued an opinion in a case involving Gilbert Alexander Perez, an indigent defendant. Perez raised two issues on appeal. First was the extreme sentence imposed in his case (25 years for possession of less than four ...

California Prison Still Subpar, Grand Jury Finds

The Pleasant Valley State Prison (PVSP) in Coalinga, California continues to suffer from overcrowding and inadequate medical care, according to a March 25, 2009, report by the Fresno County Grand Jury.

As part of section 919(b) of the California Penal Code, grand juries are charged with inspecting the condition ...

News in Brief:

Arizona: On July 17, 2009, 27-year-old Danny Torres, a guard at the Corrections Corporation of America run Saguaro Correctional Center in Eloy, was shot and killed during a home invasion robbery in Tucson. Pima County Sheriff’s Deputy Dawn Barkman said Torres was one of three men involved in the ...

$1,000 Jury Award to Beaten Missouri Prisoner

A Missouri federal jury awarded a prisoner $1,000 on a state law battery claim. The award came after trial on several claims brought by Eugene Kenneth Jones-El for damages he incurred while imprisoned at Missouri’s Eastern Reception Diagnostic and Correctional Center (ERDCC).

Jones-El went to the office of ...

 

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