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Prisoner Education Guide

Prison Legal News: September, 2009

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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 case. The information included below does not apply to any specific or particular case.

I. Introduction

This article is designed to serve as a practice guide for attorneys representing prisoners in civil rights jury trials. In the past, the vast majority of prisoner litigation, including cases pursued by this author, focused on injunctive relief to improve conditions of confinement and we therefore did bench trials. However, the 1996 Prison Litigation Reform Act (PLRA)1 has changed our focus. As will be explained, the PLRA forces practitioners to sue for substantial damages.2 This article should help a prisoner-plaintiff’s attorneys do just that. From case selection through verdict, I provide guidance on the practical and legal aspects of prisoner representation.

In the first part of this article we will address case and client selection. We will then work backward from our desired verdict. Litigators must stay focused on the result ...

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 that prisoner plaintiffs can do to successfully litigate claims whether they have counsel or not.

One of the most common reasons for prisoners’ lawsuits to be dismissed these days is failure to exhaust administrative remedies. No matter how meritorious the case or how serious the injury, if the case is not first exhausted through the grievance system the federal court routinely dismiss the cases. Prison officials have quickly realized that by failing or refusing to process grievances they can effectively immunize themselves from suit. This requires perseverance on the part of prisoner plaintiffs to utilize the prison or jail grievance system and if they don’t to show why they could not.

The recent ruling by the three judge panel in Plata v. Schwarzenegger ordering the California prison system to reduce its prison population in order to be able to provide constitutionally adequate health care is long overdue and a ...

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 and implicated the actual attack, James Parham. As White was released, Parham was arrested. Both White and Parham were in the police line up that resulted in the elderly woman identifying White.

White, 48, had initially been set to receive $709,000 as compensation, but lawmakers reduced it because he had a separate conviction on a burglary charge. Georgia has paid out $3.9 million to four other people cleared through DNA evidence.

Source: Atlanta-Journal Constitution

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 felony counts of defrauding the government and filing false tax returns. He did not learn his lesson, apparently, because following his release he began posing as a lawyer. Over the course of several years Kieffer represented at least 16 clients in ten states, mostly in post-conviction proceedings.

Kieffer was able to get away with his impersonation with the help of unsuspecting attorneys who vouched for him to be admitted pro hac vice to practice before local courts.
Other attorneys thought Kieffer was a lawyer based on his knowledge of the federal court system and attendance at attorney training seminars. He also operated his own legal consulting firm, Federal Defense Associates, that used a mail drop address in Santa Ana, California, and ran an Internet listserv called BOPWatch that dealt with federal prison-related issues [See: PLN, Jan. 2009, p.44].

Among his unsuspecting clients, Kieffer represented Gwen Bergman in a murder-for-hire ...

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 law, making claims for the traditional torts of false imprisonment, malicious prosecution, or abuse of process. Furthermore, many states now expressly provide a statutory scheme for addressing false imprisonment claims.

At the root of all of these causes of action is a fairly common fact pattern: a plaintiff is arrested or convicted, spends time behind bars, is later exonerated, and then seeks redress for his injuries. There may or may not be prosecutorial misconduct. Although there may well be nuances between the differing legal bases upon which such a claim may be brought, I have argued that the commonality of this fact pattern should mean that such recoveries should be excludable from income under Section 104 of the Code.2 I will not re-state all of those arguments here, but will endeavor to summarize them briefly.
[Editor’s Note: The reasoning used in this argument may also be successful in ...

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 nonetheless held that the Eighth Amendment prohibits using chemical agents on mentally ill prisoners, who lack the mental capacity to conform their behavior to prison rules.

That ruling came in a civil rights action filed on behalf of seven individual prisoners. The Court’s finding, after a bench trial, was that only two of the prisoners’ rights were violated by the Florida Department of Corrections (FDOC) policy. All of the prisoner plaintiffs were on close management (CM), which is FDOC’s version of long-term administrative confinement, at the times relevant to the complaint.

Each prisoner was housed at Florida State Prison (FSP) and subjected to chemical agent spraying. FDOC designated them as having the ability to conform their behavior to the prison’s standards. Counsel for the prisoners argued they did not have the ability to conform, making the use of chemical agents on them cruel and unusual punishment. They ...

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 investigation, conducted by state Auditor Elaine M. Howle pursuant to the California Whistleblower Protection Act, was initiated when, shortly after his appointment in January 2008, J. Clark Kelso, the office’s new receiver, discovered that some of the IT contracts executed during his predecessor’s tenure may not have followed appropriate state laws and policies. Coincidentally, Kelso had gained familiarity with IT contracting problems of a similar nature during his tenure as California’s Chief Information officer (prior to his federal-court-appointment as Receiver). In responding to the audit, Kelso noted that, “For better or for worse,” his predecessor had devoted the bulk of the resources of the receiver’s office to addressing the very immediate problems posed by “abhorrent clinical conditions on the ground in the prisons.” Kelso acknowledged that, as a consequence, perhaps not enough attention had been paid to the administration of the state’s contracting system -- a ...

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 ruling was later reversed by the Third Circuit Court of Appeals.

Prior to October 2002, any mail that indicated it was from a court or attorney, or otherwise marked as legal mail, was opened in a prisoner’s presence. The new policy, however, PDOC policy DC-ADM 803, disregarded the source listed on the return address. Instead, prison officials relied only on whether there was a control number on the envelope when determining if the mail constituted legal mail that should be opened in the prisoner’s presence.

There are two methods by which a PDOC prisoner can receive legal mail. One allows for legal correspondence to be hand-delivered unsealed, which provides for inspection, sealing and then delivery to the prisoner without further interference by prison staff. The other method is via postal mail.

When legal mail is sent through the postal service, the new PDOC policy requires that such mail ...

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 from enforcing a policy that restricted prisoners’ access to UCC materials.

The UCC is one of several acts which seek to harmonize the law on sales and commercial transactions in all 50 states to better enable interstate commerce. That’s the real world short answer.

If you’re unfamiliar with the prison version of the UCC, here’s a brief introduction. Are you tired of being in prison? If you answered yes, then you might be interested in Cracking the Code, a book that tells you step-by-step how to file a lien against your judge and prosecutor. Cracking the Code explains how, after the United States went off the gold standard, the government created a split personality for each of its citizens: The real you and a fictional person called the “strawman.” Your strawman was pledged by the United States as collateral for its ever-growing trillion dollar deficit. The judge ...

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 sentence for drug conspiracy charges. She was prohibited by her probation officer from working as a paralegal based on a condition of her supervised release that barred her from associating with convicted felons or any person engaged in criminal activity.

Guanipa filed a Fed.R.Crim.P.32.1(c) motion seeking clarification of the associational restriction condition as it related to her employment as a paralegal. The district court denied the motion, and Guanipa appealed.

In an unpublished opinion, the Eleventh Circuit reversed. First, the appellate court held that probation officers do not have authority to impose occupational restrictions. Rather, according to the Court of Appeals, “district courts are exclusively authorized with imposing occupational restrictions as a condition of supervised release.”

More importantly, citing Arciniega v. Freeman, 404 U.S. 4 (1971), the Eleventh Circuit held that associational restrictions, like the one imposed on Guanipa, do not extend to ...

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 “ now in the Gulf of Mexico and making its approach toward our coast,” Perry said. “The next few days will be crucial for residents to follow the direction of local leaders and to take the necessary steps to protect themselves and their families.”

As Ike passed over the warm waters of the Gulf it was expected to reach Category 3 conditions of 150 mph winds with a storm surge of up to 25 feet. Officials in Brazoria County, which is located less than 50 miles from the coast, issued mandatory evacuation orders to local residents. However, several prison units holding thousands of Texas Dept. of Criminal Justice (TDCJ) prisoners in Brazoria County were not evacuated.

Prisoners at the Ramsey I Unit sat helpless before the storm hit. “They turned the electricity off two days before the storm got there and it stayed off for five days,” TDCJ prisoner Jesus Val Verde stated in an interview with PLN. “There was no electricity for the fans ...

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 contraband-related disciplinary action against 263 employees. Of those, 75% received probation, 35 were fired and 26 received no punishment. The only employee who was criminally prosecuted and convicted did not receive prison time.

Contraband smuggling is “the biggest security problem the prisons face,” according to John Moriarty, TDCJ’s Inspector General. “One corrupt employee can really compromise the security of the operation tremendously ... they can keep bringing and bringing stuff in.”

That issue made headlines after a guard allegedly smuggled a cell phone onto death row and condemned prisoner Richard Lee Tabler used it to place harassing calls to state Senator John Whitmire. The resulting political brouhaha led to a system-wide 10-day shakedown in October 2008, plus the implementation of new procedures for searching all persons entering TDCJ facilities, including guards. [See: PLN, March 2009, p.29].

Nonetheless, more than 200 cell phones were discovered in state prisons in the ...

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 without parole after Duran testified against him in a murder trial.

In March 2002, Dalton, then 25, shot Billy Ray Wayne during an armed home invasion; he was accompanied by Duran and Warren Allen Plank, both then 16. Duran was remorseful and testified against Dalton in a plea bargain that reduced his charge to robbery with a firearm and resulted in a 28-year sentence. Duran tearfully apologized to Wayne’s family, who forgave him. Plank pleaded guilty to robbery with a dangerous weapon and was sentenced to 20 years, which he is serving at the Lawton Correctional Facility.

As antagonistic co-defendants, Dalton and Duran were listed in prison records as “separatees” who were never to be housed together. No official explanation has been given for why Duran was celled with Dalton in violation of prison policy. Department of Corrections spokesman Jerry Massie said an investigation is pending into why the ...

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. 2009) [PLN, March 2009, p.44]. That ruling had vacated Governor Arnold Schwarzenegger’s reversal of Dannenberg’s 2005 grant of parole by the Board of Parole Hearings, and ordered its reinstatement.

Of particular import to all California lifers litigating for their release, this newly published precedent makes an important point of law. The Court of Appeals rejected the Governor’s argument that had relied upon his own stated “feelings” that Dannenberg’s psychological reports were all wrong, and on the District Attorney’s stated “opinion” that Dannenberg didn’t have adequate “insight.” The Court held that “the District Attorney’s ‘opinion[,]’ like the Governor’s belief, is not evidence, and therefore does not constitute ‘some evidence’ supporting the Governor’s decision.”

Dannenberg had questioned the appellate court whether it was fair for the Board, the Governor or the District Attorney to have their opinions treated as “evidence” in the ...

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 in Waseca, Minnesota, his attorney sent him two packages. Both packages contained trial transcripts and other materials that Bonner needed to pursue litigation; however, they were rejected by prison officials. He was not provided notice of the rejections, and only learned of the rejections from his attorney.

Bonner sued Warden T.C. Outlaw, arguing that Outlaw’s failure to notify him that his incoming mail had been rejected was a violation of procedural due process. Outlaw moved to dismiss the suit for failure to state a claim, and invoked a defense of qualified immunity. The district court denied the motion and Outlaw’s claim of qualified immunity, holding that the right at issue – for a prisoner to be notified when incoming correspondence is rejected – was clearly established. Outlaw appealed.

The Eighth Circuit affirmed. In Procunier v. Martinez, 416 U.S. 396 (1974), the Supreme Court held that prisoners have a ...

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 harvests the kidneys. One doctor, using the pseudonym Dr. Lim, says he has participated in six kidney extractions during his twelve years of practice. When it is his turn in the rotation Dr. Lim and his associates arrive at Changi Prison at 5:30 a.m. Executions are carried out exactly at 6 a.m.

Participating doctors are served breakfast in the prison cafeteria while waiting for their subjects to be hanged. Dr. Lim describes the mood during the wait.

“By 6 a.m., the whole place will be very solemn and the gates will be closed. There is minimal movement in the prison complex. I’m not sure if this is out of respect for the person to be hanged.”

Once the execution is carried out the mood quickly changes from solemn to frenetic. Dr Lim explains that organs will become damaged from lack of blood flow if not ...

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 care. [See: PLN, May 2009, p.1]

The charges against the former sheriff included rape, forcible oral sodomy and bribery of a public official. The prisoners said Burgess coerced them into participating in wet T-shirt contests for the entertainment of jail employees, and that as a member of a drug-court panel he bargained with them for sex in exchange for recommending probation rather than prison.

One former prisoner, Joy Leigh Mason, drew a sketch of the inside of Burgess’ home for investigators; the sheriff had taken her there for trysts. Incriminating testimony against also came from a former deputy, Jennifer Tyler. Tyler claimed that Burgess had slipped his hands down her pants and fondled her buttocks while she was being fitted for her uniform.
Following Burgess’ conviction, the jury recommended a cumulative punishment of 94 years in prison. Instead, he received a 79-year sentence in March 2009. Now his former ...

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 housed in CDCR’s 33 adult prisons) is approximately 154,000, this means cutting 44,000 prisoners. The August 4, 2009 order commands CDCR to present to the court, within 45 days, its plan to accomplish this.

The order is the inevitable result of decades of obfuscation by prison authorities who failed to heed numerous previous court rulings. It brings closure to two decades-old prisoner cases dealing with constitutionally inadequate health care and mental health care, Plata v. Schwarzenegger and Coleman v. Schwarzenegger. The primary cause of the deficiencies was unmistakable to the court: overpopulation. California’s adult prisons were designed to handle approximately 80,000 adult men and women, but were lately being operated at an average of 190% of design capacity. The resultant lack of adequate healthcare from this overcrowding resulted in over 60 unnecessary deaths per year, the court found. In addition, the suicide rate due to ...

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 U.S. Constitution, the U.S. Supreme Court decided on May 26, 2009.

Believing that most damages suits filed by prisoners against prison officials were frivolous or vexatious, New York enacted Correction Law § 24. The law, passed in the 1980s, strips New York’s courts of general jurisdiction from hearing damages actions brought by prisoners against prison officials. Instead, all such claims must be presented in New York’s Court of Claims, with the state being substituted as the party defendant.

However, there are several disadvantages to bringing damages suits in the Court of Claims. For example, plaintiffs have no right to a jury trial, no right to attorney’s fees, and may not seek punitive damages or injunctive relief. New York’s courts of general jurisdiction, all of which routinely hear § 1983 actions against non-prison defendants, are not subject to any of these restrictions.

Keith Haywood, a prisoner at ...

$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 illegal immigrants.

The move toward greater DNA collection comes following numerous court decisions upholding the collection of DNA from prisoners and persons on probation, parole, or supervised release.

The FBI’s DNA registry, CODIS, currently has 6.7 million profiles. With the expansion of DNA collection to arrestees and those awaiting trial, some 1.2 million new entries are expected by 2012. This is a 17-fold increase from the 80,000 entries the FBI currently processes annually. An already 500,000 entry backlog is expected to get longer--dramatically.

While law enforcement officials claim inclusion of innocent people in DNA databases will help solve more violent crimes, the Americans Civil Liberties Union (ACLU) and other privacy advocates cite Fourth Amendment concerns.

“What we object to--and what the Constitution prohibits--is the indiscriminate taking of DNA for things like writing an insufficient funds check, shoplifting, [and] drug convictions,” said Michael Risher, a lawyer ...

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, a former police officer, also was indicted on a federal charge for coercing a woman into having sex with him. He reportedly told her she wouldn’t be arrested after being found with drug paraphernalia if she would “assist” him sexually. Keating pleaded guilty to a civil rights violation in that case on January 29, 2009, before the state indictments came down. [See: PLN, May 2009, p.1].

One of the first official acts taken by incoming Montague County Sheriff Paul Cunningham after being sworn into office on January 1, 2009 was to close the jail and send its prisoners to a facility in neighboring Wise County, citing unsafe conditions.

Under Keating’s tenure, prisoners had recliners and big-screen TVs in their cells and used drugs or smoked contraband cigarettes openly while chatting on smuggled cell phones.
Several surveillance cameras and two of the cell doors had been disabled, and ...

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 a much-needed reform of an unfair and unworkable system for restoring voting rights,” said ACLU of Washington Legislative Director Shankar Narayan. “Automatic restoration will help people who have served their time to reconnect with their communities. People who vote are at less risk of reoffending, and that leads to safer communities for us all.”

Under the reform measure, individuals can register to vote once they’re no longer under state-supervised parole or probation. Individuals will still have to repay their debts, but – like anyone else who owes money – they will not be denied the right and duty to vote. It will create a simpler and clearer system and provide a needed bright line to identify those who are eligible to vote. If the registered voter is not eligible to vote, the secretary of state or county auditor a notice at their last known address and at the department correction if ...

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 employers that hire former prisoners. The city council liked the idea so much that it adopted the $5 million program before Nutter even took office. During its first year, however, no company has taken advantage of the tax credit because the city attached too many strings to the program.

For example, companies must agree to be named publicly to qualify for the tax break. Most businesses are already skittish about hiring ex-felons, and having to publicly declare that they hire former prisoners was too much for many employers. “They want to participate, but they don’t want to be named,” said Everett Gillison, the city’s Deputy Mayor for Public Safety.

Another problem was a requirement that companies pay $2,000 worth of tuition support for new ex-prisoner employees. Businesses further have to pay their new hires at least 150% of minimum wage, or about $10 an hour, which in ...

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 was the Supreme Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001). Prior to that ruling, the Court had held “the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all.”

Saucier made that suggestion a mandate, requiring that the determination of whether “the facts alleged show the officer’s conduct violated a constitutional right ... must be the initial inquiry” in every case where a qualified immunity defense is raised. After completing that step, the district court may then turn to “the next, sequential step” of “whether the right was clearly established.”

This case, brought by Afton Callahan, began in a Utah federal district court in a lawsuit that alleged officers from the Central Utah Narcotics Task Force had violated Callahan’s Fourth Amendment rights. In ...

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 properly promulgated regulations, it amounted to an illegal “underground regulation.”

The California Code of Regulations (CCR), Title 1, § 250(a) defines “underground regulation” as “any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation as defined in Section 11342.600 of the Government Code [Administrative Procedure Act (“APA”)], but has not been adopted as a regulation and filed with the Secretary of State....” Thus, when a state agency such as the BPH spontaneously creates spurious “policies,” it may well be acting in excess of its authority under 1 CCR § 250(a). Any person may challenge such a perceived policy by requesting a determination from the Office of Administrative Law.

Donald A. Miller, a consultant in lifer parole law widely known for both his past legal work while in prison and for his highly successful ...

$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 prisoners slain last year included:

• Sean Kelly, 42. Kelly was murdered at the Arizona State Prison Complex-Lewis on June 29, 2008.

• Timothy Lacero, 29. In prison for marijuana violations and car theft, Lacero was assaulted and killed at the Cimarron Unit of the state prison in Tucson on September 4, 2008. His scheduled release date was 2011.

• Duffy Kilrain, 51. Kilrain died six days after being assaulted by several prisoners at the Meadows Unit of the Eyman Complex in Florence on October 20, 2008.

• Earl Ray Lappe, 32, serving a life sentence, was murdered by another prisoner at the Lewis facility only a few weeks after Kilrain was killed.

The homicides of Kelly and Lucero were discovered following a public records request by the Phoenix New Times. A subsequent inquiry revealed that Arizona’s prison system had two murders in 2005, two in 2006 and one in 2007.

Of the ...

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. “Correctional facilities mirror society, many people of many different faiths,” Governor Martin O’Malley said in a statement. “In America, people of every faith are entitled to practice that faith to the fullest extent possible, even in a correctional setting.”

The DPSCS’s decision affects approximately 130 Maryland prisoners who are registered as Jewish or are members of the House of Yahweh or Assembly of Yahweh. They will receive three kosher meals a day.

Maryland’s decision follows a recent trend among prison systems to offer kosher food. The Federal Bureau of Prisons, long a provider of kosher cuisine, has over 5,360 prisoners who receive pre-packaged kosher meals each day. New York’s prison system operates a certified kosher kitchen that prepares food for around 3,000 prisoners statewide. In 2007, the Texas Dept. of Criminal Justice established a kosher kitchen at the Stringfellow Unit, near Houston.
While more ...

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, King grew in volume and intensity as he arrived at the focus of his talk: prisons as an extension of chattel slavery.
His style was narrative and circular; he weaved in and out of events and concepts, blending past with present. The first two-thirds of From the Bottom of the Heap resemble this warm, sprawling narrative, mostly reflections on his childhood as he bounces from rural Louisiana to New Orleans, from grandmother to cops to train-hopping hobos.

King has an aptitude for storytelling – non-linear, conversational, straightforward, insightful; his eventual explanation of the Black Panther Party’s significance and power; and the details of his own legal battles fought from behind prison bars, specifically the appeal that led to his release in 2001 after 29 years of solitary confinement in Angola State Penitentiary, a/k/a “The Last Slave Plantation.”

A powerful aspect of FTBOTH is that King paints his journey ...

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 Ortiz was sexually assaulted on two occasions by Douglas Schultz, a guard at the facility. Ortiz reported the first incident and was taken to see Paula Jordan, a case manager.

Jordan told Ortiz, who was crying and visibly upset, that nobody had the right to touch her. However, she asked Ortiz to keep in mind that it was Schultz’s last day at the prison before he would be transferred to a different facility, that it was Schultz’s “nature” to act that way, and that he was “just an old dirty man.”

Jordan encouraged Ortiz to stay close to her friends, effectively using a “buddy system” to keep Schultz from sexually assaulting her, and said that if anything happened again Ortiz could report it to Jordan when she returned to work in a few days. Ortiz reluctantly decided not to file a formal complaint and to “let it go ...

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 grams of meth); however, that issue was quickly dismissed by the appellate court. The second issue concerned the trial court’s order that Perez repay to the state the sum of $1,250.00, which was the cost of representation by his court-appointed attorney. The Court of Appeals, citing Tex. Code Crim. Proc. Art. 26.05(g), removed the cost of attorney fees from the judgment.

 For years indigent Texas prisoners have been subject to repayment of costs, fees and fines after being convicted. The good news is that in the past no one tried to collect these expenses. Recently there have been attempts by the state to recoup such funds, but until the ruling in Perez’s appeal, no one carefully examined the procedure for repayment of court-related costs.

In 2007, many District Clerk offices across the state began to attach and levy funds in prisoners’ institutional trust accounts ...

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 and management of California prisons annually.

The Fresno County Grand Jury visited PVSP in September 2008. Opened in 1994, PVSP houses minimum, medium, and maximum security prisoners. Designed for 2,200, PVSP currently has 5,191 prisoners, some of which are housed in a gymnasium.

According to the grand jury report, the Coalinga Regional Medical Center, the closest hospital to PVSP, does not have a secure medical wing. As a result, prisoners requiring hospitalization have to be taken to the Bakersfield Community Medical Center, almost an hour away. Construction of a secure medical wing at Coalinga is unlikely due to “budgetary constraints,” the grand jury explained.

The spread of Valley Fever is also a problem at PVSP. Caused by a fungus that lives in certain arid type soils, Valley Fever is spread through spores that are released into the air when soil is disturbed by wind, farming, construction, and other ...

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 home invasion. They allegedly entered the house and pistol-whipped the owner while his wife and children were present. Torres was shot by a neighbor while attempting to flee the scene; the other men involved, Manuel Nathan Moreno, 19, and Alejandro Salazar Romero, Jr., 18, were arrested on first-degree murder charges soon after the incident. Torres had worked for two years as a guard at the, said Louise Grant, a spokeswoman for CCA.

Arkansas: On June 20, 2009, an unnamed parolee was shot and killed by guards running a contraband checkpoint outside a prison in Jefferson County. The man was returning to the prison to pick up his wife, who was visiting a relative. He had dropped her off in the morning before the checkpoint was set up. He fled because he was wanted for failing to report to his parole officer, and was subsequently shot. The exact reason for 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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