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Prisoner Education Guide

Prison Legal News: January, 2010

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Volume 21, Number 1

In this issue:

  1. Prison Health Care, Political Choice and the Accidental Death Penalty in Michigan (p 1)
  2. $950,000 Settlement for California Prisoner Rendered Quadriplegic (p 10)
  3. From the Editor (p 10)
  4. Hadix Litigation Winding Down (p 12)
  5. Shortcomings Cited at Virginia’s Civil Commitment Facility (p 12)
  6. BOP Settles FTCA Abuse/Religious Discrimination Suit for $48,000 (p 13)
  7. U.S. DOJ Calls Houston Jail Unconstitutional, Prisoner Death Rate Alarming (p 14)
  8. $75,000 Settlement in Heart Attack Death of Missouri Jail Prisoner (p 15)
  9. Don’t Build it Here Revisited (or “There is no Economic Salvation Through Incarceration”) - Prisons Do Not Create Jobs (p 16)
  10. $125,000 Settlement in Suicide Death Of New York Jail Prisoner (p 18)
  11. Pennsylvania Prisoner Gets $12,500 in Retaliation Suit After Remittitur (p 19)
  12. Settlement in Class-Action Suit Against CCA Modified After PLN Unseals Court Documents (p 20)
  13. Colorado Detainee Tasered During Seizure, Paid $116,731.73 and $83,268.27 in Fees (p 20)
  14. Prison Video Visitation Expands into For-Profit Market (p 22)
  15. Sex with Former Jail Employee Lands Texas Sex Offender Back in Prison (p 23)
  16. Soft Porn, Bribery and Jailed Millionaire Make for a Dangerous Mix (p 24)
  17. California Communities Made Less Safe as Sex Offender Housing Restrictions More Strictly Enforced (p 24)
  18. Texas Supreme Court Rules in Favor of Ex-Prisoner’s Religious Halfway House (p 26)
  19. Former High-Ranking CIA Official Imprisoned for Corruption (p 26)
  20. $2.4 Million Settlement in Children’s Death Caused by California Jail Guard’s Driving (p 27)
  21. $1.95 Million Awarded to New Hampshire Guards Falsely Accused of Assaulting Prisoner (p 28)
  22. Guantanamo’s Youngest Prisoner Can’t Be Tried, Won’t be Released (p 28)
  23. Education for Persons in Detention—A Human Right (p 29)
  24. BOP Guard Found Guilty in Prisoner’s Death, Sentenced to Life (p 30)
  25. Four Pennsylvania Jail Guards Fired, Two Resign Over Prisoner Beating (p 30)
  26. South Dakota: Prisoner May Enforce Third-Party Kosher Meal Obligation (p 32)
  27. Federal Jury Awards $5 Million for Wrongful Conviction Involving Houston Crime Lab (p 32)
  28. Seventh Circuit Upholds $9,063,000 Award to Illinois Ex-Prisoner Exonerated by DNA (p 34)
  29. Iowa Supreme Court: Retroactive Good Conduct Time Denial is Unconstitutional, Depending on Date of Conviction (p 34)
  30. Seventh Circuit Reverses Dismissal of 8th Amendment and FTCA Medical Claims; Case Settles on Remand for $20,000 (p 36)
  31. New York Politicians Want to Re-Evaluate Civil Confinement Release Law (p 36)
  32. New Hampshire City Ordinance Restricting Sex Offender Residency Found Unconstitutional (p 38)
  33. PLN Sues Texas Dept. of Criminal Justice Over Censorship; Court Upholds Rights of Book Distributors (p 38)
  34. Oneida County, NY Jail Suicide Litigation Settled for $225,000 (p 39)
  35. Los Angeles County Jail Agrees To Pay $900,000 to Settle Lawsuit over Inadequate Medical Care (p 40)
  36. DHS Ordered to Respond to Petition Seeking National Stan-dards at Immigration Detention Facilities (p 40)
  37. $1.31 Million Awarded to California Man Wrongly Jailed on Murder Charge (p 41)
  38. $1.31 Million Award to Wrongfully Jailed California Man (p 41)
  39. Discovery Disputes in Suit Over Pennsylvania Jail MRSA Deaths (p 42)
  40. China Taking Steps to Reduce Number of Executions (p 42)
  41. Federal Court Awards $1.47 Million in Attorney Fees and Costs against Sheriff Arpaio (p 43)
  42. Massachusetts Court of Appeals Reinstates Prisoner’s Dental Negligence Suit (p 44)
  43. Starting Out: The Complete Reentry Book, by William Foster and Carl Horn, 446 pp, $22.95 (p 44)
  44. BOP Fails To Meet Drug Treatment Goals; Lack of Funding Blamed (p 45)
  45. Georgia Prisoners Must Use Court Promulgated Form to Initiate a Court Action (p 45)
  46. District Court May Order Martinez Report, Ninth Circuit Holds (p 46)
  47. Washington Supreme Court Upholds Denial of Parole for Sex Offender Who Refuses to Admit Guilt (p 46)
  48. Washington Pretrial Release UAs Invalidated (p 47)
  49. Second Circuit Establishes Anonymous Pleading Standards (p 48)
  50. Fifth Circuit Reinstates Texas Prisoner’s Failure-to-Protect Suit (p 48)
  51. Reversal of Summary Judgment to BOP Doctor Accused of Deliberate Indifference (p 49)
  52. News in Brief: (p 50)

Prison Health Care, Political Choice and the Accidental Death Penalty in Michigan

by Elizabeth Alexander1

In Hadix v. Caruso, I represent a class of prisoners in a decades-long case challenging conditions of confinement, including medical care, at various Michigan prison facilities.2 Since August 2006 I have been haunted by the death of one of those prisoners, because in retrospect his death appears to be the inevitable by-product of a prison system swollen beyond any historical precedents or its ability to manage such a huge number of people safely. Prisons are in fact extraordinarily difficult to operate safely and humanely, and the United States will continue to fail to do so absent a fundamental change in criminal justice policy. This article seeks to trace some connections between a dysfunctional criminal justice policy and the death of one man.

Prison systems like Michigan’s have been allowed to operate unsafe prisons because the Eighth Amendment fails to provide an effective form of oversight, and no other form of serious oversight exists in the United States. In a series of decisions, the Supreme Court has preserved the form of Eighth Amendment challenges to conditions of confinement but little of the substance, by allowing severely overcrowded prisons,3 suggesting that considerations of cost can defeat ...

$950,000 Settlement for California Prisoner Rendered Quadriplegic

In February 2008, the California Department of Corrections (DOC) settled a lawsuit by a prisoner who had been allegedly rendered quadriplegic by medical mistreatment after he was knocked unconscious in a fight.

According to the complaint, Kenneth Holcomb, a DOC prisoner, was attacked by other prisoners, severely injured and rendered ...

From the Editor

The cover story in this month’s issue is written by Elizabeth Alexander. Elizabeth is the former director of the ACLU’s National Prison Project and one of the top prisoner rights litigators in the United States. I first became aware of Elizabeth in the late 1980s, I had been in prison for a few years and was involved in my first prison conditions case, enforcing an overcrowding consent decree at the Washington State Reformatory in Monroe, Washington. I was a subscriber to the NPP Journal and an avid student on everything I could read and learn about prisoner rights. I corresponded with Elizabeth off and on over the next decade and a half and finally met her and the other wonderful attorneys at the NPP after my release from prison in 2003.

The March, 2008, issue of PLN had an extensive interview with Elizabeth and details her legal career where she has exclusively represented prisoners since 1981. As her article amply illustrates, she brings a compassion and legal acumen to the field that is both noteworthy and admirable. Over the course of almost three decades of prisoner rights litigation Elizabeth has helped ensure better standards of living and decency ...

Hadix Litigation Winding Down

by David M. Reutter

After nearly thirty years, a class-action lawsuit challenging conditions of confinement at the State Prison of Southern Michigan-Center Complex is on the cusp of ending. The end is in sight not because prison officials have fully complied with a court-monitored consent decree, but because they closed the prisons under the court’s jurisdiction and scattered the prisoner class members among other facilities. [See: PLN, December 2007, p.26].

This class-action suit, known as the Hadix litigation, was originally filed in 1980 by twenty-three prisoners who have all since died. The 1985 consent decree included issues related to sanitation, safety, overcrowding and security, which have been resolved and concluded.

What remained under court supervision were provisions concerning medical care. As PLN has previously reported, the court re-opened claims regarding mental health care through a preliminary injunction after prisoner Timothy Souders died of dehydration in August 2006; his death was exacerbated by psychotropic medications and an overheated segregation cell.

The district court issued an order that required development of staffing plans to ensure timely routine and emergent psychiatric and psychological care, the provision of daily psychologist and psychiatrist rounds in segregation units, and coordination of mental health and ...

Shortcomings Cited at Virginia’s Civil Commitment Facility

by Matt Clarke

The almost two-year-old, $62-million maximum-security Virginia Center for Behavioral Rehabilitation (VCBR) is still having start-up problems. Located in rural Nottoway County on 28 acres and opened in February 2008, VCBR is unable to retain staff and offers little in the way of rehabilitative treatment. The facility, which was expanded to 300 beds in September 2008, houses sex offenders who have been civilly committed after completing their prison sentences.

The Inspector General for the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services found that VCBR lost around half its staff annually in 2005, 2006, 2007 and 2008. As of February 2009 the facility had 190 employees and 59 staff openings – a 24% vacancy rate.

In a March 2009 report the Inspector General said “active treatment” at VCBR was “much lower than desirable for an effective treatment program,” with residents receiving an average of just 6.6 hours of treatment each week. No vocational programs or jobs were available at the facility. The report noted that only two residents had been conditionally released from VCBR since 2004, when the facility was at a temporary location in Petersburg. A survey found that 64% of staff did not ...

BOP Settles FTCA Abuse/Religious Discrimination Suit for $48,000

O
n August 12, 2009, the Federal Bureau of Prisons (BOP) agreed to settle a lawsuit by a Muslim former prisoner who alleged that he was tortured and beaten after complaining to investigators about his Quar’an and Kufi being desecrated.

From April 5, 1996, until October 4, 2005, Hakeem ...

U.S. DOJ Calls Houston Jail Unconstitutional, Prisoner Death Rate Alarming

As a follow-up to PLN’s October 2009 cover story, this article examines in greater detail findings by the U.S. Department of Justice (DOJ) related to conditions at the Harris County jail in Houston, Texas.

From 2001 through June 2009, 142 jail prisoners died in Harris County. The DOJ twice performed on-site inspections of the county’s jail system, and concluded in a June 4, 2009 report “that certain conditions at the Jail violate the constitutional rights of detainees.” The DOJ went on to say that “the number of inmates’ deaths related to inadequate medical care ... is alarming.”

Citing its oversight authority under the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997, DOJ inspectors visited all four jails in Harris County before giving the jail system failing marks in “(1) medical care; (2) mental health care; (3) protection from physical harm; and (4) protection from life safety hazards.”

Houston’s main jail houses nearly 11,000 prisoners, not including satellite facilities. In 2007, over 130,000 detainees cycled through the county’s jail system. The DOJ noted major deficiencies in medical care provided to this revolving population of prisoners – especially those with serious mental health ...

$75,000 Settlement in Heart Attack Death of Missouri Jail Prisoner

On June 3, 2009, Greene County, Missouri agreed to pay half of a $75,000 settlement in a wrongful death action brought by the family of a prisoner who died while at the Greene County Jail.

In July 2005, Winston Eugene Holt, a federal prisoner being held on charges at ...

Don’t Build it Here Revisited (or “There is no Economic Salvation Through Incarceration”) - Prisons Do Not Create Jobs

by Clayton Mosher and Gregory Hooks

Despite widespread popular beliefs that prison construction offers substantial economic benefits to local areas, empirical research has suggested otherwise. In an article published in Social Science Quarterly in 2004, Hooks et al. collected data on all existing and new prisons constructed in the United States since 1960, and examined the impact of prisons on employment growth in the approximately 3,100 counties in the contiguous United States. Their analyses compared metropolitan with nonmetropolitan counties with respect to income per capita, total earnings, and total employment growth and statistically controlled for other potential influences on employment growth (including population size, economic infrastructure, and the educational level of the workforce, among others). Hooks et al. did not find a significant relationship between the presence of prisons and employment growth in metropolitan counties, suggesting that any impact of prisons is probably drowned out in these larger, diverse urban economies.

Additional analyses compared nonmetropolitan counties experiencing slow employment growth during the previous decade with those experiencing more rapid growth. These analyses showed that among the faster-growing counties, there was no evidence that prisons made a substantial contribution to change in total employment. Among the slower-growing counties, prisons actually ...

$125,000 Settlement in Suicide Death Of New York Jail Prisoner

On April 29, 2009, Onondaga County, New York agreed to settle a lawsuit filed by the family of a prisoner who committed suicide at the Onondaga County Justice Center (OCJC) for $125,000.

On October 7, 2006, William O’Neil hung himself from a bed sheet tied to his cell ...

Pennsylvania Prisoner Gets $12,500 in Retaliation Suit After Remittitur

by John E. Dannenberg

A pro se Pennsylvania state prisoner won a jury verdict of $5,000 in compensatory damages plus $100,000 in punitive damages against a prison official who openly and repeatedly retaliated against him after he filed grievances and a lawsuit concerning mistreatment by guards. The verdict ...

Settlement in Class-Action Suit Against CCA Modified After PLN Unseals Court Documents

Last October, PLN reported that Corrections Corporation of America (CCA), the nation’s largest private prison firm, had settled a class action lawsuit in U.S. District Court in Kansas that raised claims under the Fair Labor Standards Act (FLSA) on behalf of current and former CCA employees. The settlement agreement, which included a maximum payout of $7 million, was confidential until PLN filed a successful motion to intervene that unsealed the settlement and related court documents. [See: PLN, Oct. 2009, p.31].

After the class-action settlement was made public, some CCA employees who had been excluded from the agreement raised complaints. Under the original settlement, potential class members were CCA employees who worked in almost thirty specified job positions from Dec. 9, 2005 through February 12, 2009. Those job positions included correctional officer, correctional counselor, case manager, safety officer and a number of other job titles. Absent from the list was “detention officer,” a job category used by CCA primarily at immigration detention facilities, such as the Elizabeth Detention Center in New Jersey.

Current and former CCA detention officers who tried to join the class-action settlement were rejected, even though they performed the same job duties as correctional officers ...

Colorado Detainee Tasered During Seizure, Paid $116,731.73 and $83,268.27 in Fees

A Colorado detainee settled his medical neglect and excessive force suit within four months of filing for $116,731.73 in damages and $83,268.27 in attorney’s fees.

On July 26, 2006, Michael R. Martin was booked into Colorado’s Adams County Detention Facility (ACDF). He was on ...

Prison Video Visitation Expands into For-Profit Market

by David M. Reutter

Businesses seeking to profit from the exponential expansion of our nation’s prison population are now turning to visitation. Florida-based JPay is implementing its “video-conference visitation” in Indiana’s prison system, while other companies, such as einmate.com, are developing similar prison-based video visitation programs.

The use of technology for prison visits has its benefits. For prisoners, the latest generation of video conferencing puts them right into their family or friends’ homes, allowing them to see things they could never view in the sterile, drab atmosphere of a prison visiting room.

“I feel like I’m at home, kind of,” said Indiana prisoner Candace McCann. “It’s good to see that kind of stuff.” Video visitation allows McCann to see her seven-year-old daughter, Kashmir, every Sunday morning. In addition to saving her family a three-hour drive and the costs associated with such lengthy trips, McCann is able to watch her daughter model new clothes and show off her toys through live streaming video.

Prison officials prefer video visitation due to its security features. Video visits allow monitoring in real-time or via re-cording while eliminating the possibility of contraband entering the facility. The video visitation service being ...

Sex with Former Jail Employee Lands Texas Sex Offender Back in Prison

On February 27, 2009, three days after his release from prison, Wydell J. Vaughn, 28, found himself back behind bars for having a romantic relationship with a former jail employee.

Vaughn was convicted in 2002 on two second-degree felony sex charges for having sex with underage girls. While incarcerated at the Sheboygan County Detention Center in 2007, he struck up a relationship with Tammy Green, 37, a kitchen worker employed by Aramark, the jail’s food service provider.

The two immediately got together after Vaughn was released from jail in August 2007. Their relationship was discovered when Vaughn called Green’s supervisor at the jail complaining that her marriage was interfering with their romance.

Green was fired and Vaughn was returned to prison in November 2007 because the relationship violated the terms of his probation, plus he had had unapproved contact with minors.

On February 24, 2009, he was released to a halfway house and repeatedly warned not to have any contact with Green. According to the terms of Vaughn’s probation, because he was a sex offender all of his relationships had to be approved by his probation officer.

Heedless of those conditions, Green visited Vaughn at the halfway ...

Soft Porn, Bribery and Jailed Millionaire Make for a Dangerous Mix

In April 2007, Joe Francis, 36, the multi-millionaire founder of the popular soft porn Girls Gone Wild videos – which consist of young women exposing themselves at parties, clubs and spring break – was charged with federal tax evasion for claiming about $20 million in fraudulent deductions on his income tax returns and for keeping money in offshore accounts.

In an unrelated prosecution, Francis was indicted in Panama City, Florida on more than 70 counts of prostitution, conspiracy, drug offenses, racketeering and using minors in a sexual performance (the latter charges resulted when Girls Gone Wild filmed several 17-year-olds who reportedly lied about their age). Almost all of the Florida charges were eventually dismissed. Francis claimed he was prosecuted in retaliation for a successful First Amendment suit he had filed against city officials after they tried to stop him from filming a Girls Gone Wild video during spring break in 2003.

While held at the Bay County jail in Panama City after being incarcerated on a federal criminal contempt charge in a lawsuit brought by underage girls who had appeared in Girls Gone Wild footage, Francis was accused of receiving contraband from a visitor, Scott Barbour, the CEO of Mantra Films, Inc ...

California Communities Made Less Safe as Sex Offender Housing Restrictions More Strictly Enforced

A December 2008 report by the California Sex Offender Management Board (CASOMB) has found that increased enforcement of laws adopted to protect communities from registered sex offenders has had the unintended effect of making those communities less safe from those offenders.

Created in 2006, CASOMB was charged with providing state legislators and other policy makers with an assessment of sex offender management practices, and making recommendations consistent with its vision of decreasing sexual victimization and increasing community safety. In its report, Homelessness among Registered Sex Offenders in California: The Numbers, The Risks and The Response, CASOMB examines the practical effect of the voter-approved passage of Prop. 83 (in November 2006) and subsequently enacted local ordinances restricting the residency of sex offenders. It found that implementation of those residency restrictions had led to a significant increase in the number of sex offenders registering as transient -- most dramatically among Parolees, the only population of sex offenders where the residency restrictions of Prop. 83 have been consistently enforced.

CASOMB’s report observes, moreover, that the rise in homelessness among sex offenders may be attributed to causes other than the various residency restrictions imposed by state and local laws. Specifically, it notes that California ...

Texas Supreme Court Rules in Favor of Ex-Prisoner’s Religious Halfway House

by Matt Clarke

On June 19, 2009, the Texas Supreme Court held that a city zoning ordinance which effectively banned a religious halfway house in the City of Sinton violated the Texas Religious Freedom Restoration Act (TRFRA), § 110.003(a)-(b), Texas Civil Practice and Remedies Code.

Pastor Richard Wayne Barr, a former prisoner, owned two houses across the street from the Grace Christian Fellow-ship Church. In 1998, with the church’s support, he founded and directed Philemon Restoration Homes – a non-profit organization that operated the houses as faith-based halfway houses for around fifteen newly-released prisoners who had not been convicted of violent or sex offenses. Residents were required to sign a statement of their faith in the tenets of Christianity, and to abide by strict house rules. The Texas Board of Pardons and Paroles (BPP) approved the halfway houses for parolees even though they received no state funding.

In 1999, the City of Sinton passed zoning ordinance 1999-02, which was aimed specifically at “correctional or rehabilitation” facilities. Under the guise of restricting halfway houses from being located within 1,000 feet of a park, school, church or residential area, the ordinance effectively banned them from the entire city. Although ...

Former High-Ranking CIA Official Imprisoned for Corruption

by Matt Clarke

When the CIA wanted to build secret prisons outside the United States where terrorism suspects could be tortured with impunity, it turned to Kyle “Dusty” Foggo, who ran the agency’s main European supply base in Frankfurt, Germany. That was in March 2003, and Foggo already had earned a reputation as the “go-to” guy when supplies were needed for the CIA’s rapidly-growing operations in Iraq and Afghanistan.

Foggo immediately agreed to handle the project. He supervised the construction of three prisons, which were identical in design to disorient detainees as to their location and included such torture-friendly features as plywood-covered walls to cushion the impact when prisoners were slammed against them. The six-bed facilities were built at a remote Moroccan location; in Bucharest, Romania; and near an undisclosed former East bloc city. “It was too sensitive to be handled by [CIA] headquarters,” said Foggo. “I was proud to help my nation.”

Foggo also was apparently proud to help his lifelong friend, San Diego military contractor Brent R. Wilkes, make a profit off the deal. Wilkes’ business received a CIA logistics contract to supply the prisons with items such as plumbing, stereos, night vision goggles, bedding, toilets ...

$2.4 Million Settlement in Children’s Death Caused by California Jail Guard’s Driving

A $2.4 million settlement has been reached in a lawsuit involving three children being killed in an automobile accident caused by a California jail guard on the way to work.

As Tulare County guard Joseph D. Armstrong was on the way to work at the county’s jail, he ...

$1.95 Million Awarded to New Hampshire Guards Falsely Accused of Assaulting Prisoner

A New Hampshire jury awarded two former prison guards nearly $2 million upon finding that two of their co-workers had lied about a confrontation with a prisoner, which resulted in their firing.

After guards Shawn Stone and Todd Conner accused fellow prison guards Timothy Hallam and Joseph Laramie of participating ...

Guantanamo’s Youngest Prisoner Can’t Be Tried, Won’t be Released

by Matt Clarke

By July 2002, Omar Khadr, a skinny l5-year-old boy born in Toronto, Canada, had become a radical Muslim militant. He received his first training in an Al-Qaeda camp at the tender age of twelve. To Khadr, a kid who loves Die Hard movies, Nintendo computer games and junk food, he was just following in the footsteps of his older brother Amed, who had been injured by a land mine in 1992 while fighting the Soviets in Afghanistan on behalf of the CIA.

Khadr and several other fighters became involved in a July 2002 firefight with U.S. forces in Afghanistan. His companions died in the battle. In the last moments of the firefight a hand grenade exploded, killing U.S. Army medic Christopher James Speer and wounding Layne Morris, a U.S. soldier.

The severely-wounded Khadr, who was accused of tossing the grenade, was captured, taken to Bagram Air Force Base north of Kabul and eventually transferred to the U.S. military prison at Guantanamo Bay, Cuba. Khadr has had the dubious distinction of being Gitmo’s youngest prisoner since arriving at the facility in October 2002. He was formally charged with Speer’s death in April ...

Education for Persons in Detention—A Human Right

The positive correlation between increased education and lowered recidivism rates is a long-established fact. Even so, governments worldwide are not always willing or even able to insure that the men, women and children housed in various detention facilities are given access to sufficient educational and vocational opportunities. Many factors can contribute to this problem, not all of which will be solved with increased funding. In some instances, the primary obstacles faced are environmental, institutional, cultural or individual.

In a recently submitted report prepared by the Special Rapporteur to the United Nations’ Human Rights Council, the issue of the right to education of persons in detention was examined in depth for the purpose of identifying and initiating possible remedies for solving the shortcomings that currently exist in the area of education. The Special Rapporteur observed that a basic problem faced in many detention facilities worldwide is that education is often viewed as a privilege and not as an imperative in its own right. The huge positive impact an education can have on a person’s ability to become self-sufficient upon release is oftentimes marginalized or minimized in an environment “inherently hostile to its liberating potential.” And the problems are often compounded ...

BOP Guard Found Guilty in Prisoner’s Death, Sentenced to Life

On July 30, 2009, a federal jury found a former prison guard at the Federal Correctional Complex (FCC) in Coleman, Florida guilty of civil rights violations in connection with a prisoner’s death. She later received a life sentence.

Richard Delano had been in and out of prison since his early twenties. At 39, he found himself in the Special Housing Unit (SHU), a “prison within a prison,” at FCC Coleman. He had been transferred to Coleman from FCC Beaumont and was being kept in the SHU for his own protection.

Delano had developed a reputation for snitching – he liked to tell on guards who broke the rules. Naturally, most prison employees disliked him. Coleman guard Erin Sharma was no exception.

Sharma and her husband, Rajesh Sharma, had worked for the Bureau of Prisons (BOP) since 2000, and transferred to FCC Coleman in 2001. Sharma was assigned to the SHU, which she didn’t mind. She did mind Delano, though.

In February 2005, Delano grabbed Sharma’s arm through a food port in his cell door, bruising her arm. She already didn’t like Delano because he was a snitch. The cell door incident just made things worse.

Rather than ...

Four Pennsylvania Jail Guards Fired, Two Resign Over Prisoner Beating

by David M. Reutter

Four Pennsylvania guards have been fired for beating a prisoner at the Westmoreland County Prison (WCP). The June 8, 2009 incident revealed a cover-up orchestrated by prison guards and their union leader.

When WCP prisoner James Edwards, 27, and other prisoners in his cellblock were ordered to return to their cells be-cause some were smoking, Edwards complained to part-time guard Christopher Pickard that he should not be punished. Pickard notified a sergeant, who went to Edwards’ cell with two other officers.

They took Edwards, who was in jail on a parole violation, to a nearby counselor’s office out of the view of video cameras. A guard then grabbed Edwards by the neck, slammed him into a filing cabinet, pushed his head against the wall and said, “I’ll kill you right now.”

As Edwards slid to the floor, the guard struck him in the mid-section with his knee and punched him in the head. Upon trying to stand, the guard punched him again.

After the incident, Edwards was taken to be examined by a nurse. He “complained of injuries he stated he received from a beating,” according to medical notes. A subsequent report said Edwards ...

South Dakota: Prisoner May Enforce Third-Party Kosher Meal Obligation

The South Dakota Supreme Court has ruled that a state prisoner can bring a third-party beneficiary claim to enforce a settlement agreement between the South Dakota Department of Corrections (DOC) and another prisoner.

Charles E. Sisney, a DOC prisoner, filed a pro se complaint in state circuit court seeking to enforce a settlement agreement between the DOC and another prisoner, Philip Heftel. Heftel had filed a civil rights suit against the DOC in 1998, alleging that he was deprived of his First Amendment right to free exercise of his Jewish religion because the DOC refused to provide him with kosher meals. Heftel and the DOC settled, with the DOC agreeing “to provide a kosher diet to all Jewish inmates who request it,” consisting of “prepackaged meals which are certified kosher for noon and evening meals.”

In February 2007, the prison’s food service provider stopped serving prepackaged kosher meals and began serving a new kosher diet that included beans and rice prepared in the prison kitchen. Meals not prepared in a kosher kitchen are not considered kosher regardless of the food used for the meal. Sisney filed a grievance alleging that the new kosher diet violated both his religious beliefs ...

Federal Jury Awards $5 Million for Wrongful Conviction Involving Houston Crime Lab

by Matt Clarke

A Texas federal jury awarded $5 million to a former prisoner who was wrongly convicted of kidnapping and sexual assault based in part on falsified evidence generated by the Houston Police Department’s Crime Lab. In rendering its verdict, the jurors found the City of Houston “had ...

Seventh Circuit Upholds $9,063,000 Award to Illinois Ex-Prisoner Exonerated by DNA

On December 30, 2008, the U.S. Court of Appeals for the Seventh Circuit upheld a $9,063,000 jury award to a former prisoner, later exonerated by DNA evidence, whose criminal trial was rendered unfair by a police detective who investigated his case.

In September 1989, Alejandro Dominguez, then ...

Iowa Supreme Court: Retroactive Good Conduct Time Denial is Unconstitutional, Depending on Date of Conviction

by Matt Clarke

On January 23, 2009, the Iowa Supreme Court held that state law amendments enacted in 2001 and 2005, which required that certain prisoners must participate in rehabilitative programs to be awarded good conduct time credits, violated the ex post facto clauses of the U.S. and Iowa Constitutions when applied to prisoners whose crimes occurred prior to the enactment of those amendments. In a separate ruling, the Court determined that prisoners who committed crimes after the 2001 amendment but before the 2005 amendment could not show an ex post facto violation.

Denny Propp, then an Iowa state prisoner, brought a petition for post-conviction relief in state district court alleging that the application of Iowa Code § 903A.2, as amended in 2001 and 2005, was an unconstitutional ex post facto violation. He claimed that the amended statute extended his term of imprisonment by causing him to lose sentence-reducing good time credits he would have been eligible to receive under the statute in effect at the time his crime was commit-ted.

Propp was convicted of a sex offense. At the time he committed his crime, § 903A.2 provided that he and other prisoners with category “A” sentences were eligible ...

Seventh Circuit Reverses Dismissal of 8th Amendment and FTCA Medical Claims; Case Settles on Remand for $20,000

The U.S. Court of Appeals for the Seventh Circuit has reversed, for the second time, a grant of summary judgment to two Bureau of Prisons (BOP) medical employees and the United States in a Bivens and Federal Tort Claims Act (FTCA) suit.

Diego Gil, a prisoner at the Federal ...

New York Politicians Want to Re-Evaluate Civil Confinement Release Law

by Matt Clarke

Two years ago New York enacted the Sex Offender Management and Treatment Act, which lets a jury release a civilly-committed sex offender from confinement if the state fails to provide sufficient evidence of a mental abnormality. Sex offenders who are released by a jury are placed under “civil management,” which requires “strict and intensive supervision.” Since the law took effect, 65 offenders have been placed under civil management. Of those, 29 have violated the conditions of their release; 10 were charged with sex-related offenses or violations, 5 of which involved no physical contact (e.g., possession of pornography).

Recent incidents involving two sex offenders under civil management have resulted in calls to re-evaluate the provision of the law that allows a jury to release offenders from civil confinement. The first sex offender released by a jury, Douglas Junco, was arrested in 2008 and charged with kidnapping and raping a woman in Georgia. Another offender, Ken-Tweal Catts, was released from civil confinement by a jury in September 2008. He was arrested for rape on May 27, 2009, but snatched a pistol from a Dutchess County detective, shot the detective in the head and then fatally shot himself following ...

New Hampshire City Ordinance Restricting Sex Offender Residency Found Unconstitutional

On July 30, 2009, a New Hampshire state district court held that a city ordinance restricting where sex offenders could live violated the Equal Protection Clause of the New Hampshire Constitution.

Richard Jennings, a resident of Dover, was charged with violating city ordinance 131-20, which prohibited a person who was required to register for life as a sex offender from living within 2,500 feet of the property line of a school or day care center. Violators were subject to a fine up to $1,000.

In Dover District Court, Jennings argued that the ordinance violated his equal protection rights under the New Hamp-shire Constitution. He presented an expert witness, Carolyn Lucet, who treated both sex offenders and children who were victims of sex crimes. Lucet testified that numerous studies of ordinances which limit where sex offenders can live have shown that such restrictions are not effective in preventing sex offenders from re-offending. In fact, they may actually in-crease the likelihood of recidivism by cutting sex offenders off from friends and relatives who are willing to support them. Lucet also noted that 93-95% of sexual assaults against children are committed by someone the child knows, not a stranger. Thus, “the ...

PLN Sues Texas Dept. of Criminal Justice Over Censorship; Court Upholds Rights of Book Distributors

On November 4, 2009, Prison Legal News filed suit in U.S. District Court for the Southern District of Texas against Brad Livingston, Executive Director of the Texas Dept. of Criminal Justice (TDCJ), and other TDCJ officials.

According to PLN’s complaint, the TDCJ has unlawfully censored books sent to Texas state prisoners. One of those books was Women Behind Bars: The Crisis of Women in the U.S. Prison System, by Silja J.A. Talvi. Ms. Talvi is an accomplished journalist and award-winning author, and has served as a PLN board member. Her book on incarcerated women has been described by one reviewer as a “comprehensive and passionately argued indictment of the inhumane treatment of female prisoners ... the sort of shocking expose too seldom seen in these media days of so much celebrity fluff.” Two other Texas prisoners also were not allowed to receive Women Behind Bars after placing book orders with PLN.

PLN contends that the censorship of Women Behind Bars, which was upheld by senior prison officials, was improper. Further, the TDCJ did not notify PLN of the censorship, which would have provided PLN an opportunity to respond and contest that decision.

TDCJ staff also censored another ...

Oneida County, NY Jail Suicide Litigation Settled for $225,000

In May 2008 the County of Oneida agreed to pay $100,000, and CNY Services agreed to pay $125,000, in settlement of a wrongful death claim brought by the parents of a 17-year-old detainee who committed suicide in the Oneida County Jail one month after his detention.

Cail Williamson ...

Los Angeles County Jail Agrees To Pay $900,000 to Settle Lawsuit over Inadequate Medical Care

Los Angeles County has agreed to pay $900,000 to a prisoner who lost his foot after staff at the Los Angeles County Sheriff’s Department (LASD) in California delayed processing a culture test that later showed the prisoner had a serious infection.

Franklin Silva was arrested on March 7 ...

DHS Ordered to Respond to Petition Seeking National Stan-dards at Immigration Detention Facilities

Immigration rights advocates won a short-lived victory in June 2009, when a U.S. District Court in New York ordered the Department of Homeland Security (DHS) to respond to a petition for rulemaking that requested the adoption of uniform national standards for conditions at immigration detention facilities.

The petition, drafted ...

$1.31 Million Awarded to California Man Wrongly Jailed on Murder Charge

On February 25, 2009, a California federal jury awarded $1,310,000 to a man who spent eight months in jail facing a murder charge that was eventually dismissed.

Shortly after Christopher Shahnazari was shot in Glendale, California on November 1, 2005, he examined a photo-graphic lineup and said Edmond ...

$1.31 Million Award to Wrongfully Jailed California Man

A California federal jury awarded $1.31 million to a man who spent eight months in jail for being unlawfully arrested on a home invasion murder he did not commit.

Within eight hours of the November 1, 2005 crime, Edmond Ovasapyan was arrested. His arrest was made despite the surviving ...

Discovery Disputes in Suit Over Pennsylvania Jail MRSA Deaths

by Matt Clarke

A Pennsylvania federal court has ordered medical personnel to answer deposition questions in a case involving the deaths of two prisoners due to MRSA at the Allegheny County jail. The court also appointed a special master and ordered the parties to pay the master’s fees as a result of protracted discovery disputes.

Ella Mae Howard, administratrix of the estate of her daughter, Valeria Whetsall, filed a civil rights action under 42 U.S.C. §§ 1983, 1985 and 1986, plus wrongful death and negligence claims, after Whetsall and Amy Lynnn Sartori, who were incarcerated at the Allegheny County jail, died due to Methicillin-resistant Staphylococcus aureus (MRSA) infections. Howard also represents the interests of Sartori’s heirs, Edward and Dianne Sartori.

The plaintiffs sought to depose Bruce Dixon, chairman of Allegheny Correctional Health Services (ACHS); ACHS supervisor Michael Patterson, Sr.; and Lucille Aiken, the physician who treated Sartori at the jail. Defense counsel objected to many of the deposition questions and the plaintiffs filed a motion to compel responses.

At his deposition, Dixon was asked whether, prior to Whetsall and Sartori’s deaths, he had asked the Allegheny County legal department if he could release information about infectious ...

China Taking Steps to Reduce Number of Executions

In July, 2009, Zhang Jun, vice president of China’s Supreme People’s Court, said that China was taking steps to reduce the number of executions.

Despite the televising of many executions as a form of public intimidation, the absolute number of executions in China remains a state secret. Nonetheless, international human rights groups estimate that between 1,700 and 5,000 Chinese prisoners were executed in 2008. Death penalty crimes include corruption, espionage and drug trafficking.

Possibly in response to the international outcry over the large number of executions, two years ago the Supreme Court was given the right to review death penalty cases. It overturned about 10% of them in 2008.

According to Zhang, new legislation will soon be enacted to cap the number of death penalty sentences and further restrict the use of capital punishment. This will include an increase in the use of the “death penalty with reprieve” sentences which allows initial commutation to life in prison and possible later commutation to 20 years or even less in consideration of good behavior. According to the government, the death penalty will now only be used for heinous crimes with “grave social consequences.”

“Judicial departments should use the ...

Federal Court Awards $1.47 Million in Attorney Fees and Costs against Sheriff Arpaio

Last May, PLN reported that a U.S. District Court in Arizona had found that jails in Maricopa County, managed by Sheriff Joe Arpaio, continued to violate the civil rights of pretrial detainees. That ruling came in a long-standing class-action lawsuit that alleged inadequate medical, mental health and dental care ...

Massachusetts Court of Appeals Reinstates Prisoner’s Dental Negligence Suit

Andrew W. Kilburn, a Massachusetts state prisoner, filed suit in state superior court alleging negligence and violation of the Eighth Amendment by Department of Correction (DOC) officials and medical personnel employed by Correctional Medical Services (CMS) and University of Massachusetts Correctional Health (UMCH). Kilburn claimed that the defendants had failed to properly treat a small cavity for over three years until the tooth had to be pulled. He also challenged a DOC policy that required him to use “the world’s smallest toothbrush,” which would not reach his back teeth. A series of three judges issued orders which ultimately resulted in a summary judgment ruling in favor of the defendants. Kilburn appealed.

The Court of Appeals held that the toothbrush issue was moot because the DOC had since changed its policy to allow the purchase of one larger toothbrush every 90 days. The appellate court also held that a medical malpractice tribunal’s finding of insufficient proof of liability against CMS dentist Anthony Orlatunji required that he be dismissed as a defendant. However, the court’s findings did not extend to former CMS dentist Steven Black, who had failed to answer Kilburn’s complaint, or to CMS as a company ...

Starting Out: The Complete Reentry Book, by William Foster and Carl Horn, 446 pp, $22.95

by Matt Clarke

Ideally, our schools and parents teach us all of the things we need to know to function as healthy and productive adults. Obviously, this is not always the case. Schools may focus more on academics than practical knowledge for living; or they may be distracted from their educational mission by social, political or financial problems. Parents may not realize what exactly they need to pass on to their kids, may not know all of the information themselves or might be incapable of educating their children due to drug and/or alcohol addictions. Furthermore, the person needing the information may have skipped classes or dropped out of school and might be estranged from parents and possibly incarcerated from a young age. Prisoners incarcerated for a long time may have known how to deal with the responsibilities of being a free citizen before their incarceration, but might have forgotten some of them or had their coping skills rendered quaint by changes in the way society functions. All of those possibilities and more are what make Starting Out! The Complete Re-Entry Handbook a very useful resource for prisoners re-entering free world society.

The 446-page book addresses a huge number of ...

BOP Fails To Meet Drug Treatment Goals; Lack of Funding Blamed

According to the Bureau of Prisons’ (BOP) annual report to Congress on substance abuse treatment programs, the BOP will once again fail to provide residential drug treatment services to 100 percent of eligible prisoners.

With the BOP’s population swelling beyond 205,000, the demand for drug treatment by federal prisoners only continues to increase. This is especially so given the potential for prisoners to receive up to one year off their sentence if they successfully complete treatment.

Since 2003, though, the BOP has not received a funding increase dedicated to expanding the availability of residential drug treatment. In fiscal year 2007, this resulted in only 80 percent of eligible prisoners receiving residential treatment. In 2008, this figure jumped to 93 percent, but it is expected that number will decline again to around 80 percent, as the 2008 jump in participation was the result of an “unanticipated early release of a number of treatment-eligible” prisoners in the wake of the United States Sentencing Commission’s decision to apply its “crack cocaine” amendment to the federal sentencing guidelines retroactive.

Today, an average of 7,600 prisoners are waiting for residential treatment. In fiscal year 2008, 17,523 prisoners successfully completed residential ...

Georgia Prisoners Must Use Court Promulgated Form to Initiate a Court Action

The Georgia Supreme Court has held that a trial court should have dismissed a mandamus petition filed by a prisoner against prison officials because the prisoner failed to use a form promulgated by the Administrative Office of the Courts (AOC).

Georgia state prisoner Rashad D. Price filed a pro se mandamus petition against his prison’s warden, who moved to dismiss for failure to comply with OCGA § 9-10-14(b). That statute provides that a clerk of court shall not “accept for filing any action by an inmate of a state or local penal or correctional institution ... against any ... officer of state or local government unless the complaint or other initial pleading is on a form or forms promulgated by the [AOC].”

The Supreme Court held that the language of the statute was unambiguous and provided no exceptions. Thus, as the trial court had stated, the clerk “should not have docketed this complaint absent the proper form,” and Price’s mandamus petition should not have been considered a viable pleading.

Accordingly, the Supreme Court reversed the trial court’s grant of mandamus relief in favor of Price, finding that the court had “erred in failing to dismiss the action without prejudice ...

District Court May Order Martinez Report, Ninth Circuit Holds

A federal district court has the discretion to order the preparation of a Martinez report, the U.S. Court of Appeals for the Ninth Circuit decide.

Robert Tuzon, an Arizona prisoner, sued various state prison officials alleging that (1) staff had failed to protect him from assault; (2) his legal materials were taken by library staff; (3) his money was confiscated in July 2003; and (4) he received inadequate medical care.

The district court screened Tuzon’s complaint and dismissed all of his claims except those related to deliberate indifference to his safety and denial of access to the courts. Thereafter, the district court entered a scheduling order and directed the defendants to file an answer. Included in the scheduling order was a requirement that the defendants prepare a Martinez report.

A Martinez report, based on Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), typically requires prison officials to (1) thoroughly explain the allegations in a prisoner’s complaint; (2) provide the results, if any, of their investigation into the allegations; (3) submit affidavits supporting any facts in the report; and (4) provide copies of all grievances and other documents related to the administrative record.

The purpose of ...

Washington Supreme Court Upholds Denial of Parole for Sex Offender Who Refuses to Admit Guilt

In a 5-4 decision, the Supreme Court of Washington state, sitting en banc, upheld the denial of parole for an untreated sex offender.

Richard J. Dyer was convicted of abducting and repeatedly raping two women in 1980. Maintaining his innocence, Dyer is ineligible for the Department of Corrections sex offender treatment program.

Washington’s Indeterminate Sentence Review Board (ISRB) denied Dyer parole on several occasions. Dyer peti-tioned for review following a denial in 2002, resulting in a ruling by the state Supreme Court that the ISRB had abused its discretion by relying on “speculation and conjecture.” See: In re PRP of Dyer, 157 Wn.2d 358, 139 P.3d 320 (Wash. 2006) [PLN, July 2007, p.37].

In October 2006, after another hearing, the ISRB “found Dyer unparolable because he is an untreated sex offender.” The ISRB held that “without an exploration and understanding of the behaviors that directly resulted in his incarceration, he remains at risk to repeat those behaviors in the community.”

Dyer filed a Personal Restraint Petition, arguing that the ISRB’s decision was an abuse of discretion and violated his constitutional rights. Upon consideration by the Washington Supreme Court, the majority noted that RCW 9.95 ...

Washington Pretrial Release UAs Invalidated

In three consolidated criminal cases, the Court of Appeals for Washington state held that a standard pretrial release condition requiring weekly urinalysis (UA) tests was inappropriate.

Washington residents Amber Dee Rose, Danielle Wilson and Kevin Wentz were charged with criminal offenses. The state recommended pretrial release for all three defendants, but requested that each be required to submit to weekly UAs at their own expense.

The defendants contended that the UA requirements were prohibited by United States v. Scott, 450 F.3d 863 (9th Cir. 2006) and Butler v. Kato, 137 Wn. App. 515, 154 P.3d 259 (2007) [PLN, Dec. 2008, p.49]. The trial court rejected their arguments and ordered each to provide weekly UAs. Rose, Wilson and Wentz appealed.

The Court of Appeals reversed, finding that the trial court had erred in imposing weekly UAs for Rose and Wilson be-cause no evidence justified that condition. The Court found evidence supporting the UA condition for Wentz, but then assessed whether the condition was constitutional.

Following “the Scott court’s reasoning, “ the appellate court concluded “that the State failed to establish a special needs exception to the warrantless, suspicionless searches. “ The Court held that “without a showing that drug ...

Second Circuit Establishes Anonymous Pleading Standards

by Mark Wilson

In a case of first impression, the Second Circuit Court of Appeals established standards governing the use of pseudonyms in civil litigation. The Court endorsed the Ninth Circuit’s test of balancing a plaintiff’s interest in anonymity against the public’s interest in disclosure and any prejudice to the defendants.

On October 5, 2005, a pro se New York woman sued state and city officials for claims involving physical and sexual assault. Proceeding under a “Jane Doe” pseudonym, she moved for “a preliminary injunction and an order granting discovery for the purpose of identifying certain ‘John Doe’ defendants.” On October 24, 2005, the district court denied the plaintiff’s motions and ordered her to file an amended complaint using her real name rather than a “Jane Doe” pseudonym. The court also ordered her to correct some other “pleading errors,” including identifying several “John Doe” defendants.

Two weeks later the plaintiff sought the district court’s assistance in identifying the Doe defendants. The court denied the motion. The plaintiff filed two other motions, but they were “rejected and returned” by the court. In doing so, the district court gave the plaintiff 45 days to file an amended ...

Fifth Circuit Reinstates Texas Prisoner’s Failure-to-Protect Suit

by Matt Clarke

The Fifth Circuit Court of Appeals reversed in part a district court’s dismissal of a prisoner’s failure-to-protect suit, though the case lost at trial after remand.

Ernesto R. Hinojosa, Sr., a Texas state prisoner, was housed in an open dormitory at the Wynne Unit when he was attacked without provocation by fellow prisoner Joseph Brown. No guards or video or audio surveillance was in the dormitory when the assault occurred. Brown broke a toilet brush while hitting Hinojosa on the head multiple times, then tried to stab him with the broken brush handle, causing serious injuries.

Hinojosa filed a pro se 42 U.S.C. § 1983 civil rights action against both Wynne and state-level prison officials for failing to protect him. He alleged that Wynne officials knew the dormitory was understaffed and insufficiently supervised, and that Brown was mentally unstable and had a history of violence – including using weapons to attack other prisoners – and thus should not have been housed in an open dorm with unrestricted access to potential weapons such as cleaning tools.

Claiming qualified immunity, the defendants moved for summary judgment and a protective order against discovery. Hinojosa opposed both motions and filed ...

Reversal of Summary Judgment to BOP Doctor Accused of Deliberate Indifference

The U.S. Court of Appeals for the Seventh Circuit has reversed a grant of summary judgment to a Bureau of Prisons (BOP) doctor accused of denying a death row prisoner needed eye surgery.

Arboleda Ortiz, a federal prisoner currently on death row at the U.S. Penitentiary in Terre Haute, Indiana, was first di-agnosed with pterygia, abnormal masses of thickened membrane that extend over the cornea of the eye, in 2001. The ophthalmologist who examined Ortiz noted that the pterygia were “visually significant” and recommended surgery.

For the next five years, Ortiz’s vision worsened and specialists continued to recommend that his pterygia be surgically removed. Nevertheless, Dr. Thomas Webster, the Clinical Director at Terre Haute, refused to approve Ortiz for surgery. One of Webster’s denials included a handwritten note stating, “NO TOWN TRIP.”

Ortiz filed suit against Webster alleging that he was denied surgery for his pterygia in part due to a policy prohibiting death row prisoners from leaving prison for medical treatment. Webster responded to Ortiz’s allegations by asserting, for the first time, that he had denied Ortiz’s surgery for pterygia because none of the doctors who examined him indicated that the condition was ...

News in Brief:

California: On June 29, 2009, Richard Henry Kase, 41, was sentenced to 90 years to life for the first-degree murder of his cellmate, 28-year-old Randy James Rabelos, at the Deuel Vocational Institution in Tracy. Kase repeatedly told Rabelos, a convicted child molester, to be quiet one night in December 2007 before punching him in the throat, shoving a towel in his mouth, pinching his nose shut and saying, “Goodbye, Randy.” The next morning he informed the guards that Rabelos was dead. Kase was serving an 11-year sentence for illegal weapon possession at the time. Ironically, that conviction was overturned and dismissed just seven months after he killed Rabelos.

California: Working on a tip, Fresno County Sherriff’s deputies staked out the Claremont Correctional Center on Octo-ber 17, 2009. They arrested 27-year-old parolee Antoine Enoch and 31-year-old Janae Mason after observing the pair throw a soccer ball over the prison yard fence. The ball was stuffed with drugs, cell phones and other contraband. The pair was booked into jail on various drug-related charges.

Florida: In November 2009, Vincent Lee, 42, was charged with killing Willie Smith, 28, on October 16. Both men were prisoners at the South Bay Correctional Institute, operated ...

 

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