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Prisoner Education Guide

Prison Legal News: October, 2010

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Volume 21, Number 10

In this issue:

  1. Crime Labs in Crisis: Shoddy Forensics Used to Secure Convictions (p 1)
  2. Prisoners of the Census in New York: Democracy on the March! (p 18)
  3. From the Editor (p 22)
  4. New York Prisons Avoid Budget Axe (p 23)
  5. Are Doctors Complicit in Prison Torture? The Maine Medical Community Looks at Solitary Confinement (p 24)
  6. State Auditor Issues Report on Washington Department of Corrections (p 26)
  7. $13 Million Settlement in DC Mass Arrest of Protestors (p 26)
  8. Settlement Allows North Carolina Prisoners to Receive Compensation for Writings (p 28)
  9. Expanded Eligibility for New York Medical Parole Has Little Effect (p 30)
  10. Ex-Cons Face Tougher Job Market in Great Recession (p 30)
  11. Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear, by Jonathan Simon (Oxford University Press 2007), 344 pages (p 32)
  12. New York Prison Chaplain Accused of Smuggling Weapons (p 33)
  13. Prisoners’ Self-Help Litigation Manual, 4th Edition, by John Boston and Daniel Manville, Oxford University Press, 960 Pages, $39.95 (p 34)
  14. Former President of Florida Sheriff’s Association Enters Plea in Kickback Scheme (p 34)
  15. $3.125 Million in Settlements in Oregon Prisoner’s Beating Death (p 35)
  16. Tennessee Judge Facing Misconduct Charges Tries to Depose Disciplinary Counsel (p 36)
  17. Pennsylvania Prisoner Awarded $185,000 in Civil Rights Claim; Harassment Continues (p 36)
  18. Ninth Circuit Says Qualified Immunity Warranted for Comb-Binding Denial (p 37)
  19. Washington Prisoners Need Not Show Prima Facie Case Upon Challenging Prison Discipline (p 38)
  20. Virginia Issues Report on Monitoring of Sex Offenders Subject to Registration (p 38)
  21. Georgia Ends Contact Visits for Death Row Prisoners (p 39)
  22. Texas Controversy: Governor Guts Forensic Science Commission (p 40)
  23. For Lease: Never-Used 525-Bed Oregon Jail, $45 Million or Best Offer (p 42)
  24. Seventh Circuit Upholds Ban on Dungeons & Dragons (p 42)
  25. New York Prison Superintendents Live in Lap of Luxury on Taxpayer Subsidy (p 43)
  26. Third Circuit Reverses $642,398.57 Attorney Fee Award for RFRA Claim by Immigration Prisoner (p 44)
  27. U.S. Supreme Court: No Bivens Remedy Available Against PHS Staff (p 44)
  28. Fraudsters Sentenced in Cornell Prison Construction Scheme (p 45)
  29. Successful Appellate Ruling Invalidating Statute Creates Prevailing Party for Attorney Fee Award (p 46)
  30. Exhaustion Excused Where Warden Misled Prisoner During Grievance Process (p 46)
  31. Ninth Circuit: Los Angeles County Not Liable for Occasional Over-Detentions (p 47)
  32. Female Assistant Attorney General Pleads Guilty in Wife-Beating Case (p 48)
  33. Sexual Abuse of Youths at Tennessee Juvenile Facility Widespread (p 48)
  34. Fake Rape Claim Puts Woman in Prison (p 49)
  35. News in Brief: (p 50)
  36. Limitations Period in Suit Over Delay in Providing Surgery Begins When Prisoner is Recommended for Surgery (p 52)

Crime Labs in Crisis: Shoddy Forensics Used to Secure Convictions

To millions of people whose knowledge of crime labs comes from television shows such as CSI, Bones, Crossing Jordan and the venerable Quincy M.E., the forensic experts who work at such labs seem to be infallible scientists who use validated scientific techniques to follow the evidence to the truth, regardless of where it leads. Sadly, that is far from accurate.

“The CSI effect has caused jurors to expect crime lab results far beyond the capacity of forensic science,” wrote Jim Fisher, a former FBI agent and retired criminalistics professor who taught forensic science at Edinboro University of Pennsylvania, in his 2008 book titled Forensics Under Fire: Are Bad Science and Dueling Experts Corrupting Criminal Justice?

Fisher notes that problems in forensics “have kept scientific crime detection from living up to its full potential.” His conclusion is that “bad science, misadventures of forensic experts [and] human error” exemplify “the inability of our 21st century judicial system to properly differentiate between valid research and junk science.”

Crime lab workers are not necessarily scientists. In fact, sometimes only a high school diploma is required for employment as a forensic technician or arson investigator. Nor are lab examiners and their ...

Prisoners of the Census in New York: Democracy on the March!

New York is the most recent state to pass new rules about how people in prison are counted in the U.S. Census. The law (A11597/S8415), passed by the New York Senate on August 3, 2010, provides that for purposes of political redistricting, incarcerated persons count as residents of their places of residence prior to incarceration, not as residents at their place of incarceration.

Maryland passed a similar rule in April. Delaware passed one in June. If other states move in this direction, it will become a trend that the Census Bureau cannot ignore. The Bureau’s job, after all, is to take the Census. Three states representing 8.5 percent of the U.S. population think something is wrong. As the votes of no confidence continue, the Census may need to change its practice.

First, some history. The Census Bureau’s general rule is to count people at their “usual residence,” the place where they live and sleep most of the time. People’s usual residence need not be the same as their legal or voting address—but still, determining the usual residence for most people is as easy as filling out a form. Special categories present special ...

From the Editor

This month’s cover story looks at the ongoing scandal at the nation’s crime labs. The problem is so pervasive – PLN has reported on it extensively over the years – that several books could easily be written on the topic. Yet just as wrongful convictions tend to be the exclusive province of the poor, crime lab “mistakes” and “errors” tend to only benefit the police and prosecutors. The reality is that crime labs are as relative to science as the military is to music. The purpose of crime labs is to provide the dramatic props that prosecutors need to convince juries to convict criminal defendants. Nothing more and nothing less.

Tellingly, there is no effort afoot to make crime labs either independent of police and prosecutors or to ensure they have any type of independent oversight. In a truly equal system this would be of little consequence because defendants accused of a crime would simply retain their own experts who would review the evidence and “scientific” conclusions of the prosecution-run crime labs and issue their own reports. After all, science is immutable. Yet the reality is that most defendants are too poor to afford their own counsel much less their ...

New York Prisons Avoid Budget Axe

by David M. Reutter

With the State of New York having 5,000 empty prison beds and a large budget deficit, it would seem the logical decision would be to save taxpayer dollars by closing some prisons. That, however, is not the choice of New York’s elected officials.

Rather than shut down four facilities, state authorities spent $34 million to keep them operating. The rationale for this apparently foolhardy approach is rooted in political clout and the need to continue propping up failed rural economies that have come to rely on the prisons for jobs and revenue.

Three facilities in northern New York near the Canadian border exemplify the waste of public tax dollars. In a population count taken on December 31, 2009, a prison in Lyon Mountain had 91 employees and 135 prisoners; the Ogdensburg Correctional Facility (OCF) had 287 employees and 474 prisoners; and the Red Creek minimum security complex had 67 employees and 71 prisoners.

Since 1999, New York’s crime rate has declined and nonviolent offenders are spending less time in prison. The state’s prisons hold 13,000 fewer prisoners than they did a decade ago, and it is expected that the population will ...

Are Doctors Complicit in Prison Torture? The Maine Medical Community Looks at Solitary Confinement

In the past few years an outcry has arisen over the involvement of military and CIA medical professionals and psychologists in torture, including psychologically destructive solitary confinement of “war on terror” detainees at the Guantánamo prison camp. Some critics have even suggested criminal prosecution of the medical staff involved or, at least, revocation of their professional licenses.

In Maine’s prison system, too, prisoners — many of them mentally ill — are kept in isolation for months or years in the state prison’s 132-cell Special Management Unit, its “supermax,” in Warren. Some Maine doctors are now looking closely at the state’s supermax, saying that solitary confinement constitutes torture, and asking if the medical professionals and psychologists involved with the facility are complicit in torture.

“I do believe they should look at the big picture,” says Janis Petzel, of Hallowell, president of the Maine Association of Psychiatric Physicians, talking specifically about doctors who do “peer reviews,” a type of quality review, of Maine’s prisoner psychiatric care. “Twenty years ahead I don’t want to look back and say we were like the Nazi doctors.” When physicians encounter solitary confinement, she says, they “have a duty to speak out.”

In the ...

State Auditor Issues Report on Washington Department of Corrections

On December 7, 2009, the Washington State Auditor’s Office released a report on an audit of the Department of Corrections (DOC) that covered the time period from July 1, 2008 through June 30, 2009.

The report examined cash handling, payroll, credit cards, local funds and the status of recommendations from previous annual audits. Two new problem areas were found: inadequate policies or internal controls over Voyager fuel cards, and inadequate internal controls over cash handling in prison mailrooms.

The Voyager cards were intended to allow fueling of DOC vehicles, and were limited to purchasing regular unleaded or diesel fuel, up to six car washes annually, and emergency purchases of oil, wiper blades or vehicle lights. As of May 2009, the DOC had issued 1,152 fuel cards – 852 assigned to fleet vehicles, 279 assigned to prisons or offices and 21 to individuals. Only 785 of the cards were used during the audit period.

Fuel card purchases are supposed to be reviewed by a regional office. However, in practice the State Auditor found that supporting documents were not reviewed and fuel card activity was not tracked. Some reviewers did not understand what purchases were allowed, and card users did not ...

$13 Million Settlement in DC Mass Arrest of Protestors

by David M. Reutter

The District of Columbia agreed to pay $13,302,500 to settle a class-action lawsuit related to the illegal arrest of 680 people. Those people were arrested on April 15, 2000 in connection with the protest against the Prison Industrial Complex during the International Monetary Fund-World ...

Settlement Allows North Carolina Prisoners to Receive Compensation for Writings

by David M. Reutter

North Carolina’s Department of Corrections (NCDOC) has entered into a settlement agreement that allows prisoners to prepare for publication and receive compensation for manuscripts so long as the prisoner “authorizes a family member to handle all issues and correspondence related to the business aspect of ...

Expanded Eligibility for New York Medical Parole Has Little Effect

by Matt Clarke

In April 2009, New York passed a statutory amendment that expanded the state’s compassionate release program for terminally ill prisoners. The amendment permitted medical parole for prisoners convicted of certain violent crimes who were physically or cognitively unable to present a threat to society, if they had served at least half their sentence. The new guidelines resulted in an increase in the number of medical parole applications, from 66 in 2008 to 202 in 2009. However, the number of prisoners actually released on medical parole has not gone up.

Eddie Jones, an 89-year-old Harlem loan shark convicted of shooting a man twenty years ago, was slated to become the first prisoner released under the expanded medical parole guidelines. Instead, he died in prison on February 1, 2010, nine days before his scheduled parole hearing. He suffered from heart disease and was suspected of having cancer.

Mr. Jones’ fate was not unusual. Since 2005, at least 17 New York prisoners have died while awaiting processing of their medical parole applications. Also known as compassionate release, medical parole has been a hot topic in detention facility circles nationwide over the past several years. The idea is to release ...

Ex-Cons Face Tougher Job Market in Great Recession

by David M. Reutter

Those who have the black mark of a felony conviction face prejudice in the job market even when the economic picture is rosy. In these times of the Great Recession, that black mark has the ex-con jobless rate six times higher than those without a felony record. Experts in the field say the situation for many ex-cons leads to desperation to make ends meet, which increases the likelihood they will reoffend.

With about 700,000 people being released from state and federal prisons yearly, there is a large pool of people needing work. Budget crunches nationwide have officials looking to release prisoners to save money, and whether those released find employment will often determine if they become statistics of recidivism.

“If people get drawn back into the real world, get a job and make a living, studies show they’ll be less likely to go back to prison,” said Howard Husock, vice president of policy research at the Manhattan Institute for Policy Research. “With early release now on the menu for so many states, it makes the matter more pressing.”

The national unemployment rate has been hovering at around ten percent since late 2009. This pits ...

Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear, by Jonathan Simon (Oxford University Press 2007), 344 pages

Review by Ian Head

This past spring, a 12-year-old student in Queens, New York was arrested, handcuffed and taken to a local precinct for doodling on her desk during class. Paraded out of the building in tears by police, this was just the latest in a string of horrific incidents that led the New York Civil Liberties Union to file a class-action lawsuit regarding police in schools.

But it would probably not surprise author and professor Jonathan Simon. In his book Governing Through Crime, he writes that schools are one of many parts of American society governed through the idea, and fear, of crime – in this case, the “crime” of damaging school property. Discussing the “zero tolerance” policies that have been increasingly put in place in schools across the country, Simon writes, “The right to go to school in a safe environment has been transformed from a set of expectations for administrators to a zero-sum game between aggressors who are criminals or criminals in the making, and their victims – a shifting group consisting of everyone not stigmatized already as a criminal.”

Simon shows that this “zero-sum game” where “criminals” are opposed to a shifting group of “victims” is pervasive in ...

New York Prison Chaplain Accused of Smuggling Weapons

Zul Qarnain Abdu-Shahid, 58, a Muslim chaplain for the New York City Department of Corrections (NYDOC), was arrested on February 3, 2010 for attempting to introduce contraband into the Manhattan Detention Complex; he was temporarily held on $50,000 bond after his arraignment. Abdu-Shahid allegedly had a pair of scissors and three box cutter-type blades in his duffle bag when he entered the facility.

As a result of an investigation surrounding the contraband smuggling allegations, it was discovered that Abdu-Shahid had been convicted of a 1976 murder that occurred during a Harlem supermarket robbery. At that time he was known as Paul Pitts, and he served almost 14 years in prison for homicide.

An ecclesiastical endorsement is the only civil service qualification for hiring a prison chaplain, according to NYDOC spokesman Stephen J. Morello. Abdu-Shahid had the required endorsement from the Majlis Ash-Shura of New York. The NYDOC has around 50 chaplaincy positions, and applicants are required to submit fingerprints for a background check and self-disclose their criminal history. However, a prior felony conviction does not disqualify them. Abdu-Shahid was hired by the NYDOC in 2007, six years after he completed his parole term.

“I think all of the policies ...

Prisoners’ Self-Help Litigation Manual, 4th Edition, by John Boston and Daniel Manville, Oxford University Press, 960 Pages, $39.95

Reviewed by Paul Wright

The Prisoners’ Self-Help Litigation Manual (PSHLM) by Dan Manville first appeared in 1983. It was designed to give prisoners an overview of the legal system, a basic overview of what their rights are and guidance on how to actually litigate a suit in federal court. The book went on to become enormously popular with jailhouse lawyers and in many court access cases it became a required part of prison law library collections. The second edition came out in 1986, the third edition in 1995. As the years passed the book became dated in that the law pertaining to prisoners’ rights was rapidly changing, moreso with the passage of the Prison Litigation Reform Act and several key Supreme Court cases that severely diminished prisoners’ rights. Now, fifteen years later, the fourth edition is finally available.

This is the third PSHLM that I have owned, and I still have the second and third editions sitting on my bookshelf. Unlike many other books and products, each edition of the PSHLM is better than the last. The authors clearly respond to feedback and strive to improve what is already a fantastic resource. The PSHLM is divided into sections. The section ...

Former President of Florida Sheriff’s Association Enters Plea in Kickback Scheme

In February 2010, former Okaloosa County, Florida Sheriff Charlie Morris pleaded no contest to state racketeering and money laundering charges related to an employee bonus kickback scheme that netted him thousands of dollars.

To enter the plea, Morris was transported from federal prison where he was serving a 71-month sentence after pleading guilty in August 2009 to fraud, money laundering and conspiracy charges. He was also ordered to pay $212,537.53 in restitution and forfeit $194,000 in property as part of his federal conviction, and U.S. District Court Judge Lacey Collier admonished him for “tarnish[ing] the badge of every law enforcement officer in this entire area.” [See: PLN, Dec. 2009, p.22].

“It’s time to move on,” said Morris, who previously served as president of the Florida Sheriff’s Association, as he appeared in court in a jail jumpsuit and handcuffs to plead to the state charges. “I don’t want to see my family go through another trial. I’ve done enough harm.”

Morris will not be sentenced on the state charges until after the trials of his co-defendants, whom he agreed to testify against. Five other sheriff’s office employees have been charged ...

$3.125 Million in Settlements in Oregon Prisoner’s Beating Death

On July 2, 2009, the estate and family of a mentally ill Oregon man who died in police custody settled claims against Multnomah County, a former deputy sheriff and jail nurses for $925,000. The case remained pending against the City of Portland, American Medical Response (AMR) ambulance service and ...

Tennessee Judge Facing Misconduct Charges Tries to Depose Disciplinary Counsel

by Matt Clarke

Cocke County, Tennessee General Sessions Judge John A. Bell, while facing a judicial misconduct complaint, sought to depose Joseph S. Daniel, disciplinary counsel for the Tennessee Court of the Judiciary, in February 2010. Bell also asked to review all complaints filed against Tennessee judges due to delayed rulings since 2003.

Daniel filed a motion to quash the requests for a deposition and the records as well as a separate subpoena filed by Bell.

Daniel was prosecuting a complaint against Judge Bell that stemmed from a civil case involving a car accident. David Pleau had accused Bell of misconduct in the civil case, including a lengthy delay in issuing a judgment. Bell then allegedly asked his attorney, Thomas V. Testerman, to convince Pleau to drop the ethics complaint.

Judge Bell initially refused to answer Daniel’s questions, asserting his Fifth Amendment right against self-incrimination and attorney-client privilege in his communications with Testerman.

Previously, in 2008, Bell faced disciplinary charges of funneling probationers to a company operated by his brother-in-law and improperly accepting payment for a speech he gave at a local church. In that case he cut a deal with the Court of the Judiciary by agreeing to ...

Pennsylvania Prisoner Awarded $185,000 in Civil Rights Claim; Harassment Continues

by David M. Reutter

A Pennsylvania federal jury has awarded $185,000 to a prisoner in a civil rights action alleging conspiracy, retaliation, obstruction of access to the courts and defamation of character.

Pennsylvania state prisoner Andre Jacobs prosecuted the lawsuit pro se. His complaint involved events that occurred at ...

Ninth Circuit Says Qualified Immunity Warranted for Comb-Binding Denial

On December 2, 2009, the Ninth Circuit Court of Appeals found that a prison librarian was entitled to qualified immunity for denying a prisoner’s request to comb-bind his legal papers.

Oregon prisoner Frank Phillips intended to file a petition for writ of certiorari, challenging his conviction in the U ...

Washington Prisoners Need Not Show Prima Facie Case Upon Challenging Prison Discipline

by David M. Reutter

On February 4, 2010, the Washington State Supreme Court held that prisoners challenging prison disciplinary decisions do not have to make a prima facie case of prejudice to obtain review in a personal restraint petition. However, they still must show that the disciplinary hearing was so arbitrary and capricious as to deny them a fundamentally fair proceeding.
The matter was before the Court on an appeal of the personal restraint petition of James W. Grantham, a prisoner at McNeil Island Corrections Center. Grantham received a disciplinary infraction for possession, introduction, use or transfer of tobacco and controlled substances.

The infraction was issued after a guard, who was under investigation for bringing contraband into the facility, was confronted by other staff members. She turned over a plastic bag that contained smoking and chewing tobacco together with a coffee can containing marijuana. She did not know the name of the person who had given her the contraband but had his phone number, which belonged to Grantham’s brother.

Grantham’s petition stressed that a recorded telephone conversation between him and his brother did not involve explicit discussions of marijuana or tobacco. He further argued that the notice of ...

Virginia Issues Report on Monitoring of Sex Offenders Subject to Registration

by Matt Clarke

In January 2010, the Virginia State Police (VSP) issued a report on the monitoring of sex offenders who are required to comply with registration laws. The report noted a high rate of compliance (94%) with the Sex Offender Registry (SOR) requirements.

The report was signed by Colonel H. Steven Flaherty, VSP Superintendent, and addressed to the governor, House Appropriations Committee and Senate Finance Committee. It noted that there were 16,238 sex offenders on the VSP SOR as of 12-1-09. 3,171 of them were on parole or probation and 7,014 were incarcerated, leaving only 6,053 whose SOR information had to be verified directly by the VSP.

For this task, the VSP assigned 40 state troopers, four sergeants and a first sergeant to the Sex Offender Investigative Unit. The unit was divided into four regions which were further subdivided into a statewide total of 11 sub-regions. The purpose of the unit was to enforce SOR requirements.

Between 12-1-08 and 11-30-09, the unit conducted 2,651 criminal investigations for “Providing False Information” and “Failure to Register.” There were 972 arrests and 379 convictions for those types of offenses. During that period, VSP received 1,605 tips ...

Georgia Ends Contact Visits for Death Row Prisoners

by David M. Reutter

Three non-execution deaths on Georgia’s death row in as many months, including two suicides, resulted in a focus on conditions for condemned prisoners at the Georgia Diagnostic and Classification Prison. The response by prison officials was to end all contact visits with family and loved ones.

Death row prisoner Kim McMichen died on October 29, 2009 from pneumonia after being transported to an outside hospital. The New Hope Center, which provides housing for family members visiting prisoners on death row, wrote in a newsletter that McMichen’s death could have been prevented with more timely care.

Then, on November 19, 2009, Timothy Pruitt was found in his death row cell suffering injuries from a botched suicide attempt. He had tried to hang himself with a bed sheet and died on December 6 from complications related to his suicide attempt.

Finally, on New Year’s Day 2010, death row prisoner Leeland Mark Braley was found dead after hanging himself.

Following Braley’s death, prison officials implemented new restrictions they said were meant to enhance security on death row: They revoked all contact visits with family members and loved ones. Pastor Randy Loney, who ministers to death ...

Texas Controversy: Governor Guts Forensic Science Commission

by Matt Clarke

Texas Governor Rick Perry caused considerable controversy on Sept. 30, 2009 when he replaced three members of the Texas Forensic Science Commission, just two days before the commission’s hearing on a report that an innocent man may have been executed during Perry’s tenure. As a result the hearing was postponed.

According to Cameron Todd Willingham, a 23-year-old unemployed mechanic living in Corsicana, Texas, he woke up on the morning of December 23, 1991 to find his house on fire. He received minor burns but made it out alive. His three infant daughters did not. Local investigators concluded the fire was caused by arson, and the Texas State Fire Marshal’s Office agreed. Willingham was the only suspect; he was charged with murder, convicted, sentenced to death and executed on February 17, 2004. He proclaimed his innocence with his last words.

It was later revealed that shortly before Willingham was executed, Governor Perry had received a fax from Willingham’s attorney containing an arson expert’s report. The report, by Austin, Texas fire science expert Gerald Hurst, who holds a doctorate in chemistry from Cambridge University, stated that the investigators “made errors” and used discredited techniques to determine whether the fire ...

For Lease: Never-Used 525-Bed Oregon Jail, $45 Million or Best Offer

A seemingly good idea before the housing market collapsed, the 525-bed, $58 million Wapato Jail has sat empty in Portland, Oregon since construction was completed in 2004. County taxpayers are paying approximately $5 million annually on debt service for the facility plus $400,000 to maintain the empty building each year.

During his campaign in 2006, Multnomah County Commission Chairman Ted Wheeler vowed to open the Wapato Jail. Since then, however, county officials have repeatedly tried, but failed, to do so.

Most recently the Oregon Department of Corrections (ODOC) rejected a county proposal to lease Wapato as a minimum-security alcohol and drug treatment facility. Citing declining prison population forecasts and unstable state funding, on February 10, 2010, ODOC Director and former state senator Max Williams testified before the legislature’s Ways and Means Committee that the state should postpone a decision about leasing the Wapato Jail. Williams acknowledged that the state expects significant prison growth by 2013, but recommended that officials wait until 2011 to reconsider options for increasing prison capacity.

ODOC officials claim they could complete construction on the department’s own stalled Junction City prison for about the cost of leasing Wapato. Additionally, at least $17 million in ...

Seventh Circuit Upholds Ban on Dungeons & Dragons

Seventh Circuit Upholds Ban on Dungeons & Dragons

by Brandon Sample

The Wisconsin Department of Corrections (DOC) may prohibit the Dungeons & Dragons (D&D) role-playing game and D&D-related publications without violating the First Amendment, the U.S. Court of Appeals for the Seventh Circuit decided on January 25, 2010.

Kevin Singer, a prisoner at Wisconsin’s Waupun Correctional Institution, had been playing D&D since he was a child. Until 2004 he was allowed to play D&D and order and possess D&D-related materials at Waupun; however, that changed after Bruce Muraski, the facility’s Disruptive Group Coordinator, received an anonymous note from another prisoner.

The note claimed that Singer and three other prisoners were trying to form a D&D “gang,” and asked Muraski to check into the matter before it got “out of hand.” Muraski ordered searches of Singer’s and the three other prisoners’ cells. The searches resulted in the confiscation of numerous D&D materials.

Thereafter, Waupun staff banned possession of D&D publications and the playing of all fantasy games. The ban was necessary, according to DOC staff, because games like D&D promote “fantasy role playing, competitive hostility, violence, addictive escape behaviors, and possible gambling.”

Singer sued, arguing that the ban violated the First Amendment. To support his claims he submitted fifteen affidavits – some from other prisoners, some from role-playing game experts – which indicated D&D game play and materials had not led to violence or gang activity in the past, and that fantasy role-playing games in general, including D&D, actually promote rehabilitation.

The district court was not persuaded. The court granted summary judgment to DOC officials, crediting Muraski’s affidavit which ...

New York Prison Superintendents Live in Lap of Luxury on Taxpayer Subsidy

On the heels of a report that suggests ways to trim costs of New York’s prison system, several state legislators are calling for an end to subsidizing luxurious homes for prison superintendents.

Residences for prison guards and superintendents date to the 1800s. They were utilized as incentives to attract wardens and staff, who must be available around the clock.

State records reveal that at least eight prison wardens live in state-owned mansions that are located on or near prison grounds. At least one has a lake view. The only cost to the wardens is a “maintenance fee” that is set by the state budget division.

Shawangunk Correctional Facility Superintendent Joseph Smith makes $144,574 a year. His position allows him to live in a 6,968 square foot home located at nearby Wallkill Correctional. He pays the state $511.54 to live in the home.

Joseph Bellnier, Superintendent of Marcy Correctional Facility, pays the most of any superintendent to live in state subsidized housing. While he earns $120,279, he only has $373.40 deducted bi-weekly from his salary for housing, or $9,708 a year.

“These superintendents live basically for free in large and luxurious homes where they ...

Third Circuit Reverses $642,398.57 Attorney Fee Award for RFRA Claim by Immigration Prisoner

The Third Circuit Court of Appeals reversed an immigration detainee’s $642,398.57 attorney fee award, finding that “the District Court’s degree of success inquiry under § 1988 was based on an impermissible reconstruction of the jury verdict.”

Hawa Abdi Jama, a Somalian immigrant and a Muslim, was detained as an illegal immigrant at an Elizabeth, New Jersey detention center operated by Esmor Correctional Services, Inc. (Esmor) for the U.S. Immigration and Naturalization Service (INS).

In 1997, Jama and 19 other detainees sued Esmor, INS and numerous individual defendants over abusive treatment and deplorable conditions at the facility. All of the plaintiffs except Jama settled the class-action suit for $2.5 million. [See: PLN, Sept. 2006, p.26; Sept. 1995, p.17].

In 2007, a jury trial was held on Jama’s claims. The jury ruled in her favor on her claim that the defendants substantially burdened her ability to practice her religion, in violation of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq. The jury also ruled in her favor on a pendent state law claim that Esmor and other defendants had negligently hired, trained, supervised and/or retained guards at the ...

U.S. Supreme Court: No Bivens Remedy Available Against PHS Staff

On May 3, 2010, the U.S. Supreme Court held that employees of the U.S. Public Health Service (PHS) may not be sued for constitutional violations under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

While detained by Immigration and Customs Enforcement (ICE), Francisco Castaneda requested medical treatment for an “irregular, raised lesion” on his penis that was growing in size, bleeding and causing pain. Despite being told by three specialists that Castaneda needed a biopsy of the lesion, Esther Hui, a PHS physician, disregarded those recommendations. Castaneda was instead given ibuprofen and antibiotics, plus an extra set of boxer shorts.

In January 2007, Castaneda was finally approved for a biopsy after a fourth specialist recommended the procedure. Instead of performing the biopsy, however, ICE released Castaneda from custody. A week later he had the biopsy at a local hospital and the lesion was determined to be cancerous. Castaneda had his penis amputated and underwent chemotherapy, but later died after treatment proved unsuccessful.

Castaneda’s estate filed suit against the United States under the Federal Tort Claims Act (FTCA), claiming medical negligence. His estate also sued Dr. Hui and other PHS staff claiming constitutional violations ...

Fraudsters Sentenced in Cornell Prison Construction Scheme

A man who bilked almost $13 million from Cornell Corrections Corp. has been convicted of federal fraud and conspiracy charges, while two co-defendants pleaded guilty.
In February 2010, Robert B. Surles was convicted by a federal jury in Atlanta, Georgia of conspiracy and 15 counts of wire fraud as part of a construction scam.

Cornell hired Surles to build its Southern Peaks Regional Treatment Center in Colorado in 2003. The company transferred almost $13 million to an account where the funds were supposed to have been held in escrow, but Surles and his co-defendants gained control of the account and Surles spent $605,000 on himself. [See: PLN, April 2009, p.47].

“This defendant fraudulently induced a company to transfer approximately $13 million into an ‘escrow account’ that turned out to be nothing but a piggy bank for the defendant and his co-conspirators,” said U.S. Attorney Sally Q. Yates.

Surles’ co-defendants, Edgar J. Beaudreault, Jr. and Howard Sperling, took plea deals and testified against him. Surles was sentenced on June 22, 2010 to ten years in federal prison and three years’ supervised release. Beaudreault received a 37-month sentence plus three years’ supervised release, while Sperling was sentenced to almost ...

Successful Appellate Ruling Invalidating Statute Creates Prevailing Party for Attorney Fee Award

by David M. Reutter

The Washington State Supreme Court has held that a litigant who successfully gets an appellate court to vacate a prison disciplinary infraction and declare a statute unconstitutional is a prevailing party under 42 U.S.C. § 1988, entitling him to attorney fees. The Court further held that upon remand attorney fees would be awardable for all successful claims, not just a retaliation claim as limited by the appellate court.

Before the Washington Supreme Court was a petition for review filed by prisoner Allan Parmelee, who received a disciplinary infraction at Clallam Bay Corrections Center (CBCC) for using inflammatory language in a letter.

The July 20, 2005 letter was addressed to Harold Clarke, Secretary of the Washington Department of Corrections. Parmelee wrote, “I have been puzzled by the widespread hostilities growing ever tense [sic] at CBCC since I’ve been here. I have finally discovered the formula has to do with a verified reliable source indicating Superintendent Sandra Carter is anti-male – a lesbian .... Having a man-hater lesbian as a superintendent is like throwing gas on [an] already smoldering fire.”

CBCC did not allow the letter out of the prison and infracted Parmelee on October 13, 2005 for ...

Exhaustion Excused Where Warden Misled Prisoner During Grievance Process

Failure to exhaust administrative remedies may be excused when prison officials mislead a prisoner during the grievance process, the U.S. Court of Appeals for the Ninth Circuit decided on January 11, 2010.

In May 2002, prisoner Gerson Nunez was strip-searched upon his return to the Federal Prison Camp (FPC) in Sheridan, Oregon from his work assignment cleaning the visitation room at the adjacent medium-security institution.

Nunez filed a grievance the next day, claiming the search violated his Fourth Amendment rights because a guard had selected Nunez for the search after asking him and another prisoner to pick a number between one and ten. Nunez picked four, which was closest to five, the number the guard had selected, so Nunez was the winner of the strip search “lottery.”

The warden denied Nunez’s grievance, citing a Bureau of Prisons’ (BOP) program statement that supposedly authorized the strip search. The warden referenced the wrong program statement in his response, however, causing Nunez to go on a ten-month wild goose chase for the incorrectly-cited statement, which was restricted and not available to prisoners.

Nunez finally learned of the warden’s error, but by then his grievance appeals to the Regional Director and ...

Ninth Circuit: Los Angeles County Not Liable for Occasional Over-Detentions

In an official-capacity action brought under 42 U.S.C. § 1983 against Los Angeles County Sheriff Leroy D. Baca, the plaintiffs alleged they remained in the custody of the Sheriff’s Department, in violation of their constitutional rights, for periods of time ranging from 26 to 29 hours after a court had ordered their release. On appeal, the Ninth Circuit upheld the district court’s second grant of summary judgment to Sheriff Baca on the ground that the evidence proffered by the parties, when viewed in the light most favorable to the plaintiffs, did not support a finding of deliberate indifference.

In a previous opinion, Berry v. Baca, 379 F.3d 764 (9th Cir. 2004) [PLN, March 2005, p.32], the Ninth Circuit had reversed the district court’s prior grant of summary judgment to Baca. In so ruling, the Court of Appeals explained that the district court had failed to apply the analytical framework appropriate for determining whether or not “action pursuant to official policy of some nature caused a constitutional tort,” citing Monell v. Dep’t. of Soc. Servs., 436 U.S. 658 (1978). In particular, the Ninth Circuit said the district court had failed to address the ...

Female Assistant Attorney General Pleads Guilty in Wife-Beating Case

An Oregon Assistant Attorney General (AAG) who defends against prisoners’ appeals in criminal cases was recently arrested for punching and strangling her wife; she entered treatment and pleaded guilty two weeks later.

On February 12, 2010, AAG Susan R. Gerber, 40, returned home to find that her wife of five years, Janice Dulle, 38, had “started the process of changing the locks” on the couples’ Portland condo.

Dulle confronted Gerber, saying she suspected her of having an affair with another woman. Gerber punched Dulle with a closed fist and demanded a phone that Dulle was holding, according to a locksmith who witnessed the assault. When Gerber pushed Dulle against a wall and choked her, the locksmith called 911.

Responding officers noted red marks on Dulles’ neck and bruises on her arms. She rated her pain a “3” out of “10” and said she couldn’t breathe as Gerber strangled her. But Dulle didn’t want Gerber to be prosecuted.

Even so, Gerber was arrested, booked into jail and released with a “no contact order” that prevented her from returning to the condo.

On February 16, 2010, Gerber was arraigned on charges of fourth-degree assault, harassment and strangulation. Her attorney, Michael ...

Sexual Abuse of Youths at Tennessee Juvenile Facility Widespread

by David M. Reutter

A February 2010 news report by The Tennessean, Nashville’s daily newspaper, revealed that juvenile offenders are regularly sexually abused at the Woodland Hills Youth Development Center.

The investigation followed a U.S. Department of Justice (DOJ) study that found Woodland Hills had one of the highest rates of abuse of any juvenile facility in the country, ranking among the top 13 facilities for sexual abuse. Nationwide, about 95% of staff sexual abuse at juvenile facilities involves female employees and male prisoners.

Woodland Hills is run by Tennessee’s Department of Children’s Services (DCS). Despite the DOJ’s findings, DCS apparently remains in denial.

“Do we believe those most violent, vile offenses are occurring to our kids? No. And we actually have a lot of evidence showing that it’s not happening like that,” said Ted Martinez, executive director of residential operations for DCS. “Does this report raise questions as far as how we are looking at things and most importantly how our kids are perceiving some of these relationships? Absolutely.”

Under its sexual abuse investigation process, DCS is required to inform Metro police detectives, the district attorney’s office and a youth advocacy group ...

Fake Rape Claim Puts Woman in Prison

A New York woman who falsely claimed she had been raped was sentenced in February 2010 to 1 to 3 years in prison on perjury charges.

In 2005, Biurny Peguero Gonzalez told investigators that William McCaffrey, a Bronx construction worker, raped her at knifepoint. Gonzalez had accepted a ride from McCaffrey, who had a lengthy criminal record. But there was no rape. Instead, Gonzalez made up the incident to garner sympathy from her friends, who were mad at her for ditching them and leaving with McCaffrey.

McCaffrey was convicted and sentenced to 20 years. He served about three years before being released in December 2009 after Gonzalez admitted she had lied and DNA tests revealed that bite marks on her arm were not from McCaffrey.

“What happened in this case is one of the worst things that can happen in our criminal justice system,” stated Judge Charles Solomon, when sentencing 
Gonzalez.

McCaffrey said he wished Gonzalez “the best of luck,” and hoped she “doesn’t go through” what he went through in prison. He noted that someone who would “lie and paint somebody as a rapist is worse than a real rapist or a real murderer.”

McCaffrey also blamed “the ...

News in Brief:

Afghanistan: An Afghan prisoner being held at a U.S. military base attempted to escape on August 7, 2010, grabbing a rifle and fatally shooting two Marines before being killed by return fire. The location of the base was not disclosed.

Alabama: On August 17, 2010, Steven Giardini, a former Mobile County assistant district attorney who specialized in prosecuting sex crimes involving children, was arrested on enticement and solicitation charges. Giardini is accused of trying to sexually entice what he thought was a 15-year-old girl over the Internet, but he was actually in touch with an agent from the FBI’s Internet Crimes Against Children division. Giardini had resigned from the prosecutor’s office in April 2009 after his home was searched by FBI agents; the search warrant was sealed, so it is unknown what that investigation entailed. He was released on $250,000 bond on the enticement charges.

Bangladesh: In August 2010 government officials freed 1,000 prisoners serving life sentences (calculated at 30 years in Bangladesh), in order to reduce overcrowding in the nation’s prisons. Bangladesh has around 77,000 prisoners housed in 67 facilities designed to hold 28,000. The released prisoners included those who had ...

Limitations Period in Suit Over Delay in Providing Surgery Begins When Prisoner is Recommended for Surgery

The statute of limitations in a lawsuit claiming medical negligence by prison officials in delaying a prisoner’s surgery begins to accrue when the prisoner is first recommended for surgery by a specialist, the Appellate Division of the Superior Court of New Jersey decided on February 19, 2009.

Cecil Fearon, incarcerated at the East Jersey State Prison, sued Correctional Medical Services and five physicians for excessive delay in providing him with needed neck surgery. On April 28, 2004, Fearon was seen by a prison doctor and recommended for a consult with a neurosurgeon.

Fearon was seen by the neurosurgeon on June 22, 2004 and recommended for a cervical discectomy and fusion. No surgery was scheduled, however. Fearon was seen by the neurosurgeon again in April 2005, some ten months later, and again recommended for surgery. The surgery still was not scheduled until January 2006. The procedure was finally performed in January, but the delay caused Fearon’s condition to worsen and compromised the results of the surgery.

The defendants were successful in having the suit dismissed on statute of limitations grounds in Superior Court, arguing that the limitations period began to run on April 28, 2004 when Fearon was first ...

 

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