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Prison Legal News: March, 2010

Issue PDF
Volume 21, Number 3

In this issue:

  1. The Prison Industries Enhancement Certification Program: Why Everyone Should be Concerned (p 1)
  2. From the Editor (p 10)
  3. First Circuit Upholds $101,750,000 in Damage Awards in FBI Misconduct Case (p 10)
  4. Less Than Equal: State officials, including prejudiced human-rights commissioners, block Prisoner complaints (p 12)
  5. Prison Labor Bails Out State and County Budgets (p 14)
  6. All Eyes On the Court: An Interview with Attorney and Federal Court Monitor Fred Cohen (p 16)
  7. Cook County Strip, Body Cavity Searches Held Unconstitutional; Other Suits Pending (p 18)
  8. California Cuts Funding for Prop 36 Drug Treatment Programs (p 19)
  9. Michigan Study Shows Incarceration Can Cause Illness in Loved Ones (p 20)
  10. Conviction of CIA Contractor Who Fatally Beat Afghan Detainee Upheld on Appeal (p 20)
  11. Sexual Victimization Widespread in U.S. Correctional Facilities (p 22)
  12. Certificate of Merit in Medical Malpractice Suits Unconstitutional in Washington State (p 23)
  13. Illinois Prisoners Bilked Out of Millions Through DOC Commissary Surcharges (p 24)
  14. A Tight Leash: Judges Micromanage Federal Offenders After Release (p 24)
  15. Texas Counties Give Up on Probationer Restitution Centers (p 25)
  16. Prisoner Transport Guards Accused of Forcing Prisoner to Perform Sex Acts (p 26)
  17. Call Your Attorney from Jail, Go to Prison (p 26)
  18. Washington Sex Offender Relieved of Obligation to Register (p 27)
  19. Texas Youth Commission Causes Consternation, Conflict in State Legislature (p 28)
  20. Ninth Circuit Strikes Down BOP Rule Limiting Early Release for RDAP Participants (p 28)
  21. California Prisoner Settles Medical Suit for $35,000 (p 29)
  22. California Enacts Non-Revocable Parole And Increased Credits To Reduce Prison Population (p 30)
  23. New Orleans Jail Conditions Found Unconstitutional (p 30)
  24. Jury Awards $80,001 to New Hampshire Prisoner for Guard Beating (p 31)
  25. California Prison Erupts, Hundreds Hurt in Riot, Multiple Causes Cited (p 32)
  26. In Support of Ending Prosecutorial Misconduct (p 32)
  27. GEO Group Prison Squalor Drives Idaho Prisoner to Suicide: $100,000 Settlement (p 34)
  28. South Carolina Prisoner Does Easy Time (p 34)
  29. $100,000 Settlement in New York Prisoner’s Slip and Fall Claim (p 35)
  30. $750,000 Settlement in Alabama Prisoner’s Heat Death (p 35)
  31. Partial Summary Judgment Granted To PLN in FOIA Case against EOUSA (p 36)
  32. Shrinking Budgets Force States to Cut Corrections Spending (p 36)
  33. $60,000 Settlement for Washington Prisoner Injured by Chemical Spill (p 37)
  34. GEO Group Buys Just Care For $40 Million (p 37)
  35. Texas Religious Group Policies May Violate First Amendment and RLUIPA; TDCJ Changes Policy (p 38)
  36. $2.1 Million Awarded in New York Unjust Conviction Claim (p 38)
  37. Four-Year Statute of Limitations Applies to § 1983 Claims Filed in Florida (p 39)
  38. Washington DOC Ordered to Pay $174,000 for False Imprisonment (p 39)
  39. Canadian Appellate Court Affirms $12,000 Judgment for Prisoner (p 40)
  40. Eleventh Circuit Finds Administrative Remedies Unavailable When Prison Official Threatens Retaliation (p 40)
  41. $3.1 Million Settlement to Wrongly Convicted Massachusetts Prisoner (p 41)
  42. $80,000 Award in NY Prisoner’s Claim for Injuries Caused by Assault (p 42)
  43. $200,000 Settlement in Florida Prisoner’s Suicide Death (p 42)
  44. Texas Prison Guard Gets 24 Months in Federal Prison (p 42)
  45. Fourth Circuit: Heck Bar Inapplicable to § 1983 False Imprisonment Suit (p 43)
  46. Failure to Raise Issue in Rule 50 Motion Prohibits Argument on Appeal; $214,000 Verdict Upheld (p 44)
  47. Massachusetts GPS Program Upheld by State Supreme Court (p 44)
  48. Indiana DOC Directive Limiting Educational Credit to Only One Associate’s Degree Violates Ex Post Facto Clause (p 45)
  49. Assessment of Prison Account Without Seizure of Funds Implicates Due Process in Third Circuit (p 46)
  50. Tenth Circuit Reverses Dismissal of Failure to Protect Suit (p 47)
  51. Defendants Denied Qualified Immunity in Tennessee Jail Detainee’s Death (p 48)
  52. Ninth Circuit: California Jail Detainee’s Excessive Force Suit May Proceed (p 48)
  53. Texas to Eliminate Centralized Release of Prisoners (p 49)
  54. News in Brief: (p 50)
  55. Eighth Circuit Rejects Debt Offset of EAJA Fees; Supreme Court to Hear Case (p 55)

The Prison Industries Enhancement Certification Program: Why Everyone Should be Concerned

From the late 19th century into the depression years, Americans struggled economically. For the man and woman on the street to the businesses, companies and manufacturers vainly trying to keep their enterprises afloat, those were difficult times. States strained to overcome the desperate financial situation which held citizens captive as ...

From the Editor

The big news this month is that Prison Legal News is closing its Seattle office and consolidating its operations on the east coast in Vermont. We have had our Seattle office in 1996 and since 2004 have maintained offices in both Seattle and Vermont. The consolidation comes as part of ...

First Circuit Upholds $101,750,000 in Damage Awards in FBI Misconduct Case

by Matt Clarke

On August 27, 2009, the First Circuit Court of Appeals upheld an almost $102 million judgment in a lawsuit filed against the federal government after the FBI helped an informant secure the convictions of four men for a murder they didn’t commit.

In March 1965, Edward ...

Less Than Equal: State officials, including prejudiced human-rights commissioners, block Prisoner complaints

This story has a bias. It’s in favor of human rights for all people.

So if you think it’s proper for prison guards to call African-American prisoners “niggers” and gay prisoners “fags,” then this story may not be for you. If, however, you think that prisoners deserve to ...

Prison Labor Bails Out State and County Budgets

Across the nation, state and local governments are facing gaping holes in their budgets. As a result many are turning to cheap or free prison labor, and in some cases prisoners have taken the place of free-world citizens laid off due to budget cuts. State and local agencies have increasingly ...

All Eyes On the Court: An Interview with Attorney and Federal Court Monitor Fred Cohen

Most people familiar with prisoners’ rights issues know attorney Fred Cohen as an advocate for juvenile prisoners and prisoners with mental health issues. They have also seen his byline in the Correctional Law Reporter, which he co-founded more than 20 years ago, and followed his work as a Federal Court ...

Cook County Strip, Body Cavity Searches Held Unconstitutional; Other Suits Pending

On February 23, 2009, U.S. District Court Judge Matthew F. Kennelly granted partial summary judgment to the plaintiffs in a class action lawsuit challenging certain strip and visual body cavity searches conducted at Illinois’ Cook County Jail (CCJ).

The plaintiffs were separated into two classes. The Class I members ...

California Cuts Funding for Prop 36 Drug Treatment Programs

In an effort to trim a $26.3 billion budget deficit, California Governor Arnold Schwarzenegger slashed $90 million from a diversion program designed to offer certain non-violent drug offenders the opportunity to participate in substance abuse treatment instead of going to prison.

In 2000, in a rare show of rationality ...

Michigan Study Shows Incarceration Can Cause Illness in Loved Ones

A study, sponsored by the Centers for Disease Control and Prevention and released in December 2008, concludes that “Incarceration may not only affect those individuals incarcerated, but also those family members and friends left behind in the community.”

In a unique approach to the study of the disparity of physical ...

Conviction of CIA Contractor Who Fatally Beat Afghan Detainee Upheld on Appeal

On August 10, 2009, the Fourth Circuit Court of Appeals upheld the conviction of a CIA contractor who beat to death a detainee at a U.S. military outpost in Afghanistan. The contractor’s sentence was reversed due to an error in the enhancement level.

In 2001, the U.S ...

Sexual Victimization Widespread in U.S. Correctional Facilities

In a culture where it is socially acceptable for celebrities, advertisers and even movies to joke about the unfunny fact of prison rape, it should come as no surprise that almost 4% of prisoners in the United States have reported being sexually victimized while incarcerated.

As part of the Prison ...

Certificate of Merit in Medical Malpractice Suits Unconstitutional in Washington State

In 2007, Kimme Putman, a Washington state resident, filed suit against the Wenatchee Valley Medical Center and a number of its employees. Putnam’s lawsuit alleged negligence by medical personnel when they failed to properly diagnose her ovarian cancer in 2001 and 2002, while it was still in the early ...

Illinois Prisoners Bilked Out of Millions Through DOC Commissary Surcharges

Few prisoners would be shocked to learn that they are paying too much for items sold in prison commissaries or canteens. The Illinois Dept. of Corrections (IDOC), however, has taken commissary price-gouging to an extreme level.

In order to generate more revenue to help fund an over-capacity prison system, the ...

A Tight Leash: Judges Micromanage Federal Offenders After Release

The number of people serving terms of supervised release after leaving federal prison is creeping ever closer to 100,000. As judges and probation officers attempt to manage their growing caseloads, more and more judges are imposing supervised release conditions that unfairly restrict ex-prisoners from successful reentry.

The advent of ...

Texas Counties Give Up on Probationer Restitution Centers

by Matt Clarke

In the 1980s, faced with overcrowded prisons and probationers who often failed to pay their court-ordered fees and fines, some Texas counties came up with what sounded like a good idea: the Probationer Restitution Center (PRC). A PRC is essentially a group of dedicated jail beds used ...

Prisoner Transport Guards Accused of Forcing Prisoner to Perform Sex Acts

In June 2009, the District Attorney’s office in Santa Barbara, California filed charges against Roland Ygelsias and Miguel Jacobo, former employees of U.S. Extradition Services, a company that contracts with law enforcement agencies to transport prisoners to and from prisons and jails.

Ygelsias and Jacobo were accused of ...

Call Your Attorney from Jail, Go to Prison

by John E. Dannenberg

Jail prisoners in California, Florida, Michigan and Texas have unknowingly had their phone calls to defense attorneys secretly recorded and handed over to prosecutors. The recordings surfaced before trial, when prosecutors were required to divulge all the evidence they possessed to the prisoners’ lawyers.

Highly indignant ...

Washington Sex Offender Relieved of Obligation to Register

On September 9, 2008, following more than ten years of compliance with Special Sex Offender Sentencing Alternative (SSOSA) restrictions and guidelines, a Washington state trial court relieved Brian A. McMillan of his duty to register as a sex offender. The State of Washington appealed the court’s decision, arguing that ...

Texas Youth Commission Causes Consternation, Conflict in State Legislature

Last year, honoring the request of state Senator Juan “Chuy” Hinojosa, the Office of the Independent Ombudsman (OIO) of the Texas Youth Commission investigated the reason for the “alarming trend regarding adult certifications” of youthful offenders in Texas. What the OIO reported was a 31 percent increase, between 2007 and ...

Ninth Circuit Strikes Down BOP Rule Limiting Early Release for RDAP Participants

Following its recent decision in Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) [PLN, June 2009, p.44], the U.S. Court of Appeals for the Ninth Circuit struck down another federal Bureau of Prisons (BOP) rule that limits early release for certain prisoners who participate in the ...

California Prisoner Settles Medical Suit for $35,000

Eighteen months after surviving a motion for summary judgment, California prisoner William Milton agreed to a settlement of $35,000 in a case involving denial and delay of medical treatment. Though unpublished, the district court’s March 2007 order denying defendants’ motion for summary judgment includes an insightful discussion of ...

California Enacts Non-Revocable Parole And Increased Credits To Reduce Prison Population

by John E. Dannenberg

In what appears to be the first attempt to comply with federal court orders to reduce California’s prison population, the State Legislature enacted Senate Bill 18, which, effective January 25, 2010, places over 20% of the parole population on a new non-revocable parole (Penal Code ...

New Orleans Jail Conditions Found Unconstitutional

In June, August and November 2008, the Orleans Parish Prison (OPP) in New Orleans, Louisiana was the target of a U.S. Department of Justice investigation conducted by the agency’s Civil Rights Division.

Under the auspices of the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C ...

Jury Awards $80,001 to New Hampshire Prisoner for Guard Beating

On September 18, 2009, a federal jury awarded a New Hampshire state prisoner $80,000 in punitive damages for a violation of his Eighth Amendment rights, plus $1 in nominal damages.

While incarcerated at the New Hampshire State Prison for Men on December 20, 2003, Shawn Cheever was transferred to ...

California Prison Erupts, Hundreds Hurt in Riot, Multiple Causes Cited

On August 8, 2009, just days after a three-judge federal panel ruled that California’s prison system was dangerously overcrowded, a major riot erupted at the California Institution for Men at Chino, a prison about 40 miles east of Los Angeles.

The riot began in a 200-bed dorm and eventually ...

In Support of Ending Prosecutorial Misconduct

The Justice Project recently published its policy review concerning prosecutorial accountability in our nation’s criminal justice system. Entitled, Improving Prosecutorial Accountability, the report was prepared by the president of The Justice Project, John F. Terzano, Esq., along with Executive Director Joyce A. McGee, Esq. and Policy Coordinator Alanna Holt ...

GEO Group Prison Squalor Drives Idaho Prisoner to Suicide: $100,000 Settlement

On September 13, 2009, the Idaho Department of Corrections (IDOC) reached a settlement with the parents of an Idaho state prisoner who was driven to suicide by squalid conditions at a GEO Group-run private prison in Texas, where he had been transferred. The IDOC agreed to pay the prisoner’s ...

South Carolina Prisoner Does Easy Time

South Carolina state prisoner Kevin Bell, 42, breezed through the last six years of his sentence with the help of local law enforcement officials. In 1996, Bell began serving a 13-year prison term for cocaine trafficking. Six years later he was sent to the Cherokee County Detention Center, at the ...

$100,000 Settlement in New York Prisoner’s Slip and Fall Claim

The State of New York agreed to pay $100,000 to settle a prisoner’s slip and fall claim that occurred at the Groveland Correctional Facility.

The settlement comes in a claim filed by prisoner James Mahoney, who was assigned as a recreation aide between the hours of 7:00 ...

$750,000 Settlement in Alabama Prisoner’s Heat Death

A $750,000 settlement was paid to the mother of an Alabama mentally ill prisoner who died as the result of exposure to extreme heat while on psychotropic medication.

Just four days after his admission to Kilby Correctional Facility (KCF), prisoner Farron Barksdale, 32, was found unconscious in his segregation ...

Partial Summary Judgment Granted To PLN in FOIA Case against EOUSA

On September 16, 2009, U.S. District Judge Marcia S. Krieger granted in part and denied in part a motion for summary judgment by Prison Legal News (PLN) in a Freedom of Information Act (FOIA) case wherein PLN sought the disclosure of a gruesome video and autopsy photos related to ...

Shrinking Budgets Force States to Cut Corrections Spending

In a July 2009 report funded by the Public Safety Performance Project of the Pew Center on the States, author Christine S. Scott-Hayward examines how shrinking budgets are impacting state corrections policies and practices.

The story is in the numbers, and the numbers are staggering. More than one out of ...

$60,000 Settlement for Washington Prisoner Injured by Chemical Spill

The State of Washington paid $60,000 to settle a prisoner’s claim that he was injured due to a chemical spill.

While working in the kitchen at the McNeil Island Correction Center, prisoner George D. Douglas reached for a chemical bottle to clean stainless steel. The bottle was on ...

GEO Group Buys Just Care For $40 Million

Geo Group, Inc., one of the country’s largest private prison and detention operators, has agreed to acquire Just Care. Just Care operates a 354-bed medical and mental health care unit in Columbia, South Carolina.

In announcing the acquisition, GEO Group said it expected an additional $30 million in annual ...

Texas Religious Group Policies May Violate First Amendment and RLUIPA; TDCJ Changes Policy

The Fifth Circuit Court of Appeals held that Texas Department of Criminal Justice (TDCJ) policies that had the effect of prohibiting a prisoner from meeting with other members of his religion and possessing religious items may violate his rights under the First Amendment and the Religious Land Use and Institutionalized ...

$2.1 Million Awarded in New York Unjust Conviction Claim

On March 16, 2009, a New York Court of Claims awarded $2,093,420 in damages to a man who was wrongfully convicted of sexually assaulting his 4-year-old child. He had spent more than two years in a maximum-security prison.

During “an extremely unpleasant and highly bitter divorce and custody ...

Four-Year Statute of Limitations Applies to § 1983 Claims Filed in Florida

Four-Year Statute of Limitations Applies to § 1983 Claims Filed in Florida

The Eleventh Circuit Court of Appeals has held that 42 U.S.C. § 1983 actions filed in Florida have a four-year statute of limitations. The appellate court’s ruling reversed a Florida federal district court’s dismissal of a ...

Washington DOC Ordered to Pay $174,000 for False Imprisonment

A Washington state woman has been awarded $174,000 in damages after the Washington Department of Corrections (DOC) miscalculated her sentence, causing her to stay in prison an extra 18 months.

Melanie Hinkle was convicted of conspiracy to commit murder in the second degree and was sentenced to 120 months ...

Canadian Appellate Court Affirms $12,000 Judgment for Prisoner

On June 2, 2009, a Canadian appellate court affirmed a decision by Federal Court Prothonotary Martha Milczynski awarding $12,000 to Barry Carr, a federal prisoner.

Carr had accused Correctional Service of Canada (CSC) of negligence and breaching its duty of care to him while he was housed at Millhaven ...

Eleventh Circuit Finds Administrative Remedies Unavailable When Prison Official Threatens Retaliation

The Eleventh Circuit Court of Appeals has held that a prison official’s threat to retaliate against a prisoner for use of the institutional grievance procedure made the prisoner’s administrative remedies unavailable.

The appellate ruling came in a civil rights action filed by Georgia prisoner Willie Turner. He claimed ...

$3.1 Million Settlement to Wrongly Convicted Massachusetts Prisoner

On July 28, 2009, within weeks of settling a similar wrongful conviction lawsuit that resulted in a $3.4 million payment to the estate of Kenneth Waters, the town of Ayer, Massachusetts agreed to pay $3.1 million to settle a federal complaint brought by former prisoner Dennis Maher. PLN ...

$80,000 Award in NY Prisoner’s Claim for Injuries Caused by Assault

A New York Court of Claims has awarded $80,000 in damages to a prisoner at the Auburn Correctional Facility in connection with a prisoner-on-prisoner assault. Previously, in an October 1, 2007 order, the court found the State of New York 100% liable because the assault “was reasonably foreseeable and ...

$200,000 Settlement in Florida Prisoner’s Suicide Death

Florida’s Department of Corrections paid $200,000 to settle a lawsuit involving a prisoner’s suicide death. That settlement is the maximum allowed under law when suing a state agency.

Prior to his entry into prison, prisoner David Hansen had a history of mental illness, which included suicide attempts. His transition ...

Texas Prison Guard Gets 24 Months in Federal Prison

In August 2009, a former Texas Department of Criminal Justice (TDCJ) guard was sentenced to 24 months in federal prison in connection with a vicious assault on a handcuffed prisoner.

Eugene Morris, Jr., a TDCJ sergeant at the Ferguson Unit, was offended by prisoner Robert Tanzini’s use of a ...

Fourth Circuit: Heck Bar Inapplicable to § 1983 False Imprisonment Suit

Fourth Circuit: Heck Bar Inapplicable to § 1983 False Imprisonment Suit

The Fourth Circuit Court of Appeals has joined five other circuits in holding that a former prisoner’s § 1983 false imprisonment claim is not barred by the “favorable termination” requirement of Heck v. Humphrey, 512 U.S. 477 (1994).

Lee ...

Failure to Raise Issue in Rule 50 Motion Prohibits Argument on Appeal; $214,000 Verdict Upheld

The Sixth Circuit Court of Appeals has affirmed a jury’s verdict that found a municipality liable despite there being no finding of liability on the part of the individual defendants. The facts in this case involved a claim of deliberate indifference to a prisoner’s serious medical needs.

In ...

Massachusetts GPS Program Upheld by State Supreme Court

The Massachusetts Supreme Judicial Court vacated a lower court order which found that a sheriff had violated state law when he released sentenced prisoners on a GPS-monitoring program.

On March 8, 2007, Edward Donohue was convicted of his third drunk driving offense. Twelve days later, Middlesex Superior Court Judge Diane ...

Indiana DOC Directive Limiting Educational Credit to Only One Associate’s Degree Violates Ex Post Facto Clause

A directive issued by the Indiana Department of Corrections (IDOC) that limits the award of educational sentence credit to only one Associate’s Degree cannot be applied retroactively without running afoul of the ex post facto clause of the U.S. and state Constitutions, the Indiana Court of Appeals decided ...

Assessment of Prison Account Without Seizure of Funds Implicates Due Process in Third Circuit

In an important case of first impression, the U.S. Court of Appeals for the Third Circuit held that an assessment of a prisoner’s trust account without an actual seizure of funds implicates a property interest. On remand, however, the district court decided that the violation of that right ...

Tenth Circuit Reverses Dismissal of Failure to Protect Suit

The U.S. Court of Appeals for the Tenth Circuit has reversed the dismissal of a lawsuit filed by a Colorado prisoner who requested but was denied protection from prison gang members.

Scott L. Howard, a self-described “openly homosexual” prisoner of “slight build,” was a target from the moment he ...

Defendants Denied Qualified Immunity in Tennessee Jail Detainee’s Death

The Sixth Circuit Court of Appeals has held that a lower court improperly deferred a qualified immunity determination to the jury. The appellate court decided that jail guards, a jail physician and a paramedic were not entitled to qualified immunity in a Tennessee prisoner’s death, though qualified immunity was ...

Ninth Circuit: California Jail Detainee’s Excessive Force Suit May Proceed

by John E. Dannenberg

The Ninth Circuit Court of Appeals reversed a district court’s decision granting summary judgment to Orange County, California jail officials who allegedly used excessive force while restraining a detainee. The appellate court found that because there were triable issues of fact, summary judgment was not ...

Texas to Eliminate Centralized Release of Prisoners

By September 1, 2010, a long-standing Texas prison tradition will come to an end--the centralized release of prisoners.

The vast majority of Texas prisoners released each year--more than 42,000 in 2008--are processed out through a red-brick walled prison built in 1842 designated the Huntsville Unit that Texas prisoners call ...

News in Brief:

Australia: Ipswich resident Kurt James Milner, a former security guard, pleaded guilty in January 2010 to charges of possessing cartoon pornography. Police recovered 64 images of “cartoon child exploitation material” from Milner’s com-puter, including X-rated cartoon images of child characters from The Simpsons, The Incredibles and The Powerpuff Girls ...

Eighth Circuit Rejects Debt Offset of EAJA Fees; Supreme Court to Hear Case

The Eighth Circuit Court of Appeals has held that attorney’s fees awarded under the Equal Access to Justice Act (EAJA) may not be withheld to pay debts owed to the federal government.

South Dakota attorney Catherine G. Ratliff successfully represented two claimants in their efforts to obtain Social Security ...