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Prisoner Education Guide

Prison Legal News: April, 2010

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Volume 21, Number 4

In this issue:

  1. Appalling Prison and Jail Food Leaves Prisoners Hungry for Justice (p 1)
  2. From the Editor (p 8)
  3. Washington Jail a Modern-Day Debtor’s Prison (p 8)
  4. Food Problems Contribute to Riot at Kentucky Prison (p 10)
  5. Swine Flu Scare Leads to Unrest at Overcrowded Massachusetts Jail (p 11)
  6. Oklahoma Courts Collecting Fines, Costs at Expense of Justice (p 12)
  7. Illinois Prisoners Sue over Soy-Based Food (p 12)
  8. Parole Denials Based Upon Assumptions; Tough Policies Threaten Public Safety at Great Cost (p 13)
  9. CCA Loses Contracts for 9,754 Prison Beds in 18 Months; More Losses Looming (p 14)
  10. Missoula County Jail Agrees to Settle Excessive Force Suit for $490,000 (p 15)
  11. New York Passes Legislation Making HIV, AIDS and HCV Prisoner Care a Department of Health Responsibility (p 16)
  12. $491,668 Settlement in Class-Action Suit Against Spokane County Jail (p 17)
  13. Retired New York Supreme Court Justice Sentenced to Prison for Sex Trafficking (p 18)
  14. Crisis in Reverse: Counties Struggle with Dwindling Jail Populations (p 18)
  15. Florida Jail Prisoner Paralyzed by MRSA Sues Prison Health Services (p 19)
  16. Eighth Circuit: Shackling Pregnant Prisoner During Labor Unconstitutional (p 20)
  17. Indiana DOC Changes Sexually Explicit Publication Policy Due to Class-Action Suit (p 20)
  18. State of Washington Settles Parolee’s Unlawful Detention Suit for $39,695.10 (p 21)
  19. Son, Wife of U.S. Congressmen Get Prison Time (p 22)
  20. Death Row Prisoner Loses Suit Challenging BOP’s Ban on Face-to-Face Media Interviews (p 22)
  21. $300,000 Settlement in New York City Jail Prisoner’s Slip and Fall Accident (p 23)
  22. Arkansas Prisoner Almost Dies After Being Left in Feces (p 24)
  23. Virginia DOC K-9 “Training” Results in Animal Cruelty Charges (p 25)
  24. Kinship Care More Beneficial Than State Foster Care for Children of Incarcerated Parents (p 26)
  25. Illinois Prison Officials Fail to Report MRSA Infections (p 26)
  26. New York Voters Okay Prison Slave Labor for Nonprofits (p 27)
  27. Guards Suspended, Fired in Prostitution Probe at CCA-Run D.C. Jail (p 27)
  28. Indian Country Gets Stimulus Money ... to Build More Jails (p 28)
  29. Three Prisoners Raped at Oklahoma Governor’s Mansion (p 28)
  30. Washington DOC Agrees to Settle Inadequate Medical Care Suit for $55,000 (p 29)
  31. New Mexico Prisoner Vindicates Native American Religious Rights with Injunction, Fees and Damages (p 30)
  32. Florida County Jail Discontinues Medical Co-Pay Policy (p 30)
  33. Sex Addicted Ohio Sheriff’s Jail Supervisor Receives $1,000 Following Termination (p 31)
  34. Texas Tech and TDCJ Settle Prisoner Suicide Suit for $85,000 (p 31)
  35. Dying in Cell 40: Vermont’s Flawed Contract and Prison Health Service’s Drive for Profit Lead to Prisoner’s Death (p 32)
  36. Georgia Grand Jury Critical of Ticket-Fixing Scam (p 36)
  37. California AG’s Spokesman Resigns After Caught Taping Phone Conversations (p 37)
  38. Prison Incident and Investigative Reports Must Be Disclosed Under Alabama’s Open Records Act (p 38)
  39. Indiana Indemnification Statute Not Retroactive; Prisoner’s Estate Unable to Collect $56.5 Million Judgment (p 38)
  40. Prisoner Loses Excessive Force Case in 10 Minutes; Judge Deems Suit Frivolous, Orders $3,000 Paid to Defendants (p 39)
  41. 1979 Jail Consent Decree Largely Gutted by PLRA; Reversed on Appeal (p 40)
  42. Sweat Lodge Ban Does Not Violate RLUIPA (p 40)
  43. Washington State Agrees to Pay $15,000 to Probationer Whose Urine and Blood Were Forcibly Taken from Him (p 41)
  44. Texas Court of Appeals Reverses Dismissal of Prisoner’s Retaliation Suit; Second Dismissal Affirmed After Remand (p 42)
  45. Illinois Prison Doctor Liable for Failing to Treat Testicular Cysts (p 42)
  46. Oregon Private Jail Guard is “Corrections Officer”; Prisoner’s Assault Conviction Upheld (p 44)
  47. Virgin Island Officials Held in Contempt: Prisoner Mental Health Treatment Inadequate (p 44)
  48. $862,500 Settlement in Mentally Ill Ohio Jail Prisoner’s Death (p 45)
  49. Ninth Circuit: 42 U.S.C. § 233(a) Does Not Immunize Public Health Service Employees from Bivens Constitutional Tort Claims (p 46)
  50. NY DOCS Lacks Authority to Administratively Impose PRS – But State’s Liability Uncertain (p 46)
  51. The Real Cost of Prisons Comix, by Lois Ahrens, PM Press, 90 pages (p 48)
  52. California Prison Officials Settle Deliberate Indifference Suit for $12,000 (p 48)
  53. Over 10 Million in Prison Worldwide (p 49)
  54. Iowa Good Time Statute Violates Ex Post Facto Clause (p 49)
  55. News in Brief: (p 50)
  56. California: Demand for Speedy Trial Applies to Probation Violation Detainers (p 55)

Appalling Prison and Jail Food Leaves Prisoners Hungry for Justice

by David M. Reutter, Gary Hunter & Brandon Sample

Prison food. The very words conjure images of unidentifiable mystery meat, chili-mac, watery oatmeal and creamed chipped beef – the latter being commonly, though not very appetizingly, known as “shit on a shingle” in jailhouse parlance.

Before someone goes to prison or jail, what they eat is usually taken for granted. But behind bars, food becomes a serious issue. With the trend towards privatizing prison food services, plus economic pressures on state and local governments, there are growing concerns as to whether prisoners are receiving nutritionally adequate diets.

When confronted with jail or prison cuisine, prisoners have only three options: eating what is served or buying overpriced food items from the institutional canteen or commissary, assuming they have sufficient funds, or stealing prison food and preparing it themselves. Most prisons and jails use a rotating menu for their meals, with the same foods being served on a regular cycle. Others plan meals according to whatever foodstuffs can be purchased at the lowest price.

Over the past decade, prison and jail officials have been turning to private for-profit companies to cut the cost of feeding prisoners. Leading the way in contracted food ...

From the Editor

This is the first issue of PLN published from our new office location in Vermont. On March 16 a shipping truck arrived in Brattleboro with the bulk of our office on it. Thanks to volunteers Samual Schwartzkopf, Sam Phillips, Zach Phillips, Dan and Elizabeth and Sascha Bratton we were able to unload the entire truck in one day. As of this writing we are still in the process of unpacking and organizing the Brattleboro office so that all book and other sales will be shipped from here effective April 1. We have continued to process orders from a very downsized Seattle office during this transition. I would like to thank Christine, Danielle and Sam for the great jobs they did working for PLN and assisting in this transition and move.

After April 1 all mail sent to our Seattle address will be forwarded to Vermont. To avoid any delays please write to us directly in Vermont. The subscription insert cards in each issue will continue to use the Seattle address until they run out and we print new ones but readers should send them to the Vermont address listed in each issue of Prison Legal News for faster service.

For ...

Washington Jail a Modern-Day Debtor’s Prison

In Washington state’s Spokane County, some people are serving more jail time for failing to pay court costs than they served under their original sentence.

Michael Lafferty was sentenced to less than 90 days for a third-degree assault conviction. Court costs and restitution assessed by the Superior Court totaled $2,207; an additional 12 percent interest began to accrue on the costs the moment he was sentenced. Lafferty has long since completed his jail term. But because he didn’t pay the court fees he was jailed an additional 75 days. The way the law is being applied, Lafferty could literally be indebted to and imprisoned by the county for the rest of his life.

“From the outside looking in, it’s a modern-day debtor’s prison,” said John Rodgers, a Spokane County Public Defender.

According to a state study published in early 2009, the practice of incarcerating citizens who have defaulted on court costs is counterproductive in terms of reducing recidivism. Even people like Lafferty, with only a single conviction on their record, can become “ensnared in the criminal justice system long after they’ve completed their original sentences,” the study stated.

A quick calculation indicates that at ...

Food Problems Contribute to Riot at Kentucky Prison

by David M. Reutter

A major riot at Kentucky’s Northpoint Training Center on August 21, 2009 resulted in 16 injuries and the destruction of several buildings critical to the prison’s operation. The riot was the second serious incident at the facility in as many years, and both involved food-related issues. [See: PLN, Oct. 2009, p.40].

The disturbance occurred the same day that prison officials had started releasing prisoners following a three-day lockdown. After 10 to 15 Hispanic prisoners assaulted black and white prisoners on August 18, the facility was placed on lockdown during an investigation to determine who had participated in the attack.

The prison began a “controlled movement” schedule on the evening of August 21, 2009, allowing prisoners to enter the recreation yard on a dorm-by-dorm basis. Soon afterwards the prisoners began rioting and setting fires.

It took guards about two hours to regain control of the medium-security 1,200-bed facility. Eight guards and eight prisoners received minor injuries; four of the prisoners were hospitalized. Kentucky Justice and Public Safety Cabinet Secretary J. Michael Brown said the lack of serious injuries “was as close to a miracle as you can get.”

Six buildings were extensively damaged ...

Swine Flu Scare Leads to Unrest at Overcrowded Massachusetts Jail

by Matt Clarke

On July 5, 2009, prisoners at the Middlesex County Jail in Cambridge, Massachusetts staged a disturbance after 11 prisoners and 2 guards presented flu-like symptoms and the hospital discharge papers for one prisoner indicated probable H1N1 (swine flu). [See: PLN, Feb. 2010, p.1]. However, the Sheriff, jail officials and prisoner advocates said the root cause of the riot was overcrowding.

The 38-year-old jail occupies the 17th through 20th floors of the 22-story Edward J. Sullivan Courthouse, which is vacant except for the jail and the Sheriff’s Department. The facility was built to hold 160 prisoners, but the population routinely exceeds 400. The chapel, indoor gym, visitation room and some hallways have been converted to sleeping areas. On the day of the disturbance, the population stood at 403.

“The fact of the matter is the jails are brutally overcrowded in Middlesex County,” said Boston attorney David W. White, Jr., chair of the state bar association task force that released an April 2008 report on overcrowding. The report also noted that jail populations in Bristol, Essex and Suffolk Counties were well above their capacities.

According to the report, statewide jail populations increased 522% between 1980 and 2008 ...

Oklahoma Courts Collecting Fines, Costs at Expense of Justice

Oklahoma judges are pushing for larger fines imposed on criminal defendants to compensate for a shortfall in courthouse budgets.

The downturn in the economy has affected almost everyone, and the courts are no exception. Judges in Oklahoma have seen a 7 percent decrease in state funding for court operations. To deal with that shortfall, they are being encouraged to increase financial penalties and not forgive court costs. Further, offenders who receive probation are being required to pay larger fines.

The push to increase fines and ensure collection of court costs is being spearheaded by the Oklahoma Supreme Court. During workshops sponsored by the Supreme Court, judges have been encouraged to get “defendants to pay their fines, fees, and costs by credit card,” and to reject plea agreements that include low fines.

“I would suggest to you that a plea bargain that does not take into consideration the court which must accept it, ratify it and enforce it is one that should be looked at askance,” Chief Justice James E. Edmondson told judges in a pre-recorded video during the workshops.

Even crime victims are being put at the back of the line. During one workshop, judges were told they should reject ...

Illinois Prisoners Sue over Soy-Based Food

Prisoners at the Danville Correctional Center in Illinois have sued the Illinois Department of Corrections (IDOC) in federal court over the predominantly soy-based diet they are served.

According to the Weston A. Price Foundation, which promotes the consumption of whole, traditional and largely unprocessed foods, Illinois prisoners are being served “up to 100 grams” of soy protein a day. The USDA recommends no more than 25 grams of soy protein consumption daily.

“Beginning in January 2003, inmates began receiving a diet largely based on processed soy protein with very little meat. In most meals, small amounts of meat or meat by-products are mixed with 60-70 percent soy protein; fake soy cheese has replaced real cheese; and soy flour or soy protein is now added to most prison baked goods,” the foundation stated.

“Never before have we had a large population like this being served such a high level of soy with almost no other choice,” said Price Foundation President Sally Fallon Morell. She compared the soy-heavy diet in Illinois prisons to “torture,” and said it was “the Tuskegee of the 21st century,” likening it to the infamous government syphilis experiments performed on African Americans from the 1930s to the 1970s ...

Parole Denials Based Upon Assumptions; Tough Policies Threaten Public Safety at Great Cost

by David M. Reutter

“Inaccurate assumptions about the impact of longer prison stays on reoffense rates generally, and about the future behavior of people who committed assaultive and sex offenses in particular, have led us to routinely continue the incarceration of thousands of parole-eligible prisoners who would not have returned to prison in any event,” concludes an August 2009 report by the Citizens Alliance on Prisons and Public Spending. “The cost to those families and tax payers is enormous.”

The report, Denying Parole at First Eligibility: How Much Public Safety Does it Actually Buy?, examined 76,721 cases of Michigan prisoners sentenced to indeterminate terms after 1981 and released for the first time from 1986 through 1999. While the report is fact-specific to Michigan prisoners, its findings and conclusions should have widespread applicability, for human nature, after all, is universal.

The purpose of the report was to answer two important questions: (1) Does continuing to incarcerate people who have served their minimum sentence actually improve public safety and, if so, to what extent and to what cost? (2) Specifically, does denying parole at the minimum only to release a person a year or two thereafter have a substantial impact on ...

CCA Loses Contracts for 9,754 Prison Beds in 18 Months; More Losses Looming

Corrections Corporation of America (CCA), the nation’s largest private prison company, has lost or terminated contracts totaling 9,754 prison beds within an 18-month period, and is expected to lose at least 1,536 more contract beds by the end of this calendar year.

CCA announced on January 21, 2010 that based on the State of Arizona’s proposed budget, the company would lose its contracts to house Arizona prisoners at the company’s 752-bed Huerfano County Correctional Center in Colorado and its 2,160-bed Diamondback Correctional Facility in Oklahoma. Last year, CCA generated about $56.5 million in revenue from those contracts.

It has since been confirmed that the Huerfano contract, which expires in March 2010, will not be renewed; on March 4, CCA announced that the Diamondback facility would close within 60 days. Arizona officials have said they intend to return all of their prisoners from out-of-state facilities.

On January 13, 2010, CCA announced that the federal Bureau of Prisons had not renewed its contract to house prisoners at the company’s 2,304-bed California City Correctional Center. The contract, estimated at $553 million over ten years, instead went to competitor Cornell Corrections.

Previously, Alaska removed approximately ...

Missoula County Jail Agrees to Settle Excessive Force Suit for $490,000

Missoula County, Montana has agreed to pay $490,000 to a mentally ill woman who was shot six times by guards with a pepperball gun.

Sunny Bartell was arrested on July 1, 2006 for disorderly conduct after police were called by St. Patrick Hospital employees. Bartell has severe mental illness ...

New York Passes Legislation Making HIV, AIDS and HCV Prisoner Care a Department of Health Responsibility

New York took a major step last fall to provide care for HIV-positive prisoners—and a victory for prisoners’ rights activists—with legislation giving the state Department of Health an official oversight role in the HIV/AIDS and hepatitis care provided in prison. But it underlined a problem that concerns public health experts and criminologists: what happens to HIV-infected prisoners when they return home?

The failure of many of those prisoners to continue treatment after they leave prison is “both a public health and a public safety issue,” Prof. Roberto Hugh Potter, director of research at the University of Central Florida’s Department of Criminal Justice and Legal Studies, told The Crime Report. According to Potter, when former prisoners return to dangerous behaviors such as drug use and unprotected sex, it is more likely they will transmit the virus in potentially new and drug-resistant strains.

No one can be forced to continue HIV treatment after he or she leaves the prison system—unless it’s a condition of parole, Potter said. “The state has no more control over you, and that extends to health issues. It’s up to that individual.”

The scale of the problem is still unknown, but ...

$491,668 Settlement in Class-Action Suit Against Spokane County Jail

by Matt Clarke

On September 18, 2009, a U.S. District Court in Washington state granted preliminary approval to a settlement in a class-action lawsuit that challenged booking fee procedures at the Spokane County Jail.

Shawn Huss, a former jail prisoner, filed suit against Spokane County pursuant to 42 U ...

Retired New York Supreme Court Justice Sentenced to Prison for Sex Trafficking

by David M. Reutter

Retired New York Supreme Court Justice Ronald H. Tills, 74, has been sentenced to 18 months in federal prison for a felony charge of transporting prostitutes across state lines (a violation of the Mann Act). He began serving his sentence on October 1, 2009.

Tills’ long fall from grace, from a well-respected jurist known for imposing tough sentences to a federal prisoner, resulted following an investigation into the Royal Order of Jesters, a Masonic group that has 191 chapters and 22,000 members nationwide.

The probe, conducted by the Western New York Human Trafficking Task Force, began in late 2007 after federal agents learned that a judge and a police captain were among the customers of a Niagara County massage parlor that hired illegal immigrants to work as prostitutes.

At sentencing, U.S. District Judge William M. Skretny admonished Tills for victimizing the most vulnerable illegal immigrants, “the undocumented women involved in the sex trade.” One woman, Coco, barely spoke English and had been sold into sexual slavery. Tills took her across state lines to work at a Jesters convention in Kentucky.

Further, Tills reportedly engaged in a sexual relationship with a woman who appeared before ...

Crisis in Reverse: Counties Struggle with Dwindling Jail Populations

Morgan County, Missouri was in dire financial straits before contracting with U.S. Immigration and Customs Enforcement (ICE) to house immigration detainees at the county’s jail. For a while things were great – Sheriff Jim Petty replaced his worn-out police cruisers with new SUVs, upgraded the local jail and hired more deputies with funds received under the ICE contract.

Ten years ago Morgan County was having budget problems. “We needed a way to generate income,” said Petty. That’s when the county went into the ICE detainee lock-up business. “It wasn’t hitting the jackpot ... but [the contract has] given us a little freedom to operate the way we ought to be,” he stated.

ICE paid the county $65 per day per prisoner, as opposed to the $45 per day paid by surrounding counties. However, with the contract came obligations. For example, ICE required upgrades such as a recreation area, a dietician and a full-time nurse. Further, the county spent hundreds of thousands of dollars to expand its jail by 130 new beds.

The facility averaged 45 ICE detainees a day in 2008 and netted $1.1 million in profit. But things have since changed. The detainee population has dropped ...

Florida Jail Prisoner Paralyzed by MRSA Sues Prison Health Services

When Brett A. Fields entered Florida’s Lee County Jail to be booked on charges of criminal mischief, violating an injunction and probation violation, he was a healthy 26-year-old man. Within a month, according to a subsequent lawsuit, he was paralyzed due to grossly inadequate medical care by Prison Health Services (PHS).

Several days after being booked into the jail in July 2007, Fields requested medical attention for a wound on his left arm. A PHS nurse observed a red, swollen and pus-filled boil that she identified as a furuncle – a boil caused by staphylococci. She treated it with Bactrim, an antibiotic.

Two weeks later the boil had not healed. Fields requested medical care via an “Inmate Medical Request Form,” which was ignored by PHS and jail staff. In early August 2007, he began suffering from severe back pains, difficulty walking, numbness, weakness in his lower extremities and other symptoms. His pleas for medical treatment on August 6 were ignored, even though he stated he was having difficulty moving and had not urinated in days.

The next evening, Fields was finally examined by a PHS nurse. He explained his infection history and symptoms. The nurse arranged for him to see ...

Eighth Circuit: Shackling Pregnant Prisoner During Labor Unconstitutional

by Matt Clarke

On October 2, 2009, the Eighth Circuit Court of Appeals, sitting en banc, held that shackling a pregnant prisoner while she was in labor constituted cruel and unusual punishment in violation of the U.S. Constitution.

Shawanna Nelson was six months pregnant when she was sent to the Arkansas Department of Corrections (ADC) for a non-violent crime. She reported to the prison infirmary after she went into labor, and nurses arranged for her to be transported to a local hospital when her contractions reached five-minute intervals.

ADC guard Patricia Turensky, who drove the transport van, provided an armed escort. Her lieutenant ordered her to “RUSH [Nelson] to the hospital [and] to NOT take time for cuffs.” Instead, despite observing Nelson having severe contractions that rendered her incapable of walking, Turensky put Nelson in handcuffs.

Although Turensky never considered Nelson a security or escape risk, after arriving at the hospital she shackled Nelson’s legs to a wheelchair. Nelson was allowed to change into a hospital gown in the maternity ward, then Turensky shackled both of her ankles to opposite sides of a hospital bed. At that time, Nelson was in late labor.

Nurses had to repeatedly request ...

Indiana DOC Changes Sexually Explicit Publication Policy Due to Class-Action Suit

by David M. Reutter

The ACLU of Indiana has reached a private settlement agreement with the Indiana Department of Corrections (IDOC) in a class-action lawsuit that challenged a policy prohibiting prisoners from receiving sexually explicit materials or publications containing “graphic nudity.”

At issue was IDOC Administrative Procedure No. 02-01-103. The lawsuit alleged that portions of the procedure were unconstitutional. While not admitting it had violated any federal law, the IDOC agreed to change its policy to settle the case.

The settlement specifies that prisoners will not be allowed to receive publications that contain frontal nudity, but can receive magazines that depict people in lingerie or bathing suits. Such a result was necessary because “current case law does not, in my opinion, allow for a strong argument that there is a constitutional right to receive publications that contain pictures that regularly feature frontal nudity,” ACLU attorney Kenneth J. Falk informed the class members.

The new IDOC procedure contains examples of commercial magazines that prisoners can receive because they do not contain “depictions of nudity or sexually explicit conduct on a routine or regular basis or promote [themselves] based upon such depictions.” Examples include National Geographic; Our Body, Our Selves; swimsuit issues ...

State of Washington Settles Parolee’s Unlawful Detention Suit for $39,695.10

In February 2008, the state of Washington entered into a stipulated judgment to settle a lawsuit for damages filed in Pierce County Superior Court by Mark Stephen Rice. In settling the suit, which was filed in June 2007, the state of Washington paid Rice $30,000 plus costs and attorney ...

Son, Wife of U.S. Congressmen Get Prison Time

Jeffrey M. Rush, the son of U.S. Representative Bobby L. Rush (D-Ill.), was sentenced in October 2008 to serve six months behind bars plus three years on probation for having sex with female prisoners at the Fox Valley Adult Transition Center in Aurora, Illinois. He had been employed as the assistant supervisor of security at the facility, and was fired on September 10, 2007. His father had helped him get the job at Fox Valley.

Jeffrey Rush pleaded guilty to three counts of official misconduct, two of which related to sexual encounters with prisoners between February 1 and June 2007. The sex acts reportedly occurred outside the facility, with prisoners who were granted passes to leave the prison.

“Mr. Rush engaged in a pattern of conduct abusing his position of trust with the Illinois Department of Corrections for his own sexual gratification. This sentence sends a clear message that this type of conduct will not be tolerated,” said Justin Fitzsimmons, the state prosecutor who handled the case.

“As a father, I am deeply disturbed and saddened by the allegations against my son Jeffrey,” said Rep. Rush. “Throughout my life, the welfare of those on various ends of the criminal ...

Death Row Prisoner Loses Suit Challenging BOP’s Ban on Face-to-Face Media Interviews

On January 15, 2008, the Seventh Circuit Court of Appeals held that a jury could conclude the Bureau of Prisons’ (BOP) ban on face-to-face media interviews with death row prisoners was based not on legitimate security threats, but because policymakers did not want such prisoners to promote a “glamorization of violence.”

The appellate court found the BOP’s policy could eliminate any meaningful access to the media in violation of the First Amendment and the Equal Protection Clause. However, that decision was reversed by an en banc ruling, and the U.S. Supreme Court subsequently denied the prisoner’s certiorari petition.

The Seventh Circuit made its initial findings in an appeal filed by federal death row prisoner David Paul Hammer, which ensued after an Indiana U.S. District Court granted summary judgment to the BOP and prison officials in his challenge to the ban on face-to-face media interviews.

Hammer was among the first prisoners incarcerated at the Special Confinement Unit (SCU), which houses federal death row prisoners in Terre Haute, Indiana. When Hammer gave three face-to-face interviews with media agencies between August and December 1999, there were no security problems. In late December 1999, he was instructed by prison officials ...

$300,000 Settlement in New York City Jail Prisoner’s Slip and Fall Accident

The City of New York paid $300,000 to settle a prisoner’s slip and fall injury. The settlement came after a jury was picked for trial.

As prisoner Troy Washington was walking back to his cell at the Rikers Island jail, he slipped and fell in a puddle of ...

Arkansas Prisoner Almost Dies After Being Left in Feces

An Arkansas prison guard who had been previously fired and rehired by the state’s prison system was terminated a second time after he was involved in an incident that almost resulted in a prisoner’s death.

On June 22, 2009, the Associated Press reported that Sergeant Bobby Lunsford and Lieutenant John Glasscock were fired after it was discovered they had knowingly left a prisoner naked and covered in his own feces in his cell at the Tucker Unit prison for an entire weekend.

The prisoner, whose name was withheld, was later transferred to a hospital and placed on life support. He was suffering from septicemia and septic shock due to infections that reached his blood stream as a result of the unsanitary conditions.

Sgt. Lunsford had been fired by the Arkansas prison system in February 2002 after he accepted several Hot Pockets microwave sandwiches from a prisoner that had been stolen from a prison chaplain, and then lied about the incident. “Behavior such as this by a sergeant in the Arkansas Department of Correction is inexcusable,” wrote Warden Grant Harris in a letter terminating Lunsford. “You are required to lead by example and enforce policy. You have failed with ...

Virginia DOC K-9 “Training” Results in Animal Cruelty Charges

by David M. Reutter

The training of a dog as a law enforcement K-9 unit requires hours of dedication and bonding between the animal and its handler. It appears that guards with the Virginia Department of Corrections (VDOC) believed in using a “hands on” approach when it came to the bonding part. In fact, their method of training bordered on bestiality.

On October 2, 2009, Powhatan County Commonwealth Attorney Robert B. Beasley, Jr. filed misdemeanor animal cruelty charges against Green Rock Correctional Center guard Kelvin Thompson, former Sussex County Prison guard Melvin Boone, Nottoway Correctional Center guards Adam R. Webb and Cheri Campbell, and former Nottoway Sgt. Anthony Eldridge.

An unidentified VDOC employee had filed a complaint after watching a video of K-9 training at the department’s Academy for Staff Development, and an investigation ensued. Apparently, the employee was appalled by the technique used by some VDOC guards to train dogs to love and obey their handlers. In fact “handlers” was a particularly appropriate term.

In the video, Thompson “allegedly had some sexual contact with the animal,” said Beasley. “Essentially, he was touching the dog’s penis with his hand. The others were filming it. That’s actually how ...

Kinship Care More Beneficial Than State Foster Care for Children of Incarcerated Parents

Published in May 2009, Kinship care when parents are incarcerated: What we know, what we can do, is an in-depth examination of current statistical and practical information regarding the plight of children with one or more incarcerated parents, the caregivers charged with their welfare and the government agencies and officials attempting to oversee the relationships between the two. The research was prepared for the Annie E. Casey Foundation by Creasie Finnie Hairston, Ph.D., who is Dean and Professor at Jane Addams College of Social Work, University of Illinois at Chicago.

The purpose of the report is to highlight the many and varied difficulties faced by a growing number of American children and their caregivers. The report points out there are over 1.7 million children in the U.S. who have a parent incarcerated. Although most of the children are in the care of relatives, many are in foster care in the custody of the child welfare system. It appears the most common caregiver for children of incarcerated parents are grandparents. These kinship care providers, be they grandparents, aunts, siblings, cousins, or other relatives or family friends, are becoming increasingly aware of the myriad effects the new social situations ...

Illinois Prison Officials Fail to Report MRSA Infections

Recognizing that Methicillin Resistant Staphylococcus Aureus (MRSA) is rampant in Illinois’ prison system, and that MRSA poses a threat to guards and visitors as well as prisoners, Illinois legislators enacted a law, effective March 3, 2008, that requires prison officials to report MRSA outbreaks to state and local health authorities. Prison officials, however, have failed to file most of the required reports.

An August 2009 article in the Belleville, Illinois News-Democrat changed that situation by exposing it. Following an investigation by the newspaper, officials with the Illinois Department of Corrections (IDOC) announced they would strictly comply with the MRSA reporting law, despite reservations.

“We have concerns about the notification process,” said IDOC spokeswoman Dede Short. “What we are going to do is ask the prisons that they follow up with written notification to the local health departments. We are going to reach out to staff and make sure that they follow up. But our first priority is treating symptoms.”

Critics, however, countered that the IDOC’s priority was in hiding the scope of the MRSA problem. “It is rampant in the prison system and they’ve been covering it up,” said Jeanine Thomas, founder of the MRSA Survivor’s Network ...

New York Voters Okay Prison Slave Labor for Nonprofits

New York voters have approved an amendment to the New York constitution that permits state and county prisoners to work “voluntarily” for nonprofit organizations.

The amendment was largely sought in order to provide an air-tight defense to potential lawsuits surrounding the practice.

Non-profit organizations, according to the amendment, are defined as “an organization operated exclusively for religious charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual.”

In spite of the amendment’s passage, it is unlikely many prisoners will be doing work for non-profits anytime soon due to budgetary constraints facing the New York Department of Corrections (DOC).

Communities that used to rely on prison labor to clean parks, cemeteries and other places are being hit hard because of the decrease in work crews.

“The cemeteries aren’t getting done. They’re not being raked and cleaned. I don’t have the staff. That’s going to have to be done in the spring. It’s going to be much harder if we don’t get it done now,” said Kirklin Woodcock, Highway Superintendent for Mount McGregor. Only state-run sites, such as the Saratoga Spa State Park ...

Guards Suspended, Fired in Prostitution Probe at CCA-Run D.C. Jail

In June 2009, a District of Columbia jail sergeant and two lieutenants were placed on paid leave during an investigation into allegations that the sergeant paid a pimp to have sex with a jailed prostitute. One of the lieutenants was later fired for unrelated reasons.

Jessica Rubio, 32, is a self-described prostitute and drug addict. She was arrested for prostitution and incarcerated at the Correctional Treatment Center annex of the D.C. Jail in Washington, D.C. when corrections counselor Sgt. Aundra Powell allegedly paid her pimp $50 to have sex with her. The pimp gave Rubio a receipt, which she showed to Powell. Powell then reportedly took Rubio to a satellite kitchen and had sex with her. This occurred four times.

Rubio was released, but re-arrested and again convicted of prostitution in June 2009. At that time, D.C. Department of Corrections investigators questioned her about her relationship with Powell. After she told them about the paid sexual encounters, she was transferred to the Rappahannock Regional Jail in Virginia.

Powell, assistant shift supervisor Lt. Ricardo Rich and an unidentified substance abuse counselor were immediately placed on paid leave. Rich was fired for unrelated reasons in June 2009. The Treatment ...

Indian Country Gets Stimulus Money ... to Build More Jails

by David M. Reutter

The U.S. Department of Justice, through the Obama administration’s American Recovery and Reinvestment Act, has brought stimulus money to Indian reservations – awarding $224 million to build and renovate tribal jails. The funding comes after years of unsuccessful lobbying efforts by Native American leaders.

The Justice Department is responsible for building detention facilities on land overseen by the Bureau of Indian Affairs (BIA), which is responsible for running the facilities as part of its mission to carry out the federal government’s trust responsibility to Native Americans. The jails only house misdemeanants, as felonies are prosecuted in federal court.

The problems faced by tribal officials are many and substantial, and the Navajo Nation, located on a 27,000-square mile reservation that straddles Arizona, New Mexico and Utah, is illustrative.

Navajo officials say they are dealing with record-high gang activity and are battling chronic alcoholism and substance abuse that make domestic violence and drunk driving offenses common. With only 59 jail beds available in the Navajo Nation for almost 56,000 arrestees a year, the tribal jails have revolving doors.

“We’re always playing musical chairs – or musical jails beds,” said Delores Greyeyes, head of the ...

Three Prisoners Raped at Oklahoma Governor’s Mansion

In October 2009, news agencies reported that three female prisoners had claimed they were raped by employees at the Oklahoma Governor’s mansion. A three-month investigation by the Oklahoma Dept. of Corrections (ODOC) concluded the head chef and groundskeeper at the mansion had sexually assaulted the women.

The three prisoners were part of an 11-member work crew from the Hillside Community Corrections Center. The horticulture program at the prison chose them to maintain the flower beds, shrubs and other greenery at the Governor’s mansion because they were minimum security and low escape risks.

While the alleged rapes occurred between March 2008 and January 2009, the ODOC investigation did not begin until June 1, 2009. The delay was attributed to the prisoners’ fear of retribution. Upon her release, one of the women reported that she had been raped. A second prisoner made similar accusations after she was later released.

Some of the sexual assaults occurred in a storage building outside the perimeter fence that encircles the mansion’s 14-acre grounds. “My client was dragged down,” said attorney Janet Roloff. “She’s told me that she was raped and that it was a brutal bloody rape. She was raped by two ...

Washington DOC Agrees to Settle Inadequate Medical Care Suit for $55,000

The State of Washington has agreed to settle a prisoner suit alleging deliberately indifferent medical care. The suit, filed in 2006, took almost two years to resolve.

Richard Hibdon sued the Stafford Creek Corrections Center, a Washington Department of Corrections facility, after he was given inadequate care for his back ...

New Mexico Prisoner Vindicates Native American Religious Rights with Injunction, Fees and Damages

A New Mexico prisoner has prevailed in a religious freedom case that vindicated his right to practice his Native American beliefs. The lawsuit resulted in a settlement in April 2009 that specified the religious practices prison officials must allow, as well as nominal damages, costs and attorney fees.

New Mexico ...

Florida County Jail Discontinues Medical Co-Pay Policy

by David M. Reutter

Saying it was “not even worth it” to collect an $8 medical co-payment from prisoners seeking medical care, Florida’s Pinellas County Sheriff Jim Coats has abolished the practice at his jail. In these tough economic times that have squeezed budgets, it is surprising Coats would forfeit $50,000 in annual revenue.

Jails and prisons across the nation have turned to co-pays. Officials say it reduces bogus ailments. “The money obviously is a big part…but the other side of it is there are some inmates who would go to the doctor every day,” claimed Florida Department of Corrections (FDOC) spokeswoman Gretl Plessinger. “And if they have a medical need, they need to go, we want them to go. But this minimizes inmates who might be trying to game the system.”

When Pinellas County began its co-pay system in 1995, it said demand for medical care by prisoners was reduced by half. Paperwork related to the program, however, caused a bureaucratic nightmare. With over 350,000 prisoner medical visits in 2008, the co-pay required more time than it was paying for.

“The administrative reviewing and tracking of all that cost us more than we make,” said ...

Sex Addicted Ohio Sheriff’s Jail Supervisor Receives $1,000 Following Termination

Ohio’s Warren County Sheriff’s Office has agreed to pay $1,000 to settle a lawsuit filed by a former jail supervisor who was fired for viewing pornography and masturbating at work.

A 2006 investigation of former Lieutenant Shaun Wells resulted in an internal computer audit that uncovered rampant ...

Texas Tech and TDCJ Settle Prisoner Suicide Suit for $85,000

On April 2, 2009, Texas Tech University Health Science Center (TTUHSC) and the Texas Department of Criminal Justice (TDCJ) settled for $85,000 a lawsuit involving a prisoner who committed suicide at the Clements Unit.

Theodore Schmerber was a Texas state prisoner when he committed suicide by tearing a damaged ...

Dying in Cell 40: Vermont’s Flawed Contract and Prison Health Service’s Drive for Profit Lead to Prisoner’s Death

Ashley Ellis’ misdemeanor arrest turned into a death sentence. Her crime was careless and negligent operation of a motor vehicle. On Aug. 16, 2009, less than two days after she began a 30-day sentence at Vermont’s only prison for women, she died from the careless and negligent operation of a privatized, for-profit prison health care system.

“It is a pretty blatant and obvious and extreme case of gross negligence,” said Seth Lipschutz, supervising attorney at the Vermont Defender General’s office. “We figured out in a day that they killed her.”

In January 2010, when Tennessee-based Prison Health Services (PHS) left Vermont under a cloud, the state hired the fifth private company in 14 years to run its prison health care system. The contract was expanded to absorb mental health functions.

Vermont’s serial contracts with for-profit corporations follow a nationwide pattern: Oversight is flawed, prisoner care is stingy, contractors are indifferent to or insulated from lawsuits, and states switch providers when trouble hits. Meanwhile, a fundamental conflict remains: A for-profit system thrives by cutting costs and services, while sound prisoner and public health care principles demand that careful medicine comes first.

Ashley Ellis’ tragic death throws the nature ...

Georgia Grand Jury Critical of Ticket-Fixing Scam

A Grand Jury in Georgia’s DeKalb County found that the County Recorder’s Court suffered from “a leadership competency issue.” The Grand Jury’s review of the court followed a scandal that cost the county millions of dollars plus the court’s credibility and reputation.

A fraud operation by low-level court employees and other individuals involved a ticket-fixing scheme. As part of the scam, court workers lied to judges, falsely telling them that police officers who issued the tickets had authorized downgrading them from fines to warnings. The operation ran from July 2005 to January 2008, and included fixing traffic tickets as well as codes violations.

Two of the eleven people indicted in the scheme pled guilty in September 2009. The court’s former tribunal technician, Charlene N. Johnson, received one year in jail for two counts of violating the Georgia Racketeer Influenced and Corrupt Organizations Act. She admitted to charging fees to dismiss tickets, and was ordered to pay $20,000 in restitution. Other court employees who were indicted included Stephan Roberts and Adrian Andrews; former court employee Vanessa Adel and former DeKalb probation office employee Tanzey Swankey were charged in individual ticket fixing cases.

“Clearly, no ‘check ...

California AG’s Spokesman Resigns After Caught Taping Phone Conversations

Just days after being accused of violating state law by secretly recording telephone conversations with reporters, Scott Gerber resigned from his position as communications director for California Attorney General Jerry Brown.

In a move fit for airing on an episode of “America’s Dumbest Public Officials,” Gerber – who, one would think, should have known better – sent a transcript of one of his secretly recorded conversations with a reporter to an editor at the reporter’s newspaper. He did so, apparently, because he didn’t agree with some of the statements in an article posted on the paper’s website that included quotes from the conversation.

Then, in a refreshing display of candor, or perhaps just naiveté, Gerber acknowledged that he had recorded conversations with other reporters without obtaining their permission. “Sure, I’ve done it before,” he told the San Francisco Chronicle, which broke the story of the secretly recorded conversations on October 30, 2009.

California is one of only a dozen states that prohibit the taping of phone calls without the consent of all parties involved (Cal. Penal Code § 632). When asked why he had recorded the conversation with the Chronicle reporter, Gerber said, “To me, it’s useful ...

Prison Incident and Investigative Reports Must Be Disclosed Under Alabama’s Open Records Act

by David M. Reutter

The Alabama Supreme Court affirmed a trial court’s summary judgment order that held incident and investigative reports created by the Alabama Department of Corrections (ADOC) are subject to the state’s Open Records Act.

Beginning in October 2006, the Southern Center for Human Rights (SCHR) began seeking incident reports regarding assaults and murders of several prisoners at the Donaldson Correctional Facility (DCF). Following considerable haggling, in April 2007 the ADOC finally provided the SCHR with a summary of certain incidents.

After prisoner Farron Barksdale died under unknown circumstances, his mother requested incident reports and other records regarding his death. The ADOC refused to produce the documents on the grounds they were part of a prisoner’s file that could only be released by court order or to persons who are “criminal justice types.”

The SCHR, representing six prisoners at DCF, along with Barksdale’s mother, filed suit under the state’s Open Records Act to compel disclosure of the documents. The trial court ordered production, allowing the ADOC to “redact sensitive information on a case by case basis if the [commissioner] reasonably believes the release of information will subject a person to specific threat or ...

Indiana Indemnification Statute Not Retroactive; Prisoner’s Estate Unable to Collect $56.5 Million Judgment

by David M. Reutter

The Seventh Circuit Court of Appeals has held that a 2003 Indiana statute that requires indemnification of government employees under certain circumstances has prospective application only.

Before the Court was an appeal by the Estate of Christopher Moreland, which had filed a motion for a writ of execution to enforce a judgment against St. Joseph County, Indiana and its Board of Commissioners. The motion was denied by the district court.

In May 2002, Moreland’s estate obtained a $56.5 million damage award against St. Joseph County jail guards Erich Dieter and Michael Sawdon. $29 million of the verdict was for compensatory damages. The Seventh Circuit noted that “Moreland’s beating and subsequent denial of medical care spanned multiple floors of the jail, lasted several hours, and was ruthless.” Moreland died in the jail’s drunk tank after being “left for dead.” [See: PLN, Dec. 2005, p.40; Feb. 2003, p.21].

The estate’s motion was based on a 2003 amendment to Indiana Code § 34-13-4-1, which had two noteworthy features. “First, in certain cases and subject to a $300,000 cap, the code requires a governmental entity to indemnify its public employees for compensatory damages ...

Prisoner Loses Excessive Force Case in 10 Minutes; Judge Deems Suit Frivolous, Orders $3,000 Paid to Defendants

Christopher Bookhart had a fool for a client when he represented himself in an excessive force suit he filed against a guard at the Multnomah County Detention Center (MCDC) in Portland, Oregon.

Bookhart, 45, had sued MCDC guard Steven Meyer, alleging that Meyer had punched him in the chest without provocation on August 13, 2006. Bookhart also alleged that on November 6, 2006, an unidentified guard had injured his wrist by cinching his handcuffs too tight, creating a 1-inch scar. He sued for $11,110 in damages.

Bookhart represented himself during a two-day trial, during which he pointed his finger at witnesses as he questioned them and interrupted and argued with presiding Multnomah Circuit Court Judge Michael McShane.

The trial appeared to try McShane’s patience; he closed his eyes at times and breathed deeply while Bookhart repeatedly asked him what he should do next. There was a chorus of objections from the defense attorney.

Meyer admitted that he touched Bookhart, but insisted he had only tapped him lightly with a closed fist in a jovial manner. Another guard corroborated Meyer’s version of the incident. Meyer also claimed he wouldn’t have assaulted a prisoner when 15 to 20 ...

1979 Jail Consent Decree Largely Gutted by PLRA; Reversed on Appeal

On October 7, 2008, a federal court in New York terminated large portions of a sweeping 1979 consent decree related to conditions at 14 New York City jails. However, the Second Circuit Court of Appeals reversed that decision in November 2009, with instructions to afford the plaintiffs an opportunity to conduct discovery to determine whether there were continuing constitutional violations.

In 1979, a class of pretrial detainees entered into consent decrees with government officials to resolve litigation over conditions in New York City jails. See, e.g., Benjamin v. Horn, 2008 WL 2462027.

In 2000 the defendants moved to terminate the environmental health provisions of the consent decrees. The motion was granted in part by Benjamin v. Fraser, 161 F.Supp.2d 151 (S.D. NY 2001) and Benjamin v. Fraser, 2001 WL 282705 (S.D. NY 2001). However, an “Environmental Order, issued April 26, 2001, provided prospective relief for the constitutional violations that remained ongoing.”

The defendants then moved, pursuant to the Prison Litigation Reform Act (PLRA), to terminate the remaining provisions of the Environmental Order, which governed sanitation and cleaning (Paragraphs 11 and 19); food storage containers (Paragraph 13); and temperature and temperature monitoring at the jails (Paragraph ...

Sweat Lodge Ban Does Not Violate RLUIPA

The Eighth Circuit Court of Appeals affirmed a lower court’s determination that denial of a sweat lodge for Native American prisoners did not violate the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Missouri prisoner Clifford Fowler, a Native American, is serving life without parole at the maximum-security Jefferson City Correctional Center, which houses 2,000 prisoners who “have been convicted of committing serious felonies, or acts of violence while incarcerated.”

Fowler requested that prison officials provide a sweat lodge for Native American prisoners to use at least 17 times a year – once each month, at each solstice and equinox, and for an annual celebration. Prison officials refused and Fowler filed suit, claiming the denial of a sweat lodge violated RLUIPA (42 U.S.C. §§ 2000cc-1).

The district court granted summary judgment to prison officials, concluding that it was bound by Hamilton v. Schiro, 74 F.3d 1545 (8th Cir. 1996), which found that the denial of a sweat lodge to another Missouri prisoner did not violate the Religious Freedom Restoration Act (RFRA), the predecessor of RLUIPA. The RFRA was struck down by the U.S. Supreme Court in 1997 for claims brought by state prisoners. [See: PLN, Dec ...

Washington State Agrees to Pay $15,000 to Probationer Whose Urine and Blood Were Forcibly Taken from Him

The State of Washington has agreed to pay $15,000 to settle a suit over the forcible taking of urine and blood samples from a Washington probationer.

Matthew Arthur was arrested for DUI on November 30, 2005. Cowlitz County deputies took Arthur to a local hospital where Kevin Rentner, an ...

Texas Court of Appeals Reverses Dismissal of Prisoner’s Retaliation Suit; Second Dismissal Affirmed After Remand

by Matt Clarke

A Texas Court of Appeals reversed the dismissal of a prisoner’s lawsuit alleging that he suffered retaliation for litigation activities. However, after the case was again dismissed following remand, the appellate court affirmed the dismissal based on untimely service of process.

William Espinoza Pena, a Texas state prisoner, filed suit in state district court under the Texas Tort Claims Act (TTCA), § 101.001 et seq., Texas Civil Practice & Remedies Code (TCP&RC), and 42 U.S.C. § 1983, alleging that while he was incarcerated at the Beto Unit, prison officials conspired to retaliate against him for his “prolific practice as an inmate-writ-writer / jailhouse lawyer.”

Specifically, Pena claimed that Captain David W. McDowell ordered him to move his property from one part of the prison to another. He informed McDowell that he was a “Disabled ... veteran” and would need assistance or the use of a cart to safely move his property, but McDowell ordered him to move it without assistance or a cart and threatened to mace him if he did not comply. Pena alleged he severely injured his back moving the property and that prison officials covered up the retaliation.

Without a hearing and prior to service of process, the trial court dismissed Pena’s lawsuit as frivolous and malicious. He appealed.

Noting that the defendants had not even filed a brief, the Court of Appeals held that Pena’s equal protection and due process claims under the Texas and U.S. Constitutions were not properly briefed and contained no citations, leaving nothing for review. The appellate court also rejected Pena’s argument that the lower court had to hold a hearing before dismissing his suit as frivolous and malicious, finding that a trial court may dismiss a prisoner’s lawsuit without a hearing if it has no arguable basis in law.

The Court of Appeals upheld the dismissal of Pena’s state-law-based claims against the prison system (TDCJ) and prison officials in their official and individual capacities due to sovereign immunity. It ruled there was no waiver of immunity under the TTCA because the threat to use mace did not constitute its use. The Court further held that the dismissal of Pena’s claims extended to requests for declaratory and injunctive relief, as they were attempts to control the actions of the State. It also upheld the dismissal of his federal claims against the TDCJ and prison officials in their official capacities because they were not “persons” who could be sued under 42 U.S.C. § 1983.

However, Pena’s claims against prison officials in their individual capacities for money damages and declaratory relief, for allegedly retaliating against him and covering up the retaliation, were facially valid causes of action which should not have been dismissed. Without expressing an opinion about the merits of the claims, the Court of Appeals held that the trial court had abused its discretion when it dismissed those claims at such an early point in the proceedings.

Therefore, the appellate court upheld the dismissal of all of Pena’s other claims and reversed the dismissal of the retaliation claims against prison officials in their individual capacities seeking monetary damages and declaratory relief. See: Pena v. McDowell, Tex.App.-Tyler, Case No. 12-05-00116-CV; 2007 WL 949614.

The case was returned to the trial court for further proceedings and Pena was released from prison several months later. He moved for a Spears hearing, and the trial court conducted a status hearing on July 31, 2008. Citations (equivalent to summons) were issued to the defendants, who moved to dismiss based on untimely service of process. The trial court then dismissed Pena’s suit with prejudice on Sept. 25, 2008, pursuant to TCP&RC, chapter 14. He again appealed.

The Court of Appeals considered Pena’s arguments as to how the trial court had erred in dismissing his suit based on untimely service. “When a suit is timely filed, as in the case at hand, but the defendant is not served until after the limitations period expires, the date of service relates back to the date of filing if the plaintiff exercised diligence in effecting service,” the Court held. There was a 15-month delay between when the Court of Appeals issued its prior appellate ruling and when Pena had obtained service on the defendants following the status hearing before the trial court.

Pena presented evidence that he had been hospitalized during that time period. However, the Court of Appeals noted that “despite his hospitalization, Pena sought to obtain discovery from the office of the Attorney General and notified the court of changes of address. Yet, there is no indication from the record that Pena made any effort to have Appellees served with process.”

Because he failed to demonstrate that he had exercised due diligence in having the defendants served, the appellate court affirmed the lower court’s dismissal of Pena’s suit in an October 30, 2009 ruling. As the statute of limitations had already expired, the Court of Appeals found that dismissal with prejudice was appropriate. See: Pena v. McDowell, Tex.App.-Tyler., Case No. 12-08-00407-CV; 2009 WL 3527508.

Illinois Prison Doctor Liable for Failing to Treat Testicular Cysts

by David M. Reutter

The Seventh Circuit Court of Appeals remanded a civil rights action that claimed a prison doctor’s care was deliberately indifferent to an ex-Illinois prisoner’s serious medical needs. The Court, however, affirmed dismissal as to non-medical prison officials who answered the prisoner’s grievances.

Before the appellate court was the appeal of Floyd K. Hayes, who contended that Dr. William Hamby at the Hill Correctional Center did not treat his medical condition, but only observed and monitored it as it continued to worsen. The appeal came after an Illinois U.S. District Court granted summary judgment to the defendants on the merits and on qualified immunity grounds.

In the fall of 2000, Hayes was diagnosed with benign testicular cysts that required neither removal nor referral for a urology consult or biopsy. He began filing grievances and requests for medical care in March 2001 because the cysts had become larger. They caused spasms, which occurred at least once and often multiple times a day, compressing his left testicle and causing excruciating pain. It was not until September 2001 that Hayes was seen by Dr. Hamby.

Over the next several weeks, Hamby examined Hayes twice. Despite Hayes ...

Oregon Private Jail Guard is “Corrections Officer”; Prisoner’s Assault Conviction Upheld

The Oregon Court of Appeals affirmed a prisoner’s conviction for assaulting a guard at a private jail, finding that the guard was a “corrections officer” under state law. Oregon’s Supreme Court upheld the decision on review.

Jeremy Tate was confined at the Northern Oregon Correctional Facility (NORCOR), a private regional jail. He overheard another prisoner complain about jail conditions and NORCOR guard Buchanan responded that he could solve the problem by not coming back to jail. Tate “said that another way to solve the problem would be to ‘kill the officers, kill the judges, and kill the cops.’”

Buchanan ordered Tate to go to his cell, but Tate stood up quickly and shook his head. A scuffle ensued and both Tate and Buchanan ended up beneath a table. Tate kicked Buchanan in the face before he was subdued by other guards. Buchanan suffered facial bruising and a severe headache, but returned to work.

Tate was prosecuted for assaulting a public safety officer under ORS 163.208(1), which includes “corrections officer” as a category of victim. Prior to trial, Tate asked the court to instruct the jury that ORS 181.610(5) defines “corrections officer” as a “member ...

Virgin Island Officials Held in Contempt: Prisoner Mental Health Treatment Inadequate

by Matt Clarke

A federal district judge has held the Governor, Attorney General and Director of Corrections of the U.S. Virgin Islands and other prison officials in contempt for not correcting inadequate prisoner mental health treatment.

Virgin Island prisoners filed a class-action suit in 1994, “challenging inhumane and dangerous ...

$862,500 Settlement in Mentally Ill Ohio Jail Prisoner’s Death

A settlement of $862,500 has been reached in the death of a mentally ill prisoner who died at Ohio’s Summit County Jail (SCJ).

While acting in a delusional and disoriented manner, Mark D. McCallaugh, 28, was arrested on August 7, 2006, by Akron police. Once he was booked ...

Ninth Circuit: 42 U.S.C. § 233(a) Does Not Immunize Public Health Service Employees from Bivens Constitutional Tort Claims

Ninth Circuit: 42 U.S.C. § 233(a) Does Not Immunize Public Health Service Employees from Bivens Constitutional Tort Claims

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals has held that 42 U.S.C. § 233(a), which at first blush seems to exempt officers and employees of the U.S. Public Health Service (PHS) from exposure to Bivens civil rights suits, in fact does not – so long as the suit involves a constitutional tort.

This complex question arose in the damages phase of a lawsuit involving the outrageously cruel denial of medical care to Francisco Castaneda, an illegal immigrant detainee who was held in the custody of Immigration and Customs Enforcement (ICE). [See: PLN, Sept. 2008, p.32]. PHS was implicated because medical care for ICE detainees falls under the aegis of PHS.

The issue raised in the U.S. District Court, Castaneda v. United States, 538 F.Supp.2d 1279 (C.D. Cal. 2008), was whether the ability of Castaneda’s survivors to bring suit under Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) – a federal civil rights claim – was foreclosed due to language in 42 U.S.C. § 233(a) that ...

NY DOCS Lacks Authority to Administratively Impose PRS – But State’s Liability Uncertain

New York prison officials lack the authority to require prisoners to serve Post-Release Supervision (PRS) that was not ordered by the sentencing court, according to the Second Circuit Court of Appeals and the Appellate Division of the New York Supreme Court.

In February 2000, Sean Earley pleaded guilty to burglary in New York and was sentenced to six years in prison, but did not receive any PRS. Earley, his attorney, the prosecutor and the judge were all unaware, however, that NY Penal Law § 70.45 had recently been enacted, which mandated the imposition of PRS.

In February 2002, Earley first learned that at some point after his sentencing the New York Department of Correctional Services (DOCS) had administratively added a five-year PRS term to his sentence without informing him.

After unsuccessfully exhausting his administrative remedies, Earley filed a motion with the trial court for resentencing. He argued that DOCS’ modification of his sentence deprived him of due process of law and effective assistance of counsel. The court denied Earley’s motion, finding that because PRS was mandatory, his request to remove it from his sentence could not be granted. The court did not comment on the lack of notice and ...

The Real Cost of Prisons Comix, by Lois Ahrens, PM Press, 90 pages

Reviewed by Gary Hunter

Three stories, 90 pages, and infinite information about how rampant prison construction is destroying America. That’s what The Real Cost of Prisons Comix brings to the table.

The impact of unchecked prison construction has been a blight on American society for the past three decades. From 1975 to 2005, the number of citizens imprisoned in this country rose from under 300,000 to over 1.5 million. With 2.3 million men and women currently behind bars, “…the U.S. incarcerates residents at almost seven times the rate that Canada sends people to prison, 5.8 times the rate of Australia, 8.6 times the rate of France and 11.9 times the rate of Japan.” These are just some of the staggering statistics that have the U.S. simmering at critical mass both socially and economically. All of this information is found on just the first page of the introduction to The Real Cost of Prisons Comix.

Before the 1980s, small towns mostly eschewed proposals to build prisons in their areas. Large-scale political and social mismanagement coupled with tough-on-crime policies now have small towns offering incentives to prison builders. These towns are led to ...

California Prison Officials Settle Deliberate Indifference Suit for $12,000

Following mediation in July 2008, Peter Cockcroft, proceeding pro se, agreed to a $12,000 settlement of his § 1983 suit for damages alleging Eighth Amendment violations that transpired between March 2004 and January 2006, when he was a prisoner housed in the Psychiatric Services Unit (PSU) at Pelican Bay State ...

Over 10 Million in Prison Worldwide

by David M. Reutter

There are more than 10.65 million people in prisons worldwide. That figure includes 850,000 in “administrative detention” in China. Almost half of all prisoners are held in only three countries: Russia, China and the United States.

Those conclusions were published in the eighth edition of the World Prison Population List issued by the International Centre for Prison Studies in London. The list details the number of prisoners in 218 countries, utilizing data available as of early December 2008.

According to the list, the U.S. has the highest prison population rate in the world, at 756 per 100,000 population, followed by Russia (629), Rwanda (604), St. Kitts and Nevis (588), Cuba (c. 531), U.S. Virgin Islands (512), British Virgin Islands (488), Palau (478), Belarus (468), Belize (455), Bahamas (422), Georgia (415), American Samoa (410), Grenada (408) and Anguilla (401).

Almost three-fifths (59%) of the countries profiled have rates below 150 per 100,000 population. Considerable variation of rates occurs in different regions of the world and by continent.

For example, for countries in western Africa the average rate is 154, but in southern Africa the rate is 324.5. South central Asian ...

Iowa Good Time Statute Violates Ex Post Facto Clause

A 2005 amendment to Iowa’s good time statute making participation in a sex offender treatment program (SOTP) a prerequisite to earning good time may not be applied to sex offenders convicted before the amendment’s effective date, the Supreme Court of Iowa decided on January 23, 2009.

Denny Propp, an Iowa prisoner, was convicted of third degree sexual abuse in 1997 and sentenced to 25 years imprisonment. At the time Propp was sentenced, Iowa prisoners were eligible to earn one day of good time for each day of good conduct. In addition, prisoners could earn five extra days of good time each month for participating in various activities and programs.

In 2005, the legislature amended the state’s good time statute. The amendment, effective July 1, 2005, requires sex offenders to participate in sex offender treatment in order to receive good time.

Propp initially participated in sex offender treatment, but was later removed from the treatment program for misconduct. He was deemed ineligible for further good time awards as a result of his removal. This caused Propp’s prison term to be extended by approximately four months.

Propp filed a postconviction relief action, arguing that his loss of good ...

News in Brief:

Arkansas: On February 22, 2010, Little Rock attorney Jack Kearney, a former director of the Arkansas Ethics Commission, was arrested and charged with furnishing $1,300 in cash to a Pulaski County jail prisoner. A Sheriff’s report stated the unnamed prisoner was discovered with the contraband cash and named Kearney as its source. Kearney, who adamantly denied the allegations, was released without bail.

Arkansas: Three juvenile prisoners allegedly beat guard Leonard Wall to death during an escape from a Pine Bluff detention center on January 31, 2010. The juveniles then stole a car, but later abandoned it in a nearby town. Two of the escapees, Nicholas Dismuke, 15, and Christopher Beverage, 16, were captured the next day in Fort Smith. The third escapee, Brandon Henderson, 18, was caught in Oklahoma a few days later. Wall died as a result of head trauma suffered during the beating; another guard, Gloria Wilburn, was assaulted and injured during the escape.

California: Fresno County Jail guard Alfonso Alanis was charged with stealing property from prisoners on January 12, 2010. Alanis, who was responsible for processing the property of prisoners scheduled for release, allegedly took money and other items. He was arrested and released ...

California: Demand for Speedy Trial Applies to Probation Violation Detainers

by John E. Dannenberg

In two rulings in the same case, the California Court of Appeal distinguished the speedy trial rights versus the waiver-of-appearance rights of state prisoners who are facing detainers for probation violations.

Although California prisoners may waive their right to appear so as to speed up the process whereby their probation violation sentence may begin to run concurrent with their existing prison sentence (under Penal Code § 1203.2(a)), they are nonetheless entitled to a speedy trial on any newly-lodged detainer or warrant pursuant to Penal Code § 1381.

Submitting a demand for a speedy trial to the district attorney’s office triggers a 90-day period to bring the defendant physically to court. Otherwise the charges must be dismissed. However, an apparent conflict exists when the detainer is not for a new offense but for a probation violation for an already tried offense.

In the instant case, state prisoner Braulio P. Gonzalez filed a § 1381 demand for a speedy trial as to his alleged probation violation. The court denied his request because he had already been convicted of the underlying offense, with the sentence suspended, and was only waiting to have the sentence imposed. At issue was whether ...


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