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Prisoner Education Guide

Prison Legal News: May, 2010

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Volume 21, Number 5

In this issue:

  1. The History of Prison Legal News (p 1)
  2. Twenty Years of PLN in Court (p 8)
  3. From the Editor (p 14)
  4. Private Manufacturers Use Cheap Arkansas Prison Labor (p 16)
  5. Virginia Jail Prisoner Awarded $7,500 after Being Beaten By Guards (p 16)
  6. Sex for Contraband Racket Unravels After Kansas Prisoner Has Abortion (p 18)
  7. Housing Mentally Ill Violent Offender in Nursing Home Leads to Rape (p 20)
  8. Georgia Law Creates Homeless Sex Offender Colony (p 20)
  9. $5,000 Award in New York Prisoner’s Retaliation Suit (p 22)
  10. Cornell Wins $19.5 Million Alaska Contract; CCA Protest Denied (p 22)
  11. Early Release Scam Results in Arrests (p 23)
  12. $99,999 Settlement for Michigan Prisoner Damaged by Second-Hand Smoke (p 24)
  13. CA Prisoner Erroneously Validated as Prison Gang Member; Clears His Name, Has Records Expunged, $1.04 Million in Fees Awarded (p 24)
  14. Study Finds Pharmacological Treatment of Opiate Dependence Under-Utilized in State and Federal Prisons (p 25)
  15. Washington LFOs Issued Before July 1, 2000 Expire in 10 Years (p 26)
  16. Ninth Circuit: Federal Receiver May be Sued for Breach of Contract (p 26)
  17. Ohio Prisoner Awarded $40,000 for Sexual Assault (p 27)
  18. Missouri DOC Targeted by State Auditors (p 28)
  19. California: Failure to Maintain Relevant Data Renders CDCR Unable to Effectively Monitor and Manage its Operations (p 28)
  20. Illinois Jail Agrees to Pay $290,000 & Annuity Payments to Settle Excessive Force Suit (p 29)
  21. Iraq: Unrest at Abu Ghraib as Camp Bucca Closes (p 30)
  22. Ion Spectrometry Scans Resume at BOP Facilities (p 30)
  23. Methadone Vending Machines Installed in British Prisons (p 30)
  24. Faith-Based Substance Abuse Program Contracts May Violate Florida’s Constitution (p 32)
  25. Missouri Jail Prisoner Awarded $5,000 in Failure to Protect Case (p 32)
  26. Tennessee Jail Agrees to Pay $5,000 for Withholding Prisoner’s Leg (p 33)
  27. State of Washington Settles Suit for $400,000 After Released Sex Offender Goes on Crime Spree (p 33)
  28. Political Uproar Follows NC Court Ruling that Life Sentence is 80 Years (p 34)
  29. King County, WA Pays $125,000 for Assault on Juvenile Prisoner (p 35)
  30. DOJ Releases Report on Staff Sexual Abuse of Federal Prisoners (p 36)
  31. $900,000 Settlement in Washington State Suit Over Parolee Murdering Woman (p 37)
  32. Fifth Circuit Orders Discovery in Katrina Prisoner Evacuation Case (p 38)
  33. Colorado Guards Rarely Jailed for Sexual Abuse of Prisoners (p 38)
  34. Mississippi Earned Time Policy Violates Ex Post Facto Clause (p 39)
  35. Are Debtors’ Prisons Making a Comeback in Indiana? (p 40)
  36. Closed Door Justice: Court Seeks Disbarment of Attorney in Secret (p 40)
  37. Washington Prisoner’s Rape Claim Results in $60,000 Settlement (p 41)
  38. Cost of Capital Punishment Comes Under Increased Scrutiny in a Struggling Economy (p 42)
  39. PLRA Attorney Fee Caps Constitutional, Third Circuit Decides (p 42)
  40. $12,000 Award to Wheelchair-Bound NY Prisoner for Fall off Loading Ramp (p 43)
  41. 17,698 DNA Profiles Missing from Wisconsin Database (p 44)
  42. Kentucky Supreme Court: Retroactive Application of Sex Offender Residency Restrictions Unconstitutional (p 44)
  43. Kern County Settles False Arrest Lawsuit for $5.5 Million (p 45)
  44. CCA Agrees to Pay $1.3 Million to Settle Sexual Harassment, Retaliation Suit (p 46)
  45. $932,900 Award to Hawaii Prisoner Rendered Infertile Due to Inept Medical Care (p 46)
  46. Flushing Junk Down Jail Toilets Damages Sewer System, Prompts $2.3 Million Settlement in California Lawsuit (p 46)
  47. Gloucester County, New Jersey Settles Jail Strip Search Class Action for $4 Million (p 47)
  48. $27,500 Settlement for Washington Prisoner’s Public Records and RLUIPA Claims (p 47)
  49. Opening Legal Mail Outside BOP Prisoner’s Presence States Constitutional Claim (p 48)
  50. Alternative Prisoner Phone Service Company Files Unsuccessful Suit (p 48)
  51. Bivens Case by Disabled Prisoner Against Federal Prison Officials Remanded; Settles for $15,000 (p 49)
  52. News in Brief: (p 50)

The History of Prison Legal News

In May 1990, the first issue of Prisoners’ Legal News (PLN) was published. It was hand-typed, photocopied and ten pages long. The first issue was mailed to 75 potential subscribers. Its budget was $50. The first 3 issues were banned in all Washington prisons, the first 18 in all Texas prisons. Since then we have published 244 consecutive issues, grown to offset printing of 56-page issues, and now have almost 7,000 paid subscribers in all 50 states as well as numerous other countries. This is how it happened.

In 1987 I entered the Washington state prison system with a 304-month prison sentence. In 1988 I met Ed Mead, a political prisoner and veteran prison activist, at the Washington State Reformatory (WSR) in Monroe, Washington. Ed had been imprisoned since 1976. In that period he had been involved in organizing and litigating around prison conditions and issues. He had also started and published several newsletters, including The Chill Factor, The Red Dragon and The Abolitionist. By late 1988, Ed and I were jointly involved in class action prison conditions litigation and other political work.

As the 1980s ended it became readily apparent that collectively prisoners were in a downhill spiral ...

Twenty Years of PLN in Court

Since PLN was founded in 1990 we have been censored in prisons and jails around the country. We have always tried to resolve censorship issues administratively, but in cases where the goal of prison officials was to ban PLN or our books, that obviously wasn’t possible. PLN has aggressively challenged censorship across the nation and we have won the vast majority of our court battles. We have also litigated a number of public records cases involving prisons and jails, in which the requested records or fee waivers were denied.

We would like to thank all of the fantastic and dedicated attorneys who have represented PLN in our various legal actions over the years. Thanks also go to those attorneys who volunteered to represent us in lawsuits that we ended up not having to file. A summary of PLN-related litigation over the past two decades includes the following cases.

Concluded Cases

Washington Parole Suit: In 1994, PLN co-founders Ed Mead and Paul Wright sued the Washington Indeterminate Sentencing Review Board, challenging the Board’s order that Ed have no contact with any felons after his release for the purpose of publishing PLN. In an unpublished ruling, Judge Robert Bryan of ...

From the Editor

Welcome to the 20th anniversary issue of Prison Legal News. It is quite the milestone in the history of any magazine or organization to reach the 20 year mark. The cover story and sidebar lay out our history and what we have accomplished in the past two decades.

Along the way, a lot of people have helped make PLN possible. This ranges from volunteers, donors, foundations, writers, advertisers, our board of directors and lawyers to our subscribers and other supporters. It has been very much a collective enterprise.

Our office move is largely completed as this issue goes to press. Comcast was slow to switch over our existing telephone lines to our new office so some people may have received a disconnected phone message. That has been resolved and the phones were finally ported over. Our Vermont office numbers include 802 579-1309 and 802 257-1342. We have done our best to maintain our mailing, printing and production operations as smoothly as possible during this move and have largely succeeded though our print schedule fell behind a little. We are planning to get back on our regular schedule within the next few issues.

We closed our Seattle office and consolidated our ...

Private Manufacturers Use Cheap Arkansas Prison Labor

by Matt Clarke

Two private manufacturing companies have opened shops in Arkansas prisons. Actronix, Inc. employs 65 female prisoners at the McPherson Unit to produce wiring harnesses for medical imaging devices such as MRI machines and CT scanners, while Glove Corp. employs 55 male prisoners from the Pine Bluff Unit to make specialty gloves for firefighters and the military. The Glove Corp. program has met with such success that the company plans to move to the Grimes Unit and hire 15 additional prisoner employees. [See: PLN, Feb. 2009, p.20].

The increased use of prison labor occurred after Arkansas lost a large number of production jobs to overseas outsourcing. According to the Bureau of Labor Statistics, between 1999 and 2008 the number of production jobs in the state dropped from 187,000 to 127,000.

Glove Corp. general manager Tony Moore said he was on the verge of reducing production at the company’s factory in Heber Springs when the Arkansas Economic Development Commission (AEDC) suggested that he consider using a Prison Industry Enhancement (PIE) program to hire cheap prisoner labor. ADEC offered an incentive package, and Glove Corp. decided to try it out.

Moore said that working for Glove ...

Virginia Jail Prisoner Awarded $7,500 after Being Beaten By Guards

On September 3, 2009, U.S. District Judge Richard L. Williams entered judgment in favor of a Virginia prisoner who was beaten by guards. In all, the prisoner was awarded $7,500.

On September 20, 2005, there was a disturbance at the Piedmont Regional Jail in Farmville, Virginia. Prisoners in ...

Sex for Contraband Racket Unravels After Kansas Prisoner Has Abortion

by David M. Reutter

Despite reports of rampant staff sexual abuse and harassment of women incarcerated at Kansas’ Topeka Correctional Facility (TCF), it was not until one prisoner had an abortion after being raped by a vocational instructor that the mainstream media took notice.

Between 2005 and 2008, the U.S. Department of Justice documented 39 reports of sexual misconduct or harassment by prison employees at TCF. State officials disagreed. They found 31 of the reports unsubstantiated and three unfounded; two had been substantiated and two others were under investigation.

One of the substantiated cases involved a determination there was a 99.99 percent probability that TCF plumbing instructor Anastacio “Ted” Gallardo had impregnated prisoner Tracy Keith, who later had an abortion.

An investigation by the Topeka Capital-Journal revealed that Gallardo viewed the vocational students in his class as his own personal harem. “[A] candy store, so to speak,” said Kenneth Maggard, a former TCF heating and air conditioning supervisor. Maggard had himself been accused of smuggling contraband into the facility; the charges were dropped but he was still fired.

Gallardo had an arrangement to provide cash for oral sex with Keith. She was already aware that Gallardo had an ...

Housing Mentally Ill Violent Offender in Nursing Home Leads to Rape

by Matt Clarke

On January 16, 2009, a 21-year-old mentally ill man with a long history of violent crimes raped a 69-year-old woman housed in the same Illinois nursing home.

Christopher Shelton, 21, suffers from bipolar disorder that causes him to have an explosive temper, which led to multiple arrests for criminal violence. As a 6’1”, 230-pound teenager, he struck teachers with a metal bar he ripped out of a classroom desk drawer. Convicted of aggravated battery, he was eventually paroled from the state prison system. However, he had a half-dozen more run-ins with the police, including a 2006 arrest for throwing a woman into a brick wall and kicking her in the head and crotch.

In 2008 he was arrested three times; one of those arrests was for punching a man in the face at the Maplewood Care nursing home in Chicago, where Shelton resided. A few weeks later he was taken into custody by police on a previous battery charge. He was released in November 2008 and asked to be readmitted to Maplewood.

Without even asking why Shelton had been arrested, the nursing home accepted him. Maplewood tried to conduct a background check but used the wrong ...

Georgia Law Creates Homeless Sex Offender Colony

by David M. Reutter

Georgia’s sex offender residency restrictions have led some offenders to live in the woods because they have no legal place to stay. Reminiscent of leper colonies, they are forced to camp out on the fringes of society.

Under Georgia law, the state’s 16,000 sex offenders are prohibited from living, working or loitering within 1,000 feet of schools, churches, parks and other areas where children gather. While the law is designed to protect children, critics charge that it leaves some sex offenders homeless, unable to find employment and unsupervised due to their transient living situation.

Probation officers in Cobb County had no place for sex offenders to stay once released from prison. To solve that problem, they began sending them to a densely wooded area behind an office building in Marietta, a suburb of Atlanta.

In September 2009, nine sex offenders were living in tents around a makeshift fire pit. “I’m living like an animal. It’s just bad,” said Levertice Johnson, 52, who was convicted of child molestation in 2002. “You can’t clean up, you can’t clean yourself, you can’t do nothing. I’d rather be dead. I ...

$5,000 Award in New York Prisoner’s Retaliation Suit

Following a bench trial, a New York federal district court awarded a prisoner $5,000 in a lawsuit alleging that a guard retaliated against him for exercising his First Amendment rights.

The civil rights action was filed by state prisoner Karl Ahlers, who worked as a law clerk at the ...

Cornell Wins $19.5 Million Alaska Contract; CCA Protest Denied

by Matt Clarke

In September 2009, Alaskan officials denied a protest filed by Corrections Corporation of America (CCA), which was the final hurdle before awarding Cornell Corrections of Alaska (a subsidiary of Cornell Corrections) a contract worth $19,446,000 to house up to 900 Alaskan prisoners in an out-of-state private prison.

CCA had held the contract since 1994 and was paid $20,669,000 last year to house Alaskan prisoners at its Red Rock Correctional Center in Arizona. In December 2009, the 770 prisoners at Red Rock were transported to Cornell’s new l,250-bed Hudson Correctional Facility in Colorado.

Cornell’s subsidiary received special bidding preference because it was an Alaska-based company. CCA had bid $18,724,000 per year for the three-year contract, and filed a protest against awarding the contract to Cornell Alaska because it had used its Texas-based parent company as the qualified service provider. CCA claimed that Cornell Alaska, which manages Alaskan halfway houses, would not otherwise have had the requisite experience to perform under the contract. CCA also maintained that if Cornell Alaska had to depend on its parent company, then it was no longer entitled to preference as an Alaskan company and ...

Early Release Scam Results in Arrests

The FBI has arrested two men in an unusual and brazen plot to defraud prisoners and their families out of tens of thousands of dollars in exchange for reduced sentences.

Monterro Paul, who previously served time in federal prison for counterfeiting and drug charges, allegedly told an FBI agent that he could help prisoners get reduced sentences by setting up drug dealers to be arrested. Paul, who claimed to be with the DEA, asked for fees of up to $200,000 for arranging the sentence reductions.

According to Paul, when the drug dealers he set up were arrested, the prisoners would get credit for providing information that resulted in the busts. The credit would be in the form of a motion under Rule 35 of the Federal Rules of Criminal Procedure, which allows the government to reduce a prisoner’s sentence for snitching.

Paul was arrested at the Jackson, Mississippi airport on December 4, 2009 along with his accomplice, Mark Amos. Paul and Amos had just finished meeting with an undercover FBI agent and reportedly took $15,000 as a down payment for the scam. Amos’ role was to tell prisoners that Paul had helped him get out of prison ...

$99,999 Settlement for Michigan Prisoner Damaged by Second-Hand Smoke

A Michigan prisoner accepted $99,999 to settle a lawsuit for damages and injuries he suffered as a result of prison officials’ failure to follow medical prescriptions to house him in a non-smoking environment.

Prior to being housed at Carson City Temporary Facility (CTF), prisoner Wantwaz Davis had been in ...

CA Prisoner Erroneously Validated as Prison Gang Member; Clears His Name, Has Records Expunged, $1.04 Million in Fees Awarded

On September 30, 2009, more than 16 years after being incorrectly “validated” as an associate of a violent California prison gang, and after having spent eight years in an isolation unit as a result of that false validation, former prisoner Ernesto Lira had his records cleared of any indication that ...

Study Finds Pharmacological Treatment of Opiate Dependence Under-Utilized in State and Federal Prisons

In the first national survey of its kind, researchers have documented important attitudes and practices among state and federal correctional medical directors regarding the use of methadone and buprenorphine to treat heroin/opiate addiction in prisoners, both while incarcerated and after release. The importance of the research stems from the prevalence of heroin use among prisoners, estimated (in 2004) at 9% of the federal prison population and 13% of the state prison population. The chain of logic is straightforward: studies show that approximately 55% of those with a history of substance use relapse within one month of release from incarceration; relapse to substance use, in turn, is associated with increased criminal activity, risk of HIV and HCV infection, drug overdose, and reincarceration. Thus, to the extent that treatment during and/or following incarceration can reduce the negative consequences associated with opiate addiction, offering such treatment could potentially lead to significant social and economic benefits. And indeed, research confirms that offering prisoners pharmacological treatment and counseling for opiate dependence prior to and particularly around the time of release does decrease the likelihood of drug relapse, overdose, recidivism, and HIV risk behaviors, and additionally increases the likelihood of remaining in long-term drug ...

Washington LFOs Issued Before July 1, 2000 Expire in 10 Years

The Washington State Supreme Court has unanimously held that restitution orders issued before July 1, 2000 expire and become void after 10 years, unless extended by the trial court before expiration.

In 1992, Henry Gossage was convicted of sex offenses in Washington state, sentenced to prison and ordered to pay $2,374.88 in restitution. He completed his prison term and was transferred to community custody in June 1995. As a community custody condition, Gossage was required to pay a minimum of $20 per month toward his legal financial obligations (LFOs), which included restitution, court costs and fees.

Gossage finished his community custody term on November 4, 2003 but had paid only $990.50 of his LFOs, or about half of his $20 per month requirement. He “had also accrued $2,541.10 in interest, bringing his LFO total to $4,020.98.”
In December 2005, Gossage sought a certificate of discharge, which “restores an offender’s civil rights. RCW 9.94A.637(4). The court will issue a certificate of discharge when an offender has completed all of his sentence requirements, including any LFOs. RCW 9.94A.637(1)(a).”

The trial court denied Gossage’s petition and the ...

Ninth Circuit: Federal Receiver May be Sued for Breach of Contract

The Ninth Circuit held on Oct. 30, 2009 that the Receiver appointed by a federal court to oversee delivery of medical care to prisoners in the California Department of Corrections and Rehabilitation (CDCR) was not immune from an official-capacity lawsuit for damages. The lawsuit alleged that the Receiver had breached a contract with Medical Development International (MDI), a Florida-based company that provided medical services at two CDCR prisons but did not get paid for much of its work.

Responding to what it characterized as an “unconscionable degree of suffering and death,” in June 2005 the U.S. District Court for the Northern District of California established a receivership to overhaul the delivery of medical services to CDCR prisoners. [See: PLN, Mar. 2006, p.1]. The court subsequently entered a separate order authorizing the CDCR to contract with third-party medical service providers without competitive bidding.

In that context the CDCR entered into a relationship with MDI, and, despite the absence of a finalized negotiated contract, permitted the company to provide services at two facilities – the California State Prison in Los Angeles and the California Correctional Institution in Tehachapi.

Later, when the CDCR became concerned that MDI was not licensed to practice ...

Ohio Prisoner Awarded $40,000 for Sexual Assault

On August 19, 2009, an Ohio prisoner was awarded $40,000 after being sexually assaulted as a result of deliberate indifference to his safety.

John Meyer, a prisoner at the Southeastern Correctional Institution (SCI), approached Sergeant Barbara McNicholas after being “roughed up” and threatened by other prisoners who wanted him ...

Missouri DOC Targeted by State Auditors

On September 28, 2009, Missouri State Auditor, Susan Montee, released the results of an audit recently conducted by her office targeting the State’s DOC. The audit focused primarily on the three years ending June 30, 2008 and was intended as a tool to evaluate (l) the DOC’s internal controls over significant management and financial functions, (2) DOC’s compliance with certain legal provisions and (3) the economy and efficiency of management practices and operations.

The major disagreement between DOC officials and Ms. Montee’s office arose in regard to the proper dispensation of monies confiscated by the DOC from prisoners or parolees who escaped or absconded from supervision. In addition to these “escapee funds,” as of June 30, 2008, the DOC held almost $20,000 in unredeemed canteen coupons either lost or abandoned by prisoners. Although DOC officials have been confiscating these monies for years, it was not until fiscal year 2007 that any of the funds were spent, which auditors believe is a violation of DOC statutory authority.

The escapee and coupon funds combined totaled approximately $1 million as of June 30, 2008. According to state auditors, this money is supposed to be used to meet the ...

California: Failure to Maintain Relevant Data Renders CDCR Unable to Effectively Monitor and Manage its Operations

In September 2009, the California State Auditor, responding to a request from the Joint Legislative Audit Committee, submitted a report to assess the effect of California’s rapidly increasing prison population on the state budget. The report found that in the past three years, while the adult prison population had decreased by roughly 1 percent, expenditures by the California Dept. of Corrections and Rehabilitation (CDCR) had increased by almost 32 percent, and at $10 billion now represent about 10 percent of the state’s total General Fund expenditures.

Despite its huge (and ever-increasing) drain on the state’s coffers, the CDCR is unable to determine, because it fails to maintain and use a variety of basic information management tools, the influence of various factors – such as overcrowding, vacant employee positions, escalating overtime costs, an aging prisoner population and lengthier prison terms due to sentencing under the state’s “three strikes” law – on the costs of its operations.

Some of the audit’s highlights: In fiscal year (FY) 2007-08, the average annual cost of incarceration was $49,300 per prisoner. Over 65 percent of that total was to cover housing, security and support costs; just over 26 percent covered health care ...

Illinois Jail Agrees to Pay $290,000 & Annuity Payments to Settle Excessive Force Suit

Illinois Jail Agrees to Pay $290,000 & Annuity Payments to Settle Excessive Force Suit

Tazewell County, Illinois has agreed to settle an excessive force suit for $290,000 and annual annuity payments.

Charles Chandler was taken to the Tazewell County Jail on November 6, 2006, after being arrested for aggravated ...

Iraq: Unrest at Abu Ghraib as Camp Bucca Closes

by Matt Clarke

In September 2009 the U.S. military closed Camp Bucca in Iraq, once its largest detention facility, and the prison at Abu Ghraib experienced a two-day uprising. Camp Bucca cost the U.S. $50 million to build and once held over 22,000 prisoners in separate camps. It was permanently closed on September 16, 2009, leaving only a brick factory, ice plant and water treatment facility to turn over to local residents for civilian use.

The closing of Camp Bucca was part of the demobilization of the U.S. military in Iraq. The U.S. once held about 90,000 Iraqi prisoners; it now holds around 2,900. All U.S. military prisons except one have been closed or turned over to Iraqi authorities, including the $107 million Camp Taji. The last facility, Camp Cropper, is scheduled to be handed over on July 15, 2010.

One of the former U.S. detention facilities already turned over to the Iraqis is the prison at Abu Ghraib near Baghdad. Renamed the Baghdad Central Prison, it is still referred to locally and internationally as “Abu Ghraib” and remains infamous for the inhumane treatment of prisoners both before and after the ...

Ion Spectrometry Scans Resume at BOP Facilities

The Federal Bureau of Prisons (BOP) has restarted its ion spectrometry program. In April 2008, the BOP suspended the use of all its ion spectrometry machines to screen prison visitors for drugs after lawsuits and complaints cast doubt on the reliability of the devices. [See: PLN, Feb. 2009, p.11].

Grandmothers, children and other family members were routinely turned away from visiting their loved ones when the ion spectrometry machines were in use. False-positives for the presence of illegal drugs were common, as hand-sanitizers and prescription medication set off the devices.

On March 24, 2009, the BOP reinstated the program following testing by the BOP’s Office of Security Technology. According to a memo from Joyce Conley, Assistant Director for the Correctional Programs Division, ion spectrometry equipment may now be used at all BOP institutions, but only for testing prisoner mail, prisoner belongings, lockers, work areas and visitation rooms.

Ion spectrometry equipment is not authorized for testing prisoners or their visitors for drug residue. Despite the memo, some institutions have reportedly started using the machines on visitors. For example, visitors at FCI Sandstone have stated guards are conducting random ion scans, and posts on indicate the machines ...

Methadone Vending Machines Installed in British Prisons

Fifty-seven methadone vending machines have been installed in British prisons in an effort to help opiate-addicted prisoners manage their drug addictions without resorting to illegal heroin supplies available behind bars.

The machines dispense individualized doses of methadone to registered prisoners after a fingerprint or iris scan. A total of about 70 machines are expected to be installed at a cost of approximately $6.5 million, roughly 10% of the British prison system’s drug treatment budget.

“Methadone dispensers are a safe and secure method for providing a prescribed treatment,” said a prison spokesperson. “They can only be accessed by the person who has been clinically assessed as needing methadone and that person is recognized by a biometric marker, such as their iris.”

Dominic Grieve, a member of the British Conservative party, was critical of the decision to install the prison vending machines. “We need to get prisoners off all drug addiction – not substitute one dependency for another,” he said. Grieve also argued that the methadone dispensers were an “admission of failure” by the prison system.


Faith-Based Substance Abuse Program Contracts May Violate Florida’s Constitution

by David M. Reutter

Contracts between the Florida Department of Corrections (FDOC) and faith-based substance abuse transitional housing programs may violate the “no-aid” provision of Florida’s Constitution. Because the issue required further factual development to make that determination, Florida’s First District Court of Appeal reversed the trial court’s final judgment on the pleadings in favor of the FDOC.

The lawsuit was filed in Leon County Circuit Court by the New York-based Council for Secular Humanism (CSH) and Richard and Elaine Hull, who are Florida residents and members of CSH. The suit alleged that FDOC’s use of state funds pursuant to §§ 944.473 and 944.4731, Florida Statutes, violated the “no-aid” provision of Article I, Section 3 of Florida’s Constitution.

CSH specifically targeted contracts between the FDOC and Prisoners of Christ, Inc. and Lamb of God Ministries, alleging “that payments to these organizations constituted payments to churches, sects, religious sects, religious denominations or sectarian institutions.” The contracts obligate the organizations to provide “faith-based substance abuse post-release transitional housing program services” for $20 per former prisoner per day.

The FDOC entered into the contracts pursuant to statutes that require it to “consider qualified faith-based service groups on ...

Missouri Jail Prisoner Awarded $5,000 in Failure to Protect Case

On September 3, 2009, a federal jury returned a $5,000 verdict in favor of a prisoner who alleged that staff failed to protect him from attack.

While incarcerated at the St. Louis City Justice Center, Harold Dykes was attacked by another prisoner. Before the attack, Dykes told Joetta Mitchell ...

Tennessee Jail Agrees to Pay $5,000 for Withholding Prisoner’s Leg

The Davidson County Sheriff’s Department has agreed to settle a lawsuit brought by a prisoner under the Americans with Disabilities Act (ADA).

Jerry Ray Brock was extradited from Columbus, Georgia to Tennessee to begin service of a Tennessee conviction. During intake at the Davidson County Jail, jail officials took ...

State of Washington Settles Suit for $400,000 After Released Sex Offender Goes on Crime Spree

In June 2008, the State of Washington entered into a stipulated judgment to settle claims for damages, filed in both state and federal courts, by Diana McKissen, who was raped, tortured, and severely beaten at gunpoint in 2004, when Community Corrections Officer Chris Leyendecker allegedly failed in his responsibilities to ...

Political Uproar Follows NC Court Ruling that Life Sentence is 80 Years

by David M. Reutter

A political brouhaha arose in October 2009 in the wake of a North Carolina appellate court decision which held that a “life sentence is as an 80-year sentence for all purposes.” While the ruling applies only to defendants convicted of crimes between 1974 and 1978, Governor Beverly Perdue assailed the decision and vowed not to release any prisoners who would benefit from the judicial opinion.

The uproar began after the North Carolina Supreme Court declined to review a ruling by the Court of Appeals in a case brought by state prisoner Bobby E. Bowden, who was convicted of two counts of first-degree murder in 1975.

Bowden’s original death sentence had been vacated and concurrent life sentences were imposed. Since becoming eligible for parole in 1987, he had received annual parole reviews. Recognizing that N.C. Gen. Stat. § 14-2 (1974) applied to him, Bowden filed a Petition for Issuance of a Writ of Habeas Corpus ad subjiciendum in December 2005.

Just six weeks after the filing, the trial court rejected Bowden’s argument that under state law a life sentence is to be considered 80 years, and that with the application of sentence reduction credits he ...

King County, WA Pays $125,000 for Assault on Juvenile Prisoner

Washington state’s King County has paid $125,000 to settle a claim that accused a guard of physically abusing a juvenile offender. The claim involved events that occurred on November 29, 2008 at the King County Jail.

The juvenile, Malika J. Calhoun, 15, said she was attacked in a ...

DOJ Releases Report on Staff Sexual Abuse of Federal Prisoners

A report by the Office of the Inspector General (OIG) of the U.S. Department of Justice concerning sexual abuse of federal prisoners by prison staff found that such claims were widespread and had more than doubled during the eight-year span reviewed by the report. The OIG called the Bureau of Prison’s efforts to address sexual abuse and misconduct “mixed,” found the U.S. Marshals Service’s prevention policies insufficient, and listed 21 recommendations to deter further abuse.

The OIG report found that sexual abuse allegations had occurred at all but one of the Bureau of Prisons’ 93 facilities, including 15 of 16 occupational categories. The majority of the incidents involved criminal sexual abuse rather than administrative sexual misconduct. Further, many of the claims were also related to allegations of other serious crimes; nearly 40% of the employees who were prosecuted were convicted of additional charges, which implicated safety and security concerns at federal prisons.

A total of 1,585 allegations of staff sexual abuse and misconduct were reported during the eight-year period under review, from FY 2001 through FY 2008. The number of sexual abuse allegations rose 104 percent during that time period, from 76 in the first ...

$900,000 Settlement in Washington State Suit Over Parolee Murdering Woman

On December 10, 2008, Washington State agreed to a $900,000 settlement in a suit alleging negligent supervision of a violent parolee who murdered a woman.

Laurence Owens, a level 3 sex offender and violent felon, was under the supervision of the Washington State Department of Corrections (DOC). Owens had ...

Fifth Circuit Orders Discovery in Katrina Prisoner Evacuation Case

by Matt Clarke

On July 1, 2009, the Fifth Circuit Court of Appeals vacated a lower court’s denial of summary judgment in a case involving the evacuation of prisoners from the Orleans Parish Prison (OPP) in New Orleans in the wake of Hurricane Katrina. The case was remanded with instructions to reconsider whether the defendant was entitled to qualified immunity after allowing limited discovery on that issue.

Ronnie L. Morgan, Jr. was a federal prisoner in protective custody (PC) at OPP when Hurricane Katrina made landfall on August 29, 2005. [See: PLN, April 2007, p.1]. Because OPP could no longer supply food, water, electricity, toilets or medical care, Morgan was evacuated to the Elayn Hunt Correctional Center (EHCC) and held in a large field along with thousands of other prisoners. Upon their arrival at EHCC, Morgan and other federal PC prisoners informed a guard about their PC custody status. The guard told them not to mention their status to anyone. They pointed out that their clothing was clearly marked “Federal,” but were ordered onto the field anyway.

Other prisoners congregated at the gate to the field, awaiting the PC prisoners and shouting to one another about their imminent ...

Colorado Guards Rarely Jailed for Sexual Abuse of Prisoners

by Matt Clarke

Although not uncommon, any kind of sexual contact between a guard and a prisoner is considered coercive sexual abuse under Colorado state law. This reflects the reality that prisoners cannot have truly consensual sex with a person who has total control and authority over them. Between 2005 and 2007, Colorado Department of Corrections (DOC) investigators confirmed there were 62 complaints of sexual misconduct involving DOC employees and private contractors. Few spent much if any time behind bars.

In June 2009, U.S. District Court Judge David Ebel criticized prosecutors for allowing former DOC Sgt. Leshawn Terrell to plead guilty to a lesser charge and receive only 60 days in jail in a case involving unlawful sexual conduct and the forcible rape of a female prisoner. The prisoner sued the DOC and Terrell, and received a $250,000 settlement from the former and a $1.3 million award against the latter. [See: PLN, Nov. 2009, p.12; May 2009, p.1].

In 2006, Rusty Rollinson, a guard at the Brush Correctional Facility, was allowed to plead guilty to felony menacing; he received a two-year probated sentence in a case that involved sexual misconduct and the forcible rape of ...

Mississippi Earned Time Policy Violates Ex Post Facto Clause

Mississippi’s Court of Appeals has remanded for an evidentiary hearing a claim that a law prohibiting prisoners who are convicted of sale or transfer of a controlled substance from eligibility for earned-time allowance is an ex post facto law as applied to the petitioner.

The petitioner, Mississippi prisoner Van Gray, pled guilty to the crime of sale and transfer of cocaine, receiving a 15-year sentence for selling less than 0.1 gram to an undercover officer on October 24, 2001.

Prior to Gray’s conviction and sentence, Mississippi Code Annotated section 47-5-138.1 was amended, effective April 28, 2004, to enact the above stated prohibition. After exhausting administrative remedies, Gray filed a petition in the Circuit Court of Lamar County to clarify his sentence. He claimed the amended statute denied him the opportunity to be placed in trusty status and earn gain time.

The Circuit Court held that the authority to earn gain time is discretionary, and that the authority to grant earned gain time is not a form of sentencing or punishment, but is the legislature’s method to encourage good behavior and help ease overcrowding. As Gray’s sentence was within statutory limits, the legislature’s action ...

Are Debtors’ Prisons Making a Comeback in Indiana?

Concerns are growing that small claims courts in Indiana may be taking actions that amount to the return of debtors’ prisons, sparking national debate on the issue. This has occurred despite objections from the state’s Court of Appeals as well as a state constitutional ban on imprisonment for debt.

Several small claims courts in the southern part of Indiana have been jailing, or threatening to jail, debtors who fall behind on court-ordered payments. In a recent case in Perry County, Circuit Court Judge M. Lucy Goffinet ruled in a civil case that a defendant must pay $25 per month or he would sit “at the Sheriff’s Department.”

The Indiana Court of Appeals reversed, holding that the “trial court improperly threatened [the defendant] with imprisonment for his failure to propose a plan to pay the judgment.” See: Button v. James, 909 N.E.2d 1007 (Ind.App. 2009).

In the words of Alan W. White, professor of consumer law at Valparaiso University, such actions by a small claims court are “absolutely not a routine practice anywhere else in the country.” The issue gained national attention, being featured in a report on CBSMoneywatch.

Judges from Vanderburgh Superior Court, another Indiana ...

Closed Door Justice: Court Seeks Disbarment of Attorney in Secret

The story of Herbert Moncier, a prominent attorney in Knoxville, Tennessee, seems foreign, as if it were from another time and place. In fact, it is almost Gestapo-like.

Moncier’s problems began on November 17, 2006 during a sentencing hearing for one of his clients before U.S. District Court Judge J. Ronnie Greer. When Judge Greer attempted to question Moncier’s client about a potential conflict of interest, Moncier kept interrupting. He also said the government had engaged in “scurrilous” behavior and accused Judge Greer and the magistrate of bias.

The judge told Moncier to be quiet, even threatening him with jail if he said “one more word.” But Moncier persisted and Judge Greer made good on his threat, ordering that Moncier be taken into custody. Moncier spent one hour in jail and was subsequently charged with criminal contempt.

Following a trial on April 24, 2007 before Judge Greer, in which Moncier testified in his own defense, Moncier was found guilty and sentenced to one year probation and a $5,000 fine. He appealed the conviction.

Some 14 months after the November 2006 courtroom incident, out of the blue, the Chief Judge of the Eastern District of Tennessee, Curtis ...

Washington Prisoner’s Rape Claim Results in $60,000 Settlement

The State of Washington paid $60,000 to settle a claim that involved a prisoner at the Washington State Reformatory being “savagely sexually assaulted” by another prisoner.

In the late evening of June 9 or the early morning hours of June 10, 2005, prisoner Jason M. Grey was raped by prisoner Tremayne Francis, who prison officials were aware had previously raped another prisoner.

After promptly reporting the matter, Grey was taken to the Sexual Assault Center at the Providence Hospital. The investigation into the matter resulted in Francis being prosecuted for raping Grey.

Represented by Lynnwood attorney Stephen L. Conroy, Grey filed a tort claim for damages against the Washington Department of Corrections. That claim asserted six separate theories to obtain damages, ranging from federal constitutional violations to state law torts of negligence.

The Washington State Risk Management Division settled the matter on March 18, 2008. See claim #3106115.

Cost of Capital Punishment Comes Under Increased Scrutiny in a Struggling Economy

A new report released by the Death Penalty Information Center (DPIC) challenges the economic feasibility and sensibility of states maintaining the death penalty amid the nation’s current economic downturn.

The report, entitled Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis, “explores the prospect of saving states hundreds of millions of dollars by ending the death penalty.” Additionally, the report included the results of a national poll of police chiefs, which indicated that capital punishment was “at the bottom of their priorities for achieving a safer society.”

The poll, commissioned by the DPIC, surveyed 500 police chiefs selected at random from across the nation. They were asked for their opinions on a variety of issues, from the deterrence value of the death penalty and its effect on reducing violent crime to the efficiency of capital punishment when compared to alternative ways to allocate scarce budgetary resources and its preferability to sentences of life without parole.

The DPIC found that the police chiefs surveyed had a “high degree of skepticism about the death penalty, and a strong desire to spend limited funds more productively elsewhere.” When asked whether or not they agreed with the statement, “The ...

PLRA Attorney Fee Caps Constitutional, Third Circuit Decides

The provisions of the Prison Litigation Reform Act (PLRA) that cap attorney fees do not violate equal protection, the U.S. Court of Appeals for the Third Circuit decided on May 28, 2009.

Pennsylvania prisoner Glenndol Parker sued prison guard Joseph Conway for assault in violation of the Eighth Amendment ...

$12,000 Award to Wheelchair-Bound NY Prisoner for Fall off Loading Ramp

A New York Court of Claims awarded a prisoner $12,000 for injuries incurred by a fall off a curb while in a wheelchair.

Prisoner Darin Carathers became a paraplegic after sustaining a gun shot wound to the neck in 1981, leaving him wheelchair-bound. Guards from the Green Haven Correctional ...

17,698 DNA Profiles Missing from Wisconsin Database

by Matt Clarke

In September 2009, Wisconsin officials discovered that the profiles of 17,698 convicted felons were missing from the state’s DNA database.

An investigation into Milwaukee serial killer suspect Walter E. Ellis revealed that his DNA was not in Wisconsin’s 128,065-profile database, though it should have been. An audit later found that about 13% of the profiles that should be in the database were missing. The omitted profiles included those of over 400 convicted sex offenders and around 10,360 felons who were no longer under correctional supervision.

Wisconsin state law requires the collection of a DNA sample from all convicted felons; the sample is used to generate a DNA profile for the state database. The 17,698 missing profiles spanned a time period from 1993 to 2009.

“Our charge is to get samples from everyone, and that’s where we are,” said John Dipko, a spokesman for the Wisconsin Department of Corrections (DOC). “We are also working as quickly as possible to go after and get DNA for people who are no longer under supervision.”

The DOC set up a task force, consisting primarily of retired law enforcement officials, charged with collecting DNA samples ...

Kentucky Supreme Court: Retroactive Application of Sex Offender Residency Restrictions Unconstitutional

On October 1, 2009, the Kentucky Supreme Court held that retroactive application of sex offender residency restrictions violated prohibitions against ex post facto laws in the U.S. and Kentucky constitutions.

In 1995, Michael Baker pleaded guilty to third-degree rape for unlawfully touching a teenage girl. He received five years probation and was required to register as a sex offender until 2010. In 2000, the Kentucky General Assembly enacted a sex offender residency restriction statute.

The current version of the law, codified at KRS 17.545, prohibits any registered sex offender from living within 1,000 feet of a school, preschool, publicly-owned playground or licensed day care facility. Failure to comply is a Class A misdemeanor for the first offense and a Class D felony for subsequent violations. A sex offender already living within 1,000 feet of a prohibited area on the amended statute’s enactment date had to move within 90 days.

Baker was arrested on February 2, 2007 for violating the statute by residing within 1,000 feet of East Covered Bridge Park, which was not listed on the Division of Probation and Parole’s website link provided to registered sex offenders to determine whether they are ...

Kern County Settles False Arrest Lawsuit for $5.5 Million

In September 2009, Kern County (California) officials entered into a multimillion dollar settlement agreement with John Stoll, disposing of a federal lawsuit filed by Stoll in 2005, seeking compensation for damages allegedly sustained as a result of a violation of his civil rights, including 20 years of incarceration for crimes ...

CCA Agrees to Pay $1.3 Million to Settle Sexual Harassment, Retaliation Suit

On October 1, 2009, Corrections Corporation of America (CCA) entered into a consent decree with the Equal Employment Opportunity Commission (EEOC) to settle allegations of sexual harassment and retaliation involving female employees at the company’s Crowley County Correctional Facility (CCCF) in Colorado.

In September 2006, the EEOC filed a ...

$932,900 Award to Hawaii Prisoner Rendered Infertile Due to Inept Medical Care

A Hawaii state judge awarded a former prisoner $932,900 in damages in a lawsuit alleging substandard medical care. Gregory Slingluff, 41, sued after he was rendered infertile due to poor medical treatment while incarcerated at the Halawa High Security Correctional Center in 2003-2004 for a drug offense.

Slingluff developed ...

Flushing Junk Down Jail Toilets Damages Sewer System, Prompts $2.3 Million Settlement in California Lawsuit

In October 2009, the San Mateo County Board of Supervisors tentatively agreed to pay $2.3 million to settle a lawsuit that alleged county prisoners were damaging the adjoining sewer system by clogging it up with items not intended to be flushed down the jail’s toilets. The suit was ...

Gloucester County, New Jersey Settles Jail Strip Search Class Action for $4 Million

by Matt Clarke

On September 14, 2009, the parties in a class action lawsuit against Gloucester County, New Jersey over the county jail’s strip search policies filed a settlement agreement in federal district court agreeing to a $4 million settlement.

Sandra King Wilson was 51 years old when she ...

$27,500 Settlement for Washington Prisoner’s Public Records and RLUIPA Claims

The State of Washington Department of Corrections paid $27,500 to settle two lawsuits brought by prisoner Derek E. Gronquist. The first action involved request for disclosure of public records, and the second related to violations of religious freedom.

The public records suit related to Gronquist’s request to inspect ...

Opening Legal Mail Outside BOP Prisoner’s Presence States Constitutional Claim

The U.S. Court of Appeals for the Sixth Circuit affirmed in part and reversed in part a district court decision denying qualified immunity to several Bureau of Prisons (BOP) employees accused of opening properly marked legal mail outside a prisoner’s presence.

Robert Merriweather, who was formerly incarcerated at the Federal Correctional Institution in Milan, Michigan, filed a Bivens action against T.A. Zamora, Brian Dutton, Scott Boudrie, Frank Finch, Steve Culver, James L. Davenport, Jr. and Don Vroman, all BOP employees, after numerous pieces of legal mail were opened outside his presence.

The magistrate judge in the case recommended that Merriweather’s claims against all of the defendants be allowed to proceed. The district court adopted the magistrate’s recommendation, and the BOP employees took an interlocutory appeal.

On appeal, the defendants argued that one of the envelopes marked as being from “Jerome T. Flynn, Northern District of Indiana Federal Community Defenders, Inc.,” did not appropriately identify that it was from a lawyer because it did not include the word “attorney.” In rejecting this argument, the Sixth Circuit noted that the relevant BOP regulation does not require that “the envelope contain the word ‘attorney.’” Instead, the rule only ...

Alternative Prisoner Phone Service Company Files Unsuccessful Suit

by David M. Reutter

A company that offers a lower-cost alternative to the monopolistic practices of the nation’s largest prison and jail telephone service providers filed a federal lawsuit alleging violation of the Federal Communications Act.

The suit was filed by Millicorp, a Florida-based company that offers alternative phone services to prisoners’ family members and loved ones through its subsidiary, Cons Call Home (CCH). Millicorp, a provider of interconnected voice over Internet protocol (VOIP), is registered with the Federal Communications Commission (FCC) to transmit voice communications over a broadband Internet connection rather than traditional land lines.

Millicorp sued Securus, T-Netix, Evercom and Global Tel*Link (GTL). The first three companies are under Securus’ corporate umbrella, and in combination with GTL the firms control 70 to 80% of the nation’s prison and jail phone services.

On average, Securus and GTL charge $3.95 per call for local set-up and service plus an average of $.90 per minute for long-distance calls. Through CCH, Millicorp provides a legitimate, secure and very popular technological alternative to the higher prices charged by Securus and GTL.

To offer lower-cost phone services, CCH provides its customers with a telephone number in the prison’s local ...

Bivens Case by Disabled Prisoner Against Federal Prison Officials Remanded; Settles for $15,000

The U.S. Court of Appeals for the Fourth Circuit reversed a grant of summary judgment to federal prison officials in a Bivens case brought by a handicapped prisoner who was unable to take a shower or go to recreation for over two months because the defendants refused to provide ...

News in Brief:

California: Contra Costa County’s top homicide prosecutor, Harold Jewett, was placed on administrative leave for allegedly punching his supervisor, assistant district attorney Paul Sequeira. The incident, which took place on March 8, 2010 during a staff meeting and sent Sequeira to the hospital for stitches, occurred after Sequeira confronted Jewett about a letter he sent to the local paper disparaging fund raising practices at the prosecutor’s office for the upcoming election of a new district attorney.

California: State prison guard Domingo Garcia, 40, pleaded guilty on March 24, 2010 to smuggling contraband into the California State Prison-Sacramento. Garcia admitted that he took bribes to deliver phones and drugs to prisoners. He was also found with a handgun, 50 rounds of ammo and two knives in his car on prison grounds; he said they were his personal weapons and he had forgotten to remove them. His sentencing hearing is scheduled for April 26.

Florida: On March 13, 2010, Thomas Althoff, 33, was booked into the Hernando County Jail for driving on a suspended license. Jailers discovered him snorting Xanax a few hours later. He admitted to smuggling the pills into the jail by concealing them in the fat rolls ...


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