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Prison Legal News: June, 2010

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Volume 21, Number 6

In this issue:

  1. Secret Justice: Criminal Informants and America’s Underground Legal System (p 1)
  2. New Details Regarding Race Riot at USP Florence (p 11)
  3. From the Editor (p 12)
  4. Dozens of CIA “Ghost” Detainees Unaccounted For (p 12)
  5. ACLU Report Applauds Michigan’s Efforts to Reduce Prison Population (p 13)
  6. Report on Prison Privatization Plagued with Political Connections, Conflicts of Interest, Faulty Data (p 14)
  7. Habeas Hints: Certificate of Appealability (p 16)
  8. $315,000 Settlement in Illegal Arizona Police Strip Search (p 18)
  9. 50,000 Illinois Felons Released Without DNA Collection (p 19)
  10. Salt Lake County Agrees to Pay $75,000 to Settle Jail Suicide Suit (p 19)
  11. Book Review: Anne-Marie Cusac, Cruel and Unusual: The Culture of Punishment in America, 336 pp, Yale University Press, $27.50 (p 20)
  12. California Jail Detainee Attacked by Cellmate, Family Accepts $1.85 Million (p 20)
  13. Georgia’s Privatized Probation System Traps the Poor (p 22)
  14. Judge Finds Unconstitutional Conditions at Massachusetts Jail, 11 Years After Suit is Filed (p 23)
  15. Ninth Circuit: California Lifers Have No Inherent U.S. Constitutional Right to Parole (p 24)
  16. Report Details Societal Effects of High School Dropout Rates – Including Incarceration (p 24)
  17. $1,500 Settlement for Wisconsin Prisoner’s Cold Cell Conditions Claim (p 25)
  18. California: Budget Cuts Target Rehabilitation Programs (p 26)
  19. Pennsylvania Judges Involved in Corruption Case Face Liability; 5,000 Convictions Thrown Out (p 26)
  20. $2,750 Settlement in California Prisoner’s Denial of Exercise Claim (p 27)
  21. Montana State and County Officials May be Liable for Injuries Caused by Private Prisoner Transport Company (p 28)
  22. NACDL Releases Report on U.S. Drug and Mental Health Courts (p 28)
  23. PLN Prevails in Public Records Suit Against GEO Group (p 29)
  24. Fifth Circuit: RLUIPA Does Not Create Individual Capacity Cause of Action (p 30)
  25. Virginia Sheriff Sentenced to 19 Months on Corruption Charges (p 30)
  26. Prison Psychologist Shoots Ex-Prisoner Boyfriend, Loses Her License (p 31)
  27. Georgia Jail Settles PLN Censorship Suit, Pays $149,759.21 in Damages, Attorney Fees (p 32)
  28. Oregon Prison Officials Treat Heart Failure with Antacid, Tylenol, Heat Pack (p 32)
  29. BOP Agrees to Pay $30,000 to Prisoner Assaulted by Guards (p 33)
  30. New Jersey: Class-Action Status Granted in Suit Challenging Conditions of Confinement at Passaic County Jail (p 34)
  31. Oregon Youth Authority Warden Gives Agency a Black Eye (p 34)
  32. U.S. Attorney Nominees Involved in Hiding Court Records (p 35)
  33. California: Furloughing Prison Employees Costing Taxpayers More (p 36)
  34. $60,000 Settlement in New York Jail Captain’s Assault on Prisoner (p 36)
  35. Sixth Circuit: Shy Bladder Suit Returned to District Court (p 37)
  36. Being in Unauthorized Jail Area Without Escape Intent Not a Crime in Indiana (p 38)
  37. Fourth Circuit Holds Individual Capacity Damage Claims Unavailable Under RLUIPA (p 38)
  38. Florida Prisoner Exonerated by DNA After Serving 35 Years (p 38)
  39. Ninth Circuit Holds Prosecutors Immune for Parole Recommendations (p 39)
  40. New York Prisoner Gets Mixed Verdict in Retaliatory Beating Ruling (p 40)
  41. Ninth Circuit: Race-Based Prison Lockdowns Must Satisfy Strict-Scrutiny Standard (p 40)
  42. Federal Circuit Rejects Prisoner’s Claim of Copyright Infringement (p 41)
  43. DC Circuit Reverses CCA/TransCor Non-Exhaustion Dismissal (p 42)
  44. Summary Judgment Reversed in Illinois Jail Suicide Suit (p 42)
  45. California: Indefinite Civil Commitment of Sexually Violent Predators May Violate Equal Protection (p 43)
  46. Reversal of Summary Judgment on 55-Day New York SHU Placement Claim (p 44)
  47. Mental Health Specialist May be Liable in California Jail Detainee’s Suicide (p 44)
  48. New York’s Catch-All Contraband and Anti-Smuggling Rules Unconstitutionally Vague (p 45)
  49. No Qualified Immunity for Excessive Force at Ohio Jail (p 46)
  50. No Liberty Interest Under Utah Parole Scheme (p 46)
  51. Sixth Circuit: RLUIPA Does Not Permit Monetary Damages (p 47)
  52. Ineffective Attempts to Protect Texas Prisoner Were Sufficient (p 47)
  53. No Qualified Immunity for Denial of Protective Custody to Ohio Prisoner (p 48)
  54. Illinois: Disabled Detainees’ Discrimination Claims May Proceed to Trial (p 48)
  55. California: Prison Appeals Coordinator Who Rejected Dental Complaints Held Liable for $1,500 in Damages (p 49)
  56. New York City Jail: $275,000 Settlement in Prisoner-on-Prisoner Assault (p 49)
  57. News in Brief: (p 50)

Secret Justice: Criminal Informants and America’s Underground Legal System

I. Introduction

Although it is almost invisible to the public, the use of criminal informants is everywhere in the U.S. justice system. From street corners to jails to courthouses to prisons, every year the government negotiates thousands of deals with criminal offenders in which suspects can avoid arrest or punishment in exchange for information. These deals typically take place off-the-record, subject to few rules and little oversight. While criminal informants—sometimes referred to as “snitches”—can be important investigative tools, using them has some serious costs: informants often continue to commit crimes, while the information they provide is infamously unreliable. Taken together, these facts make snitching an impor-tant and problematic aspect of the way America does justice.

The practice of trading information for guilt is so pervasive that it has literally become a thriving business. For exam-ple, Ann Colomb and her three sons were wrongfully convicted in 2006 of running a crack cocaine ring in Louisiana. They were convicted based on the fabricated testimony of dozens of jailhouse informants—participants in a for-profit snitch ring operating in the local federal prison. As part of that ring, prisoners were buying and selling information about pending cases to offer to prosecutors ...

New Details Regarding Race Riot at USP Florence

More details have emerged about the April 2008 race riot that occurred at the United States Penitentiary (USP) in Florence, Colorado, as prisoners who participated in the violent disturbance have pleaded guilty after being criminally charged.

The riot started after members of the Aryan Brotherhood (AB) began yelling racial epithets at African American prisoners on the recreation yard on April 20, 2008. The ABs were celebrating Adolph Hitler’s birthday, and some were drinking homemade alcohol. Around 200 prisoners were involved in the resulting melee. [See: PLN, August 2009, p.10].

It took almost 30 minutes after the brawl began for “sufficient staff” to respond, federal officials wrote in a court filing. “The staff then were able to separate the two groups [that were fighting].” In the process, two prisoners, Brian Scott Kubik and Phillip Lee Hooker, were shot to death by BOP guards.

“Staff formed a line of containment and pushed one group of inmates into the gymnasium, leaving the other group on the yard,” prison officials stated. “Since the gym inmates continued to be disruptive and antagonistic to-ward staff, they were secured in the gym alone without correctional officers and remained there for approximately four hours.”

Four white ...

From the Editor

As this issue goes to press we are getting settled into our new office in Brattleboro, Vermont. We have successfully consolidated our operations into one location. We also have just hired Adam Cook as our staff attorney who will be representing Prison Legal News in our censorship and public records litigation and select plaintiffs in catastrophic injury cases.

Mail addressed to our Seattle address is forwarded once a week. To avoid delays please write us directly here in Vermont and update your records to show our new contact information. When writing PLN please be brief and to the point because wading through a ten page letter to find a change of address request can sometimes result in the request not being seen by staff. We still have limited resources so please do not send us legal pleadings or voluminous documents unless we request them. If you win or settle a case, please send us that information so we can report it in PLN.

As the articles in this issue attest, we have had some success in various court cases recently. We would like to thank the attorneys who represented us in those cases and the readers who assisted in bringing ...

Dozens of CIA “Ghost” Detainees Unaccounted For

by Matt Clarke

A U.S. Dept. of Justice memo, released in April 2009, indicated the CIA had 94 people in secret prisons scattered around the world as of mid-2005, and the agency had “employed enhanced techniques to varying degrees in the interrogations of 28” of those prisoners which is the government definition of torture. The information in the memo dovetails with a September 2007 statement by then-CIA director Michael V. Hayden, who said “fewer than 100 people had been detained at CIA facilities.”

In September 2006, former president George W. Bush admitted the existence of the CIA’s secret detention program. Fourteen CIA prisoners were transferred to the military prison at Guantanamo Bay in Cuba, while other detainees with “little or no additional intelligence value ... [were returned] to their home countries for prosecution or detention by their governments.”

In 2006, Bush announced that he had discontinued the secret CIA prison program and admitted the U.S. had trans-ferred detainees to Pakistan, Egypt and Jordan, but never revealed the individual identities or fate of the 80 prisoners who were not sent to Guantanamo. Thus, the International Committee for the Red Cross was unable to locate those detainees or learn the ...

ACLU Report Applauds Michigan’s Efforts to Reduce Prison Population

by David M. Reutter

A November 2009 report by Elizabeth Alexander, Director of the National Prison Project of the ACLU, explores the history and effects of over-incarceration in Michigan and how the state has managed to reduce its prison population by roughly 8% during an era of unprecedented national prison growth.

The report concludes that steps taken by Michigan officials to reverse the “tidal wave of mass incarceration” without provoking a public backlash provide “a possible model for other states seeking a smarter and more affordable criminal justice policy.”

Between 1970 and 2005, the number of people imprisoned in the United States increased 700%. Our nation “locks up almost a quarter of the prisoners in the entire world. In fact, if all of our prisoners were confined in one city, that city would be the fourth largest in the country,” according to the ACLU report.

Although incarcerating more people lowers crime rates, it is sentencing and release policies – not crime rates – that determine the prison population. While crime rates continued to fall between 1991 and 1998, the rate of incar-ceration continued to increase. “During that time, the states that experienced below-average increases in their rate of incarceration actually experienced above-average ...

Report on Prison Privatization Plagued with Political Connections, Conflicts of Interest, Faulty Data

On May 21, 2010, the Private Corrections Institute, a non-profit citizen watchdog group that opposes prison privatization, issued a statement sharply criticizing a joint report by the Reason Foundation, a California-based libertarian think-tank that promotes the privatization of government services, and the Howard Jarvis Taxpayers Association (HJTA). The HJTA advocates for the rights of California taxpayers.

The Reason-HJTA report, which recommends that California increase the number of prisoners sent to for-profit facili-ties and privatize other aspects of the state’s prison system, was released in April 2010 on the heels of Governor Schwar-zenegger’s comments in favor of private prisons in his State of the State address. California already contracts with for-profit companies to house up to 10,468 prisoners in out-of-state facilities, and is likely to increase its reliance on private prison contracts.

The Reason Foundation has long been a proponent of privatization and has received funding from private prison companies – although that apparent conflict of interest was not mentioned in the joint Reason-HJTA report. Further, the report provides political cover for gubernatorial candidate Meg Whitman, who has expressed support for prison privatiza-tion. The HJTA has endorsed Whitman and produced commercials supporting her candidacy. Corrections Corp. of Amer-ica (CCA ...

Habeas Hints: Certificate of Appealability

by Kent Russell

This column is intended to provide “habeas hints” to prisoners who are considering or handling habeas corpus peti-tions as their own attorneys (“in pro per”). The focus of the column is habeas corpus practice under AEDPA, the 1996 ha-beas corpus law which now governs habeas corpus practice throughout the U.S.

CERTIFICATE OF APPEALABILTY: 2010

This Habeas Hints column revisits the Certificate of Appealability (COA) requirement in light of the 2009 amendment to Rule 11 of the Federal Habeas Corpus Rules, which now requires that, at the same time that a District Court Judge makes an order denying a petition for writ of habeas corpus, the judge must also make an order granting or denying a COA.
Traditional COA Requirement

Under AEDPA

If a federal habeas corpus petition is dismissed at the District Court level, to pave the way for a possible appeal, the petitioner must first obtain permission to appeal (a “Certificate of Appealability,” or “COA”) from the District Court. If the District Court denies the COA application, the petitioner can then attempt to obtain one by making a timely motion for a COA in the U.S. Circuit Court of Appeals. (The deadline to apply ...

$315,000 Settlement in Illegal Arizona Police Strip Search

The City of Scottsdale, Arizona paid $315,000 to settle a lawsuit claiming that a police officer illegally strip searched a citizen after responding to a 911 call.

When Heather Tonarelli, 19, and her friend Chris Smith heard loud knocks on Tonarelli’s apartment door at around 3:00 p ...

50,000 Illinois Felons Released Without DNA Collection

Approximately 50,000 felons have been released from Illinois prisons and discharged from probation supervision without having their DNA collected, state officials acknowledged in September 2009.

Illinois law requires all felons sentenced on or after August 22, 2002 to provide a DNA sample. The samples are stored in CODIS, a national registry run by the federal government.
Since the Illinois law took effect, some 10,000 prisoners have been released from state prisons without providing a DNA sample, according to the Illinois Department of Corrections. Another 40,000 probationers have been released from supervision without supplying samples, the state Attorney General’s office estimates.

“Serial murderers and rapists have probably remained on the loose, and families have continued to suffer,” stated DuPage County State’s Attorney Joseph Birkett. “We need to find a way to get that DNA.”

The failure to collect DNA from prisoners and probationers was attributed to delays in implementing the 2002 law. Such delays are nothing new; currently, there is a multi-year backlog for entering DNA samples into CODIS. Further, the State Police, which administers Illinois’ DNA collection program, did not have enough DNA sample kits, and probation officials lacked sufficient medical staff to draw blood ...

Salt Lake County Agrees to Pay $75,000 to Settle Jail Suicide Suit

On September 15, 2008, Salt Lake County, Utah agreed to pay $75,000 to the family of an ex-cop who killed himself at the Salt Lake County Metro Jail.

Arthur Anderson was arrested in January 2006 after his wife accused him of ramming his pickup truck into her car and ...

Book Review: Anne-Marie Cusac, Cruel and Unusual: The Culture of Punishment in America, 336 pp, Yale University Press, $27.50

Anne-Marie Cusac is probing important questions in her book, Cruel and Unusual: The Culture of Punishment in America. What are the underlying social values that have allowed a prison state as vast as the U.S.’s to thrive? How is this related to the many examples of violence in popular culture? Cusac argues that the explosion in the number of prisons, the astronomical rates of incarceration, and the current harsh conditions within prisons are due in part to the resurgence of retributive, physical punishments that view prisoners as people deserving of harsh violent treatment. While I agree, I do not believe Cusac has laid out the most convincing case for why that is so.

Cusac traces cultures of punishment throughout U.S. history. She documents the use of public executions, whippings and mutilations as punishment during colonial days. She locates their roots in both traditional English law and also strict Christian beliefs about the pervasive nature of sin and the Devil. After the American Revolution, reformers pinned part of the new country’s future on the ability to more humanely punish, marking a move away from the idea that all people who commit crimes are inherently evil.

While reformers ...

California Jail Detainee Attacked by Cellmate, Family Accepts $1.85 Million

The family of Jimmy Haws has settled a federal lawsuit against Monterey County and county officials for $1.85 million, two years after initiating litigation following an assault against Haws who, while a pretrial detainee at a jail in Salinas, California, was attacked by a cellmate and sustained permanent brain ...

Georgia’s Privatized Probation System Traps the Poor

by David M. Reutter

As the prison industrial complex has continued to grow, critics of privatization have adamantly warned that it would lead to financial incentives for for-profit companies to keep people ensnared in the criminal justice system. The privatized probation system in Georgia is the fulfillment of that warning.

When Georgia discontinued providing probation services for State Courts in 2001, many counties hired private com-panies to operate such programs. Richmond County currently contracts with Sentinel Offender Services.

Sentinel earns $35 a month in court-ordered payments for each probationer it supervises, $30 a month for probation-ers who owe money and are in a court-ordered program such as anger management, and a start-up fee and additional fees of $6 to $12 for those on a monitoring system. The company serves over 90 courts in Georgia and supervises more than 40,000 probationers each month statewide.

According to Crystal Page, Sentinel’s Augusta area manager, at any given time there are around 5,000 probationers in Richmond County. Approximately 3,000 are compliant with their payments, which would bring in more than $1 million annually based on the minimum supervision fee.

The case of Mariette Conner demonstrates that privatized probation services can ...

Judge Finds Unconstitutional Conditions at Massachusetts Jail, 11 Years After Suit is Filed

On September 24, 2009, Suffolk Superior Court Judge John C. Cratsley held in a class-action lawsuit that Sheriff Thomas M. Hodgson in Bristol County, Massachusetts was housing prisoners under cruel and unusual conditions.

Originally filed in 1998, the suit alleged that Hodgson was improperly triple-bunking prisoners at the Ash Street Jail, a pre-Civil War-era facility. The lawsuit also claimed that prisoners were being forced to sleep on the floor in “boats” – portable bunks – and in common areas. The lawsuit was amended in 2004 to add a claim concerning Hodgson’s practice of “dry-celling” prisoners at the Dartmouth House of Correction. “Dry-celled” prisoners did not have access to a toilet.

The plaintiffs in the case had moved for summary judgment, arguing that no genuine issues of material fact were in dispute given Hodgson’s admission to the practices at the jails.

Judge Cratsley, however, granted the plaintiffs’ motion only in part. “[T]here is no dispute,” the court wrote, “that the defendant (l) engaged in the practice of placing pretrial detainees on the floor and in porta-bunks, and (2) permitted over-crowding, as well as double bunking at the Ash Street Jail, to exist for pretrial detainees.” There was also “no dispute ...

Ninth Circuit: California Lifers Have No Inherent U.S. Constitutional Right to Parole

by John E. Dannenberg

In a major loss for California lifers, the Ninth Circuit U.S. Court of Appeals, in an en banc ruling, held that a second-degree murderer who had served 27 years on a 15-life sentence did not have a right to parole that devolved from either federal law or the U.S. Constitution. Affirming the U.S. District Court’s ruling, and vacating the intervening reversal of that ruling by a panel of the Ninth Circuit in Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), the en banc Court of Appeals held that petitioner Ronald Hayward was at most entitled to the rights provided by state law.

The appellate court further held that federal habeas corpus challenges to the denial of parole by California lifers did not fall into the administrative exception that excused the need for a Certificate of Appealability (COA), expressly overrul-ing White v. Lambert, 370 F.3d 1002 (9th Cir. 2004) [PLN, March 2005, p.24] and Rosas v. Nielson, 428 F.3d 1229 (9th Cir. 2005). A COA in such cases may now be obtained only upon an affirmative showing that reasonable minds could differ on the issues adjudicated by the ...

Report Details Societal Effects of High School Dropout Rates – Including Incarceration

by David M. Reutter

“Dropping out of high school [is] an apprenticeship for prison,” said Illinois State Senator Emil Jones at a 2006 Chicago conference on high school dropouts. An October 2009 report issued by Northeastern University’s Center for Labor Market Studies demonstrates the truth of that statement and the negative consequences for both dropouts and society as a whole.

The research report “was prepared to outline the employment, earnings, incarceration, teen and young adult parent-ing experiences and family incomes of the nation’s young adult high school dropouts and their better-educated peers in 2006 to 2008.” The report does an excellent job of fulfilling that mission, and the statistics it compiles paint a disturbing picture.

Upon dropping out of high school, the immediate consequence is a labor market problem. During 2008, 54% of the nation’s high school dropouts were unemployed. By contrast, the jobless rate for high school graduates was 32%, for those with 1-3 years of college it was 21% and for those with a bachelor’s degree or higher it was only 13%.

Race played a role in unemployment among high school dropouts, which was 69% for blacks, 57% for Asians, 54% for whites and ...

$1,500 Settlement for Wisconsin Prisoner’s Cold Cell Conditions Claim

The Wisconsin Department of Corrections paid $1,500 to settle a prisoner’s lawsuit alleging violations of his Eighth Amendment rights by being subjected to cold cell temperatures.
Waupan Correctional Institution prisoner Jevon D. Jackson filed a civil rights action for being subjected to un-constitutional conditions of confinement. His ordeal ...

California: Budget Cuts Target Rehabilitation Programs

Forced to trim its budget by $1.2 billion, the California Department of Corrections and Rehabilitation (CDCR) is cutting back on rehabilitative programs that help reduce recidivism.
On October 14, 2009, Donovan State Prison closed its “Right Turn” substance abuse program that provided treatment for about 500 prisoners. In so doing, Donovan became the eighth California prison that does not provide any type of professional substance abuse program.

CDCR spokesperson Peggy Bengs reported that, in prisons where professional treatment services are not provided, the CDCR would rely instead on programs run by outside volunteers, such as Narcotics Anonymous. To supplement those programs the prison system will reportedly employ prisoners who have been trained as substance abuse counsel-ors. Bengs described this as a “streamlined rehabilitation model,” which certainly sounds better than “gutting treatment services for prisoners.”

The CDCR’s budget reductions include $250 million in cuts to rehabilitative programs, amounting to almost 45% of the prison system’s $560 million budget for such programs. In addition to a 40% decrease in funding for substance abuse treatment, the CDCR is also slashing its budget for residential aftercare services.

In July 2009, the state was funding 8,162 post-release residential treatment beds that ...

Pennsylvania Judges Involved in Corruption Case Face Liability; 5,000 Convictions Thrown Out

by David M. Reutter

A Pennsylvania U.S. District Court has granted absolute judicial immunity to two former state court judges in a consolidated class-action civil rights suit. That immunity, however, only applied to judicial acts, allowing the case to proceed on the judges’ corrupt actions that were administrative in nature.

The lawsuit accuses Michael T. Conahan and Mark A. Ciavarella, Jr. of abusing their positions as judges of the Luzerne County Court of Common Pleas by accepting approximately $2.8 million in payoffs. The conspiracy involved the judges tak-ing bribes from the owners of the privately-operated Pennsylvania Child Care (PACC) and Western Pennsylvania Child Care (WPACC) detention facilities, and intentionally filling those facilities with juvenile offenders to generate profit.

The conspiracy also included Robert Powell, Robert Mericle, Mericle Construction, Pinacle Group of Jupiter LCC, Beverage Marketing of PA, and Vision Holdings.

Conahan used his judicial position to remove funding from the Luzerne Court detention facility, then “exerted influence to facilitate the construction, expansion and lease of the PACC facility.” On Luzerne County’s behalf, he signed a secret “Placement Guarantee Agreement” with PACC. He also granted an injunction to prevent the results of a Pennsylvania Department of Public Welfare ...

$2,750 Settlement in California Prisoner’s Denial of Exercise Claim

The California Department of Corrections and Rehabilitation (CDCR) paid $2,750 to settle a prisoner’s Eighth Amendment claim for denial of exercise. The May 7, 2008 settlement came in a lawsuit filed by prisoner Terrell Curry.

In his third amended complaint, Curry alleged that seven guards at Salinas Valley ...

Montana State and County Officials May be Liable for Injuries Caused by Private Prisoner Transport Company

The State of Montana and Montana counties may be held liable for mistreatment and injuries caused by private prisoner transportation companies, the Supreme Court of Montana held.
Jaydon Paull was arrested in 2003 by Florida officials after Montana authorities issued a warrant for his arrest due to a probation violation. American Extraditions Int’l (AEI), a private prisoner transport service, was hired by the Park County Sheriff’s Office to return Paull to Montana.

The trip from Florida to Montana did not go well. Over the course of nine days, Paull and other prisoners were alleg-edly denied sufficient rest stops to use the bathroom. As a result, some prisoners defecated and urinated on themselves.

On March 3, 2003 the driver lost control of the transport vehicle; the van rolled several times, finally resting on its top. Another AEI employee was killed while Paull reportedly was injured.
The accident occurred after the AEI driver refused to give the prisoners a bathroom break. The driver, according to Paull’s lawsuit, told him and the other prisoners to urinate into plastic cups or water bottles. While the prisoners were uri-nating, the driver started swerving the van in an apparent effort to cause the ...

NACDL Releases Report on U.S. Drug and Mental Health Courts

by Matt Clarke

In September 2009, the National Association of Criminal Defense Lawyers (NACDL) released a 74-page report on the state of America’s drug and mental health courts, reflecting the knowledge gleaned from over 130 expert witnesses who testified at hearings held in seven different states and questionnaires completed by 348 attorneys practicing in 40 states. The report heavily criticized drug courts in the U.S., but generally praised mental health courts.

Drug courts suffer from a lack of uniformity. The laws authorizing drug courts vary from state-to-state, county-to-county and even court-to-court within the same jurisdiction. Many drug courts reflect the personalities of the judges run-ning them, which results in a hodgepodge of procedures being used in such programs.

Drug courts generally offer to divert from prison defendants who successfully complete court-supervised drug treatment. How this is accomplished varies greatly. In some jurisdictions, the defendant may be required to plead guilty to be admitted into a drug court and may retain a criminal record even after successfully completing treatment. Other jurisdictions permit entry into the drug court before entering a plea, with the prosecution being dropped if treatment is successful.

Drug courts may also compromise the role of the ...

PLN Prevails in Public Records Suit Against GEO Group

In May 2010, Prison Legal News announced that it had prevailed in a public records lawsuit filed against Florida-based GEO Group (formerly Wackenhut Corrections), the nation’s second-largest private prison company.

PLN filed the suit in 2005 under Florida’s public records law after GEO failed to produce documents related ...

Fifth Circuit: RLUIPA Does Not Create Individual Capacity Cause of Action

The Fifth Circuit Court of Appeals has held that the Religious Land Use and Institutionalized Persons Act (RLUIPA) does not create a cause of action against defendants in their individual capacities. The Court also held that the denial of Christian chapel worship may violate RLUIPA and the First Amendment.

Leroy Harvey Sossamon III, a Texas state prisoner, filed a 42 U.S.C. § 1983 civil rights action in U.S. District Court against the Texas Department of Criminal Justice (TDCJ). He alleged that the French Robertson Unit’s policy of forbidding congregational worship in the chapel, and prohibiting prisoners on cell restriction from attending religious worship ser-vices, violated his rights under the First Amendment and RLUIPA. The district court granted the defendants’ motion for summary judgment based on Eleventh Amendment immunity and qualified immunity barring damages, and held injunctive relief was improper under § 1983 and RLUIPA.

Sossamon appealed. The Fifth Circuit appointed counsel, then decided that his claims for injunctive relief on the cell restriction issue were moot because the TDCJ had ended its policy of prohibiting prisoners on cell restriction from attend-ing religious services. The Court then turned to Sossamon’s monetary damages claims.

The appellate court noted that ...

Virginia Sheriff Sentenced to 19 Months on Corruption Charges

In December 2009, the former sheriff of Page County, Virginia was sentenced to 19 months in federal prison on corruption charges. The sentence was imposed following a guilty plea to an indictment that originally included 22 counts.

The story behind Daniel W. Presgraves, 47, is one of a home-grown politician whose fall from grace came on the heels of hobnobbing with many of Virginia’s most prominent politicians.
When Presgraves was elected sheriff of Page County, he won over the citizenry by such moves as using prisoners to deliver Meals on Wheels. He forged relationships with former governor George Allen, former attorney general Jerry W. Kilgore and House minority whip Eric Cantor.

The pinnacle of Presgraves’ rise to power came when former President George W. Bush gave a speech at Shenan-doah National Park in 2007. Sheriff Presgraves was a central figure among the welcoming committee, and boasted of shaking Bush’s hand.

Federal prosecutors, however, said Presgraves’ “arrogance” was his downfall. “He thought he was like king of the county and he could do anything he wanted to – and for some years he did,” stated Assistant U.S. Attorney Thomas J. Bondurant, Jr.

The residents of Page County considered Presgraves ...

Prison Psychologist Shoots Ex-Prisoner Boyfriend, Loses Her License

The North Carolina Psychology Board has revoked the license of a prison therapist who had a sexual relationship with a former prisoner – and shot him – upon his release.

While Lamount K. Friend was at Neuse Correctional Institution, he participated in therapy sessions with prison psychologist Kristel K. Rider. A sexual relationship between the two began on the April 2009 night that Friend was re-leased from prison. The romance did not last long, however.

Less than three weeks after his release, on April 21, Rider shot Friend in the back during an argument; the .38 bullet barely missed his heart, and he was hospitalized for three weeks. Rider claimed in a 911 call that Friend had pulled a knife on her, though he denied doing so. Rider did not have a concealed weapons permit for her handgun at the time of the shooting.

Rider was fired from her prison job following the incident for violating legal and ethics rules that prohibit psycholo-gists from having romantic relationships with their clients. Rider’s professional license was revoked on December 8, 2009; she can reapply for her license in one year.

No criminal charges were filed against Rider related to the shooting, though Friend ...

Georgia Jail Settles PLN Censorship Suit, Pays $149,759.21 in Damages, Attorney Fees

On April 22, 2010, Prison Legal News announced that it had settled a First Amendment censorship suit against Fulton County, Georgia and former Fulton County Sheriff Myron Freeman.

The lawsuit, filed by PLN in October 2007, claimed that prisoners at the Fulton County Jail were not allowed to receive subscriptions ...

Oregon Prison Officials Treat Heart Failure with Antacid, Tylenol, Heat Pack

In May 2007, Katherine Anderson was sentenced to 26 months in prison for embezzling $2,400 from her employer, a non-profit agency. She was sent to Oregon’s Coffee Creek Correctional Facility (CCCF). The 31-year-old mother of four was released 17 months later with a replacement heart valve, a shortened life span and no chance of having more children. According to her attorney, prison medical officials had ignored symptoms of an easily treatable illness called bacterial endocarditis.

Three months into her sentence, Anderson discovered a lump in her abdomen and began suffering from nausea and diarrhea. Within weeks she was having blurred vision, dizziness, cold chills, night sweats, extreme fatigue and shortness of breath. She experienced numbness in her face and legs, and her fingertips turned purple as she suffered from textbook symptoms of endocarditis and heart failure.

One nurse said she had nothing to worry about, another told her she had the flu, and a third nurse stated she was go-ing through menopause.

On October 27, 2007, Anderson had a fever, low blood sugar and a racing heart, according to her medical records. A nurse told her to eat something – she had an orange and a peanut butter sandwich ...

BOP Agrees to Pay $30,000 to Prisoner Assaulted by Guards

On July 14, 2009, the Federal Bureau of Prisons (BOP) agreed to settle a lawsuit filed by a prisoner who was beaten by guards.

On or about April 11, 2006, while being escorted to the Special Housing Unit (SHU) for allegedly assaulting a BOP employee, Kenneth Howard was tripped and ...

New Jersey: Class-Action Status Granted in Suit Challenging Conditions of Confinement at Passaic County Jail

On May 28, 2009, a U.S. District Court granted class-action status to prisoners seeking declaratory and injunctive relief for unconstitutional conditions of confinement at the Passaic County Jail (PCJ) in Paterson, New Jersey. At the same time, the court denied a motion to dismiss filed by defendant George Hayman, Commissioner of the New Jersey Department of Corrections. Hayman had argued that as a matter of law, he could not be held responsible for conditions at the 50-year-old facility.

“The law is clear that the system-wide failures at Passaic County Jail warrant class-action status, and we are pleased with the court’s decision,” said Emily Goldberg, a visiting assistant clinical professor at the Center for Social Justice at Seton Hall Law School, who represents the class members along with the ACLU of New Jersey. The class consists of “all persons who are now or will become incarcerated at PCJ during the pendency of this lawsuit” – a group of plaintiffs that could number into the thousands.

The complaint, originally filed in September 2008 by eight current and former PCJ prisoners, alleges First, Eighth and Fourteenth Amendment violations, specifically that PCJ suffers from 1) overcrowding with a resulting lack of privacy, loss ...

Oregon Youth Authority Warden Gives Agency a Black Eye

A “rising star” at the Oregon Youth Authority (OYA) pleaded guilty to six criminal offenses and was sentenced to four months in jail, probation and 160 hours of community service, and ordered to pay $11,500 in restitution. He gave OYA “a black eye that is going to be difficult to repair,” remarked Union County District Attorney Timothy Thompson.

Darrin N. Humphreys, 44, joined Oregon’s juvenile corrections system in 1987. He was later appointed Director of the RiverBend Youth Transitional Program, a 50-bed facility for offenders age 12-25 transitioning back into the community.

In 2007, Humphreys became the superintendent of the 300-bed MacLaren Youth Correctional Facility, Oregon’s largest juvenile prison. He resigned several months later, however, when the Oregon State Police began investigating claims that he stole construction materials and state property while employed at RiverBend.

Investigators found that Humphreys had claimed over $12,000 in false mileage reimbursements, re-roofed his house with state materials, took kickbacks from a contractor, and used juvenile offenders to build kitchen cabinets. He faced 26 charges, including theft, official misconduct, tampering with public records, tampering with a witness and menacing. Hum-phreys’ abrupt downfall also brought down OYA Director Robert Jester and Deputy ...

U.S. Attorney Nominees Involved in Hiding Court Records

by David M. Reutter

Two of the three nominees to be South Florida’s next U.S. Attorney have violated a basic tenet of court administration by acting to hide court records from the public.

In 2002, U.S. Attorney nominee Daryl Trawick, a Miami-Dade Court Judge, instructed the clerk’s office to alter the public docket in a criminal case against defendant Salim Batrony. A secret docket was maintained to allow Trawick to track what was actually happening in the case.

What the public saw in Batrony’s case were 10 phony docket entries that made it appear the felony drug money laun-dering charges against him had been dropped. In actuality, Batrony had pleaded guilty to the charges and was secretly cooperating with law enforcement authorities.

Florida’s Judicial Qualifications Committee (JQC) found no evidence of wrongdoing, but by the time the JQC investi-gated the phony docket, the false entries had been deleted from the public record. The JQC never asked to view the fake entries on the non-public side of the electronic docket maintained by the clerk’s office.

U.S. Attorney nominee David M. Buckner, a Miami lawyer, was involved in the detainment of Mohamed Kamel Bella-houel ...

California: Furloughing Prison Employees Costing Taxpayers More

Faced with an unprecedented budget deficit, California Governor Arnold Schwarzenegger ordered state workers to stay home three Fridays each month, which amounts to a 14% pay cut. Known as the “Furlough Friday” program, the cost-cutting measure, implemented in February 2009, was supposed to save the state a projected $1.7 billion. A recent report commissioned by Senate President Pro Tem Darrel Steinberg, however, concludes that the savings will be far less than originally anticipated.

“Plain and simple,” Steinberg said, not mincing his words, “It’s a poorly thought-out program.”
The Senate report highlights the fact that a shortage of prison staff to cover 24-hour positions has resulted in employ-ees often having to report to work on their furlough days. Those employees are paid in IOUs that will eventually cost the state – and taxpayers – much more. Under the furlough program, furlough days are not supposed to be cashed in by workers; rather, each furlough day is to be exchanged for a day off taken no later than June 2012.

In reality, “what is happening,” said Steinberg, “is the state is not reducing hours, they’re deferring paychecks.”

In fact, it may be worse than that. In the case of the prison ...

$60,000 Settlement in New York Jail Captain’s Assault on Prisoner

The City of New York paid $60,000 to settle a prisoner’s civil rights action. The case was succinctly defined as an incident where New York Department of Corrections (NY DOC) Captain Reginald Patterson not only “gratuitously punched an inmate, but also … generated an elaborate ruse to cover it ...

Sixth Circuit: Shy Bladder Suit Returned to District Court

The U.S. Court of Appeals for the Sixth Circuit affirmed in part and reversed in part the dismissal of a prisoner’s lawsuit alleging violations under 42 U.S.C. § 1983 and the Americans with Disabilities Act (ADA).

Danny Ray Meeks, a Tennessee prisoner, sued the Tennessee Department of Corrections (TDOC) and seven TDOC employees after being twice disciplined for failing to give a urine sample during drug tests. Meeks claimed that he suffered from pauresis, the clinical term for “shy bladder syndrome,” a medical condition that makes it difficult for some two million Americans to urinate in front of others.

In an unpublished per curiam opinion, the Court of Appeals affirmed the dismissal of Meeks’ § 1983 claims because he had failed to get the two disciplinary convictions overturned. A favorable ruling on Meeks’ claims, the appellate court wrote, “would imply the invalidity of his conviction or the length of his sentence,” citing Edwards v. Balisok, 520 U.S. 641 (1997) [PLN, July 1997, p.1].

The Sixth Circuit concluded, however, that a remand was necessary to determine whether Meeks was entitled to an injunction under the ADA. The district court had held that Meeks failed to allege he ...

Being in Unauthorized Jail Area Without Escape Intent Not a Crime in Indiana

The Indiana Court of Appeals held that when prisoners “have no intent or plan to flee from detention in the penal facility in which they are confined, they cannot be guilty of the crime of escape when they merely enter restricted areas of the facility without permission.”

That decision came in an appeal by the State of Indiana, challenging a trial court’s dismissal of escape charges brought against six prisoners at the Greene County Jail.

They were charged after jail officials learned that three female prisoners had removed metal ceiling panels in their cell block and climbed through the ceiling into the men’s cell block, usually after midnight. There they would hang out, play cards and have sex with three male prisoners, who went into the female cell block at least once. This activity occurred over a dozen times from September to October 2008. [See: PLN, July 2009, p.50].

The appellate court said that to prove the prisoners committed the offense of escape, the state had to establish “they intentionally fled detention in a penal facility.” The facts alleged in this case failed to show any such attempt to flee the jail. Instead, at most the facts ...

Fourth Circuit Holds Individual Capacity Damage Claims Unavailable Under RLUIPA

The Fourth Circuit Court of Appeals has held that the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc et seq., does not authorize individual capacity damages actions.

The Court’s ruling came in the appeal of prisoner Scott Lewis Rendelman, who brought a RLUIPA claim against the Maryland Department of Corrections (MDOC) for failing to provide him with a kosher diet at MCI-Hagerstown.

While in MDOC custody, Rendelman was informed that a kosher diet was not available. Instead, to meet the kosher dietary laws of Rendelman’s Orthodox Jewish religious beliefs, the MDOC offered prisoners a choice of two diets: a pork-free regular diet and a lacto-ovo vegetarian diet.

Although the diets were designed “to accommodate a broad spectrum of religious practices,” neither diet complied with the kashrut (the rules derived from the Torah governing food). This resulted in Rendelman being unable to eat many meals, causing him to lose 30 pounds.

The district court, in granting the defendants’ motion for summary judgment, held that prison officials did not violate the First Amendment or RLUIPA. On appeal, the Fourth Circuit dismissed Rendelman’s injunctive relief claim seeking a kosher diet.

The basis for the dismissal ...

Florida Prisoner Exonerated by DNA After Serving 35 Years

by David M. Reutter

After 35 years of proclaiming his innocence for the kidnapping and rape of a 9-year-old boy, James Bain, 54, was finally proven innocent and released from a Florida prison on December 17, 2009.
Of the 246 prisoners nationwide exonerated by DNA evidence, Bain served the most time, according to the Innocence Project of Florida.

At the time of the 1974 crime, the victim said his attacker had bushy sideburns and a mustache. The boy’s uncle, a former assistant principal at a local high school, thought it sounded like Bain, one of his former students.

Confronted by detectives with a photo lineup, the victim identified Bain. Questions remain as to whether the detectives steered the child to make an incorrect identification. In a subsequent deposition, the victim said he was asked to “pick out Jimmie Bain” among the photos.

Evidentiary testing available at the time failed to definitively link Bain to the crime. Despite that fact the jury rejected his alibi de-fense, supported by his twin sister, that he was home watching TV. Following his conviction Bain was sentenced to life in prison.

After four of his pro se petitions seeking DNA testing were thrown out ...

Ninth Circuit Holds Prosecutors Immune for Parole Recommendations

The Ninth Circuit Court of Appeals has held that prosecutors are absolutely immune for making parole recom-mendations.

Liza Brown shot her husband to death and entered into an oral plea agreement. “During the plea colloquy, the prosecutor stated that, if Brown avoided disciplinary problems while in prison, she would be released on parole in ‘half of the 15 years’ that was her minimum sentence.” Despite that assurance, prosecutors attended Brown’s parole hearings and advocated for her continued imprisonment. As a result, she served beyond the promised half of her sentence.

In 2003, the Ninth Circuit granted Brown’s federal habeas corpus petition, holding that since she had served more than seven and one-half years without disciplinary problems she “was entitled to release pursuant to the prosecutor’s promise made during the plea colloquy,” citing Brown v. Poole, 337 F.3d 1155 (9th Cir. 2003).

After her release Brown sued in federal court, alleging that the prosecutors who participated in her parole hearings “intentionally interfered with a contractual relationship when they recommended during Brown’s parole hearings that she remain in prison.” She also sued various parole board members, prison officials and the agencies they worked for. The district court ...

New York Prisoner Gets Mixed Verdict in Retaliatory Beating Ruling

The Second Circuit Court of Appeals delivered a mixed verdict in an appeal by New York state prisoner Cesar A. Espinal. Espinal’s § 1983 suit, which was filed pro se, accused a total of 14 guards and other prison officials of the New York State Department of Correctional Services (DOCS) of excessive force, denial of medical services, retaliation and conspiracy.

The district court had granted summary judgment to 12 of the 14 defendants on September 1, 2005, stating that Espi-nal failed to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act (PLRA), as he had not spe-cifically named them in his grievance. The two remaining defendants, Surber and Frasher, were granted summary judg-ment on Espinal’s conspiracy and retaliation claims, though not on the excessive force claims. In a three-day trial that concluded on November 1, 2006, a jury found Surber and Frasher had not used excessive force, and the court denied Espinal’s motion for a new trial.

On appeal, the Second Circuit found the district court had erred in dismissing Espinal’s claims against the 12 de-fendants, because the DOCS grievance procedures do not require that prisoners name specific individuals. Instead, they are directed to provide ...

Ninth Circuit: Race-Based Prison Lockdowns Must Satisfy Strict-Scrutiny Standard

In a ruling with potentially wide-ranging implications, the Ninth Circuit held that race-based prison lockdowns fail to meet the strict-scrutiny standard announced by the U.S. Supreme Court in Johnson v. California, 543 U.S. 499, 505-07 (2005) [PLN, July 2005, p.22], at least where no evidence is proffered to show a linkage between the identified perpetrators of violence and the larger racial group of prisoners that is subjected to lockdowns.

In September 2003, Dewayne Richardson, a black prisoner serving a life sentence, filed a § 1983 complaint alleging violations of his Fourteenth Amendment equal protection and due process rights, and his Eighth Amendment right to be free of cruel and unusual punishment, following a series of lockdowns at High Desert State Prison. As a result of the lock-downs, black prisoners remained on lockdown status for all but a few days of a nine-month period, for the sole reason that they were the same race as the alleged perpetrator(s) of an actual or planned assault.

In some cases, prison officials believed they had information implicating members of a prison gang in the incident which precipitated the lockdown. In one such instance, that information proved to have been fabricated by ...

Federal Circuit Rejects Prisoner’s Claim of Copyright Infringement

The U.S. Court of Appeals for the Federal Circuit affirmed the dismissal of a federal prisoner’s copyright infringement suit filed against Federal Prison Industries, Inc. (FPI, also known as UNICOR), the prison sweatshop arm of the U.S. Bureau of Prisons.

While working at the FPI factory at USP Leavenworth in Kansas, federal prisoner Robert James Walton created a series of calendars that were later produced and sold by FPI and distributed by the General Services Administration.

Walton copyrighted the calendars and brought suit against the United States for copyright infringement. The Court of Federal Claims dismissed his lawsuit for lack of jurisdiction, finding that Walton’s complaint was barred by 28 U.S.C. § 1498(b), which precludes claims of copyright infringement against the United States if the copyrighted work was created while in the “employment or service” of the federal government. The court reasoned that the calendars were created during Walton’s “employment or service” to the United States while he worked for FPI.

Walton appealed and the Federal Circuit affirmed. Passing on the question of whether he was an “employee” of FPI within the meaning of § 1498, the appellate court held that Walton’s lawsuit ...

DC Circuit Reverses CCA/TransCor Non-Exhaustion Dismissal

The U.S. Court of Appeals for the District of Columbia (DC) Circuit reversed a district court’s dismissal of a prisoner’s lawsuit for failure to exhaust administrative remedies and for conceding summary judgment by failing to respond to the defendants’ summary judgment motion.

The District of Columbia contracted with Corrections Corporation of America (CCA) to house DC prisoners at CCA fa-cilities in Ohio and Arizona. TransCor, a CCA subsidiary, was responsible for transporting prisoners to and from those facilities.

DC prisoner Ismail Malik was confined at a CCA prison in Youngstown, Ohio until he and other prisoners were trans-ported by TransCor on July 2-4, 2001 on a forty-hour bus ride to CCA’s Arizona facility. According to transport officers, the transfer was punishment for the prisoners’ membership in a class-action lawsuit against CCA and DC officials. [See: PLN, Aug. 1999, p.14]

During the bus ride the prisoners were handcuffed at the waist with a belly chain that was attached to another prisoner’s chain, and they all wore leg shackles. It was impossible for the prisoners to use the restroom due to the restraints, forcing them to urinate and defecate on themselves. The restraints also prevented Malik ...

Summary Judgment Reversed in Illinois Jail Suicide Suit

The Seventh Circuit Court of Appeals reversed a lower court’s grant of summary judgment to Illinois jail officials stemming from the in-custody suicide of a federal pretrial detainee.

On April 13, 2005, Stanley Bell was confined at the St. Clair County Jail in Illinois. At the time he was admitted to the jail he was taking three prescription psychiatric medications.

During his regular weekly visit to the facility, contract psychiatrist Dr. Hetal Amin met with Bell on April 21, 2005 to conduct a psychiatric examination. “Bell, who suffers from bipolar affective disorder, became highly agitated and refused to talk with Dr. Amin in the presence of a jail officer, insisting that he was entitled to a private consultation with the doctor.” Jail policy required a guard to be present. “A standoff ensued, with Bell growing increasingly belligerent and refusing to participate in an examination until the jail officer left the room and Dr. Amin refusing to conduct the examination without the jail officer being present.”

Amin did not conduct the examination, “discontinued all of Bell’s medications and planned to try to examine him again the following week when he returned to the jail.” Two days later, on April ...

California: Indefinite Civil Commitment of Sexually Violent Predators May Violate Equal Protection

In a January 28, 2010 ruling, the California Supreme Court held that Prop. 83, a November 2006 ballot initiative also known as Jessica’s Law, may violate constitutional guarantees of equal protection by subjecting sexually violent predators (SVPs), but not other eligible ex-felons, to indefinite post-incarceration civil commitment. The 5-2 ruling did not invalidate Jessica’s Law, but instead remanded the case to the trial court to give the state an opportunity to present facts to justify its differential treatment of SVPs.

Prop. 83 authorized the civil commitment of people adjudicated to be SVPs for an indefinite period of time, where formerly the law permitted commitment for only a two-year term, subject to applications for two-year extensions. Under Prop. 83, a per-son’s SVP status must be reviewed annually by the Department of Mental Health (DMH), which can authorize a petition for re-lease. An adverse finding by the DMH does not preclude the possibility of filing a petition for release, but in such cases the peti-tioner must prove by a preponderance of the evidence that he or she no longer qualifies for commitment as an SVP (i.e., is no longer both mentally ill and dangerous).

Critical to the California ...

Reversal of Summary Judgment on 55-Day New York SHU Placement Claim

The Second Circuit Court of Appeals has reversed the grant of summary judgment to a prison hearings officer in a lawsuit concerning a prisoner’s improper placement in administrative segregation.

On January 3, 2001, New York state prisoner Samuel Davis was incarcerated at the Elmira Correctional Facility when Sergeant Perry recommended his confinement in administrative segregation. “Perry had received confidential information from four separate sources in the previous two weeks indicating that Davis was involved in fights and extortion. The informants asserted that Davis used a weapon on occasion and targeted weaker inmates from whom he extorted commissary.”

At a January 16, 2001 hearing, prison hearing officer David Barrett relied on Perry’s report without interviewing Perry or the informants, stating that he trusted Perry’s “ability to assess their credibility.” Barrett agreed with Perry’s recommendation and ordered Davis transferred to administrative segregation in the Special Housing Unit (SHU). Davis remained in SHU for 55 days, from January 3, 2001 until his February 26, 2001 transfer to general population at Attica Correctional Facility.

On March 6, 2001, Davis prevailed on his administrative appeal “based on the absence of testimony from the author of the recommendation (Perry), or an assessment ...

Mental Health Specialist May be Liable in California Jail Detainee’s Suicide

In a tragic case involving a father who signed a citizen’s arrest for his son who later committed suicide while in pretrial detention, the Ninth Circuit upheld the grant of summary judgment to two sheriff’s deputies and the county that employed them. However, the Court reversed the grant of summary judgment to one of the county’s mental health specialists, Margaret Blush, who, it found, may have been deliberately indifferent to the detainee’s mental health needs when she took him off suicide watch that had been ordered by another specialist.

On July 26, 2005, Robert Clouthier had an argument with his father, became violent, destroyed a china cabinet and jumped through a plate glass window, causing himself to bleed severely. Robert’s family called the police, his father signed a citizen’s arrest, and Robert was taken into custody for felony vandalism. Agitated and upset, he was transported by ambulance to a hospital, where he refused to have his wounds stitched.

The next morning, after being booked into the Martinez Detention Facility, Robert was evaluated by Sharlene Hana-way, a Contra Costa County mental health specialist who determined, based on his responses to her questions and his history ...

New York’s Catch-All Contraband and Anti-Smuggling Rules Unconstitutionally Vague

In a suit for damages and injunctive relief, the Second Circuit Court of Appeals affirmed the district court’s de-termination that prison prohibitions against “smuggling” and “contraband” were unconstitutionally vague as applied to Mujahid Farid, a New York state prisoner serving a life sentence. Farid was disciplined for possessing and distributing a pamphlet, produced in violation of the internal by-laws of a prisoners’ organization, that criticized New York’s parole policies and practices. Additionally, the Court of Appeals vacated the district court’s grant of qualified immunity to the defendant prison officials on a motion for summary judgment, finding that the rights at issue were sufficiently clearly established and that a reasonable jury could conclude it was objectively unreasonable for the defendants to have acted the way they did.

In April 2000, while conducting random cell searches, Woodbourne Correctional Facility officers found copies of a 21-page booklet entitled The Politics of Parole: An Analysis by the Woodbourne Long Termers Committee. Farid, a member of the Long Termers Committee (LTC), was subsequently charged with violating prison rules governing contraband and smuggling in connection with distributing the booklet. Following a Tier III disciplinary hearing, Farid was found guilty, lost three months of ...

No Qualified Immunity for Excessive Force at Ohio Jail

The Sixth Circuit Court of Appeals affirmed the denial of qualified immunity to Ohio jailers on a detainee’s excessive force, denial of medical care, equal protection and state law claims.

On April 3, 2004, Ohio State Highway Patrol Trooper Helen McManes stopped William Harris, Jr. for speeding. After smelling alcohol, she administered field sobriety and breathalyzer tests. McManes told Harris that he was near the legal limit but she was not going to charge him with DUI. She said she was going to issue a speeding ticket and returned to her vehicle to write it up.

Trooper R.A. Cooper then arrived on the scene and ultimately arrested Harris for DUI and an outstanding misde-meanor warrant. Harris was upset and cursed at the officers; he was cuffed and transported to the Circleville City Jail. Circleville’s population is “primarily white” with only two to five percent of detainees being black, according to a jail em-ployee. Harris was black.

Police officers Glenn Williams, Phillip Roar and Robert Gaines were working at the jail when Harris arrived. Williams directed that Harris be taken to cell no. 3, a “drunk tank.” There, outside the view of surveillance cameras, the officers be-gan the ...

No Liberty Interest Under Utah Parole Scheme

The Tenth Circuit Court of Appeals held that a Utah prisoner had failed to state cognizable due process and equal protection challenges to Utah’s parole scheme.

In 1993, Robert Straley was convicted of sex crimes against a child and sentenced to two concurrent one-to-fifteen year sentences. The sentence was stayed and he was placed on probation; however, he violated probation in 1996 and was sent to prison. “On four separate occasions between January 2002 and August 2006, Straley was released from prison on parole. Without fail, though, Straley would violate the terms of his parole and return to prison.” He was finally required to serve the remainder of his sentence behind bars.

In 2005, Straley brought a state court challenge alleging that the “Board of Pardon’s (Board) authority to set a release date within Utah’s indeterminate sentencing scheme violated his federal due process and equal protection rights, Utah separation of powers principles, as well as his right to a speedy trial.” When his petition was denied, Straley filed a federal habeas corpus petition under 28 U.S.C. § 2241.

The district court denied the petition and the Tenth Circuit affirmed. Relying on Malek v. Haun, 26 F ...

Sixth Circuit: RLUIPA Does Not Permit Monetary Damages

The Religious Land Use and Institutionalized Persons Act (RLUIPA) does not allow money damages for violations of that statute, the U.S. Court of Appeals for the Sixth Circuit held on April 24, 2009.

The Court entered its decision in an appeal by Gerald W. Cardinal, a Michigan state prisoner who refused to eat non-kosher food after he was transferred to the Kinross Correctional Facility, which did not offer kosher food. Cardinal went without eating for eight days until he was transferred to a prison that served kosher food.

Cardinal sued Warden Linda Metrish, alleging violations of his First and Eighth Amendment rights plus a RLUIPA vio-lation. The district court granted summary judgment to Warden Metrish; Cardinal appealed, and the Sixth Circuit affirmed.

The appellate court rejected Cardinal’s First Amendment claim, holding that his allegations against the warden were not particularized enough to impose supervisory liability. The Court also rejected his Eighth Amendment claim on the basis that Cardinal was offered food, he just refused to eat it. “The plaintiff does not allege that he was denied food, but that he was denied kosher food,” the Court wrote. Finally, the Sixth Circuit ruled that RLUIPA did not permit money ...

Ineffective Attempts to Protect Texas Prisoner Were Sufficient

The Fifth Circuit Court of Appeals reversed a district court’s denial of summary judgment to prison officials who had failed to safeguard a Texas state prisoner, saying their ineffective attempts to protect him were sufficient.

Gregory Moore was incarcerated at the Beto Unit for sex offenses when a guard used the state’s sex offender registry to publish a list of prisoners who had been convicted of sex crimes, and urged reprisals against them. Beto guards brought copies of the list to work and distributed it to prisoners. Multiple assaults against sex offenders at the facility followed, resulting in a month-long lockdown.

During the lockdown, Moore received death threats and filed a life endangerment claim stating that a gang of prisoners had initiated a plan to “eliminate all sex offenders on the Beto Unit,” and that two named prisoners were part of the group. He also said he had overheard threats specifically directed against him. Moore was attacked by one of the prisoners he had identified about three months later. Before then, he was in and out of transient lockdown housing three times while four life endangerment claims were investigated. He was twice recommended for transfer by Unit Classification ...

No Qualified Immunity for Denial of Protective Custody to Ohio Prisoner

The Sixth Circuit Court of Appeals affirmed a lower court’s denial of qualified immunity in an Ohio prisoner’s lawsuit raising a failure to protect claim.

Ohio prisoner George Hamilton was the target of a “hit” by the Aryan Brotherhood (AB), “because [a] document from his cell had been used to prosecute Daryl Bocock – who, along with Daryl’s brother, Jesse, is a member of the Aryan Brotherhood – for the murder of Hamilton’s friend, Sam Huffman.” Hamilton first learned of the hit from his ex-girlfriend, Paula Cremeans, the Bococks’ sister.

In November 2003, Hamilton received a letter threatening his life and bearing “two lightning bolts, emblematic of the Aryan Brotherhood.” He reported the letter to prison officials, told them about the hit and said AB members had previously assaulted him and repeatedly tried to stab him at another prison.

Prison staff initiated “protective control” (PC) proceedings. Although the PC screening committee “believed that Hamilton had authored the letter himself,” it recommended placing him in PC. The recommendation was sent to the Ohio Department of Reha-bilitation and Corrections’ Bureau of Classification for final approval.

Jack Bendolph reviewed the recommendation and “questioned the risk that Hamilton faced, because Hamilton had ...

Illinois: Disabled Detainees’ Discrimination Claims May Proceed to Trial

In a lengthy and well-reasoned opinion and order, U.S. District Court Judge Elaine E. Bucklo, for the Northern District of Illinois, denied cross-motions for summary judgment in a class-action suit brought by paraplegics and partially-disabled pre-trial detainees currently and formerly housed at the Cook County Department of Corrections. The plaintiffs alleged violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, and section 504 of the Rehabilitation Act (RA), 29 U.S.C. § 794(a), and Judge Bucklo’s order, filed on November 25, 2009, paved the way for a trial on the merits of those claims.

In their amended complaint, the plaintiffs alleged that the defendants – the Sheriff of Cook County and Cook County itself – engaged in discrimination by failing to provide disabled prisoners with accessible toilets, sinks and shower facili-ties. As a result, they said they suffered a variety of injuries, including bed sores, rashes and infections arising from an inability to maintain proper hygiene. The plaintiffs additionally claimed they sustained injuries from falling while attempting to transfer from their wheelchairs to toilet seats, beds and shower chairs.

The defendants advanced several arguments in support of their motion for summary judgment, including: 1) that ...

California: Prison Appeals Coordinator Who Rejected Dental Complaints Held Liable for $1,500 in Damages

Proceeding pro se, California prisoner Earnest C. Woods II survived a summary judgment motion and was awarded $500 in compensatory damages and $1,000 in punitive damages after a jury found that CSP-Solano Appeals Coordinator Santos Cervantes had maliciously violated his Eighth Amendment rights by repeatedly rejecting, on procedural grounds ...

New York City Jail: $275,000 Settlement in Prisoner-on-Prisoner Assault

The City of New York paid $275,000 to settle a prisoner’s lawsuit claiming he sustained serious injuries as a result of a guard’s negligence.

The suit was filed by Ryan Scott, who was incarcerated at the George R. Vierno Center on Rikers Island on October 17, 2006 ...

News in Brief:

Argentina: Prisoners Maximiliano Pereyra, 25, and Ariel Diaz, 28, escaped from a maximum security facility in early April 2010. The men eluded capture by stealing full sheep skins and blending in with a large herd of sheep on a nearby ranch. Police said spotting the pair among thousands of sheep was “almost impossible.” But one official warned, “They can’t pull the wool over our eyes forever.”

Arizona: John Berry Martin, 53, was sentenced to 14½ years in prison on April 23, 2010 for killing his wife, Kathleen Martin, a sergeant at the State Prison Complex-Lewis in Buckeye. Court records indicate that Martin shot her in the shoulder during an argument on April 15, 2009. She was taken to a local hospital, where she later died.

California: On April 3, 2010, Det. Anthony Nicholas Orban of the Westminster Police Department was arrested on sus-picion of kidnapping and rape. Jeff Thomas Jelinek, a guard at the Chino Institution for Men, was arrested as an accomplice. Orban allegedly forced his way into a woman’s car, pointed his service weapon at her, and ordered her to drive to a nearby parking lot where he raped her. The woman escaped, ran to a ...

 

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