Skip navigation

Prison Legal News: November, 2011

Issue PDF
Volume 22, Number 11

In this issue:

  1. New York’s Sex Offender Civil Commitment Program Proves Expensive, Problematic (p 1)
  2. Eleventh Circuit Reverses Dismissal of BOP Failure to Protect Suit (p 1)
  3. From the Editor (p 6)
  4. Texas Jail Guards Smuggle Contraband in Tacos, Ramen Noodles (p 6)
  5. $725,000 Award in Negligent Medical Care Suit Involving Poisoned New York Prisoner (p 7)
  6. Oregon Jail Suicides Lead Grand Juries to Fault Prevention Efforts, Staff Training (p 8)
  7. Alabama Sheriff Capitulates to ACLU in Challenge to Denial of Attorney Visits (p 8)
  8. Incapacitation Good Cause for Untimely Exhaustion Under PLRA (p 10)
  9. Federal Court Rules on Exhaustion Issues for Joined Plaintiffs in Lawsuit Against CCA (p 10)
  10. California Appellate Ruling Holds Court Fee Inapplicable to Pre-2009 Convictions (p 11)
  11. Ninth Circuit Holds Serious Risk to Prisoner’s Health Posed by Year-Long Denial of Outdoor Exercise “Obvious” as a Matter of Law (p 12)
  12. PLN Files Censorship Suit Against NYDOCS (p 12)
  13. U.S. Supreme Court Holds Civil Contemptor Facing Incarceration Requires Procedural Safeguards Absent Counsel (p 14)
  14. Former Judges in “Cash for Kids” Scandal Sentenced (p 14)
  15. $370,000 in Annual Phone Revenue at Ohio Jail (p 15)
  16. PLN Sues Jails in Louisiana, Washington State Over No-Publication Policies (p 16)
  17. Ninth Circuit Holds That Absconding Tolls Supervised Release for Federal Parolees (p 16)
  18. Settlement Reverses Virginia DOC’s Ban on Jailhouse Lawyers Handbook (p 18)
  19. Summary Judgment for CCA Reversed in Filthy Jail Conditions Case (p 18)
  20. Hawaii Ex-prisoner Awarded $83,000 for Being Held 83 Days Past Release Date (p 19)
  21. Requests for Hawaiian Prisoner Workers Soar Due to Poor Economy (p 20)
  22. Boulder, Colorado Jail’s Postcard-Only Correspondence Policy Ends with Settlement (p 20)
  23. Ninth Circuit Rules Right to Court Access Violated When Lockdown Prevents Prisoner from Researching Issues Related to Direct Appeal (p 22)
  24. Nevada DOC’s Ban on Male Supervisors at Women’s Prison Invalidated (p 22)
  25. No Qualified Immunity for Guard Who Transported Prisoner in Dog Cage (p 24)
  26. Ninth Circuit Rules California’s Proposition 115 Not Unconstitutional (p 24)
  27. Ninth Circuit: California Prisoner Need Not Appeal from Satisfactory Grievance Response in Order to Exhaust Administrative Remedies (p 26)
  28. Report Blasts Sex Party at New York Juvenile Facility (p 26)
  29. Ninth Circuit Holds California Prison Officials Responsible for Providing Reasonable Accommodations to Disabled Prisoners and Parolees Held in County Jails (p 28)
  30. New York Court Sentences Rabbi to Four Years in Prison (p 28)
  31. Iowa Supreme Court Rules That Sex Offender Treatment Program Requires Due Process Protections (p 30)
  32. Colorado Prison Culinary Program Caters to Local Community (p 31)
  33. Conditions at New York Juvenile Facilities Deficient; State and Federal Officials Settle Lawsuit (p 32)
  34. Ten Years of Sham Segregation Reviews Result in $4,846 Damage Award for Arkansas Prisoner (p 32)
  35. Courts Cannot Order Federal Prisoners to Participate in IFRP (p 33)
  36. Ohio Prisoner Escape and Hostage-Taking Results in Lawsuit Against CCA, Settlement (p 34)
  37. Tenth Circuit Rules Denial of Halal Diet May Violate RLUIPA (p 34)
  38. Tenth Circuit Rules Oklahoma Prisoner Exhausted Administrative Remedies (p 36)
  39. Eighth Circuit Upholds Denial of Qualified Immunity on Medical Claims Against CMS (p 36)
  40. Florida Jail Offers Video Visits to Profiteer More From Prisoner Families (p 37)
  41. ICE, CCA Settle ACLU Lawsuit Regarding Health Care for Immigration Detainees (p 38)
  42. California: New Postsentence Rehabilitation Credits Inapplicable to Sentences of Convicted Murderers (p 39)
  43. “Public Concern” Test Does Not Apply to Prisoner Retaliation Claims; Speech Must be Consistent with Status as a Prisoner (p 40)
  44. Pennsylvania Councilman Takes Private Prison Company’s Donation, then Opposes Detention Center (p 40)
  45. Prospect of Prison Rape Used to Deter DUIs in South Africa (p 41)
  46. Washington Community Custody Violators Entitled to Time Served (p 42)
  47. Second Circuit Holds BOP Correct in Not Granting Good Conduct Credits for Time Spent in State Custody (p 42)
  48. Incarceration Alone Insufficient to Terminate Parental Rights in Michigan (p 43)
  49. Does Less Punishment Mean Less Crime? (p 44)
  50. BOP Evidence-Handling “Grave Miscarriage of Justice”; Charges Dismissed by Federal Judge (p 47)
  51. PLN Wins Partial Victory, Attorneys Fees in FOIA Video Tape Suit Against U.S. Attorneys’ Office (p 48)
  52. Ninth Circuit: PLRA Precludes Award of Attorney Fees Where Violation of Prisoner’s Rights is Not Affirmatively Established (p 49)
  53. News In Brief: (p 50)

New York’s Sex Offender Civil Commitment Program Proves Expensive, Problematic

by Matt Clarke

At an annual cost of $175,000 per civilly-committed sex offender, New York’s civil commitment program is the second most expensive in the country (Washington state is first at a cost of $177,000 per prisoner). As of December 2010, the more than $40 million-per-year program ...

Eleventh Circuit Reverses Dismissal of BOP Failure to Protect Suit

The U.S. Court of Appeals for the Eleventh Circuit reversed the dismissal of a failure to protect suit filed by a federal prisoner who claimed that he was attacked by a guard for participating in a prison investigation.

“John Doe” sued Harley Lappin, then the Director of the Bureau ...

From the Editor

In April 1990, the month before PLN published its first issue, Washington state enacted the nation’s first civil commitment law targeting sex offenders for indefinite imprisonment once they had completed their criminal sentences. Our results-oriented judiciary has upheld civil commitment against assorted legal challenges, finding it is a civil ...

Texas Jail Guards Smuggle Contraband in Tacos, Ramen Noodles

When Bexar County jail guard Alfred Casas, 32, agreed to bring some tacos to prisoner Jacob Keller in violation of jail rules, he probably didn’t think much of it. That changed when the tacos contained hacksaw blades intended for use in an escape attempt.

“It was one taco and ...

$725,000 Award in Negligent Medical Care Suit Involving Poisoned New York Prisoner

A New York Court of Claims has awarded $725,000 to the estate of a prisoner who died due to medical neglect after being poisoned at the Sing Sing Correctional Facility.

Rodney Williams, 20, was three weeks from being released after serving a sentence for car theft when he died ...

Oregon Jail Suicides Lead Grand Juries to Fault Prevention Efforts, Staff Training

A January 3, 2011 grand jury report found that suicide prevention was a major concern at the Multnomah County Detention Center (MCDC) in Portland, Oregon. Seventeen days later that finding was tragically underscored by the jail’s third suicide in 10 months.

On January 18, 2011, Michael J. Holmes, 37 ...

Alabama Sheriff Capitulates to ACLU in Challenge to Denial of Attorney Visits

The ACLU of Alabama has reached a settlement that allows its staff members to have consultation visits with prisoners at the Fayette County Jail (FCJ). The settlement was reached within six weeks after the ACLU sued the county.

The ACLU had been investigating allegations of serious violations of detainees’ constitutional ...

Incapacitation Good Cause for Untimely Exhaustion Under PLRA

The Seventh Circuit Court of Appeals has held that physical incapacitation constitutes good cause for failure to exhaust administrative remedies within the time frame set by prison officials. As such remedies are not “available” within the meaning of the Prison Litigation Reform Act (PLRA) when a prisoner is physically unable ...

Federal Court Rules on Exhaustion Issues for Joined Plaintiffs in Lawsuit Against CCA

On October 18, 2010, an Idaho federal court held that prisoners who were subjected to confusing rules and advice from prison officials regarding how to raise grievance issues had adequately exhausted their administrative remedies when they tried to raise those issues in disciplinary proceedings. The court also held that prisoners ...

California Appellate Ruling Holds Court Fee Inapplicable to Pre-2009 Convictions

The California Court of Appeal has held that a $30 to $35 court facilities fee imposed by a non-penal statute, Government Code § 70373, does not apply to cases in which the defendant pleaded guilty, or was found guilty by a jury, before the statute’s effective date of January 1 ...

Ninth Circuit Holds Serious Risk to Prisoner’s Health Posed by Year-Long Denial of Outdoor Exercise “Obvious” as a Matter of Law

by Mike Brodheim

In a 42 U.S.C. § 1983 suit brought by a California prisoner who was denied outdoor exercise for 13 months and 25 days while he was housed in a maximum security unit, the Ninth Circuit held that the risk to the prisoner’s health was serious ...

PLN Files Censorship Suit Against NYDOCS

On October 11, 2011, Prison Legal News filed suit against New York State Department of Correctional Services officials, including NYDOCS Commissioner Brian Fischer.

The lawsuit, filed in the U.S. District Court for the Southern District of New York, alleges First and Fourteenth Amendment violations related to the unconstitutional censorship ...

U.S. Supreme Court Holds Civil Contemptor Facing Incarceration Requires Procedural Safeguards Absent Counsel

The U.S. Supreme Court held on June 20, 2011 that counsel need not be provided to a person facing civil contempt for failure to pay child support so long as the state has “in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question: whether ...

Former Judges in “Cash for Kids” Scandal Sentenced

Two former Pennsylvania state court judges who were accused by federal prosecutors of running a multi-million dollar scheme to send juvenile offenders to privately-run prisons in exchange for bribes have been sentenced.

Former judge Mark A. Ciavarella, Jr., 62, who presided over the juvenile court system in Luzerne County, brought ...

$370,000 in Annual Phone Revenue at Ohio Jail

At the Montgomery County jail in Dayton, Ohio, taking more than a half-million dollars annually from prisoners who want to call their loved ones is actually called “giving.”

When asked by the Dayton Daily News about prisoners’ telephone access in Montgomery County, Major Daryl Wilson explained, “We give them as ...

PLN Sues Jails in Louisiana, Washington State Over No-Publication Policies

On September 9, 2011, Prison Legal News filed separate lawsuits against the Orleans Parish jail in New Orleans, Louisiana and the Chelan County jail in Washington State over mail policy-related issues.

PLN’s suit against Orleans Parish Sheriff Marlin Gusman, who oversees the Orleans Parish Prison (OPP) and its related ...

Ninth Circuit Holds That Absconding Tolls Supervised Release for Federal Parolees

The time a released prisoner serves on supervised release is tolled when he or she absconds, the U.S. Court of Appeals for the Ninth Circuit held.

Manuel Ignacio Juarez was deported following completion of his federal prison sentence for bank robbery, but later illegally re-entered the United States. At ...

Settlement Reverses Virginia DOC’s Ban on Jailhouse Lawyers Handbook

A settlement agreement between the Virginia Department of Corrections (VDOC) and two civil rights organizations that publish the Jailhouse Lawyer’s Handbook (JLH) overturned the VDOC’s ban on JLH and requires that five copies of that publication be placed in each of the state’s prison libraries. The settlement ...

Summary Judgment for CCA Reversed in Filthy Jail Conditions Case

On April 15, 2011, the Sixth Circuit Court of Appeals reversed a district court’s grant of summary judgment to Corrections Corporation of America (CCA) in a civil rights action alleging Eighth Amendment violations after CCA staff left a mentally ill prisoner in his squalid segregation cell for nine months ...

Hawaii Ex-prisoner Awarded $83,000 for Being Held 83 Days Past Release Date

Former Hawaii prisoner Wade T. Itagaki, who was held at the Oahu Community Correctional Center in Honolulu for 83 days after his sentence expired on Sept. 5, 2006, was awarded $83,000 by a federal jury in February 2011.

When prison officials realized their mistake, Itagaki, a homeless veteran, was ...

Requests for Hawaiian Prisoner Workers Soar Due to Poor Economy

by David M. Reutter

As budgets for nonprofit groups, schools, churches and state and city agencies have been squeezed, requests for Hawaii prison work crews to help with repair and maintenance projects have increased exponentially.

Prison officials said they were limited in their ability to meet the explosion in requests ...

Boulder, Colorado Jail’s Postcard-Only Correspondence Policy Ends with Settlement

The ACLU has settled a lawsuit on behalf of detainees at Colorado’s Boulder County Jail, ending a policy that limited prisoners’ personal correspondence to postcards. The policy went into effect in March 2010 and the ACLU filed suit five months later.

The jail enacted the policy due to an ...

Ninth Circuit Rules Right to Court Access Violated When Lockdown Prevents Prisoner from Researching Issues Related to Direct Appeal

by Mike Rigby

In an amended opinion filed on November 19, 2010, the Ninth Circuit reversed a district court’s dismissal of a prisoner’s claims that 1) his constitutional right of access of the courts was violated when, during the limited time period in which he could have appealed ...

Nevada DOC’s Ban on Male Supervisors at Women’s Prison Invalidated

The Ninth Circuit Court of Appeals invalidated a Nevada prison policy barring male employees from holding certain supervisory positions at a women’s prison. Circuit Judge Marsha S. Berzon delivered the opinion, holding that the ban violated Title VII of the Civil Rights Act of 1964.

The Southern Nevada Women ...

No Qualified Immunity for Guard Who Transported Prisoner in Dog Cage

The U.S. Court of Appeals for the Eighth Circuit affirmed a district court’s denial of qualified immunity to an Arkansas jail guard who transported a prisoner in a K-9 cage covered with feces, urine and dog hair.

In February 2007, jail guard Armand Zefferi transported Thomas Edward Morris ...

Ninth Circuit Rules California’s Proposition 115 Not Unconstitutional

The Ninth Circuit held that California’s Proposition 115, known as the Crime Victims Justice Reform Act, does not violate a defendant’s Sixth Amendment right to confront the witnesses against him.

Adopted by California voters in 1990, Prop. 115 added constitutional and statutory language to allow a probable cause ...

Ninth Circuit: California Prisoner Need Not Appeal from Satisfactory Grievance Response in Order to Exhaust Administrative Remedies

Clarifying “the boundaries of proper exhaustion” within the context of California’s prison system, the Ninth Circuit Court of Appeals held that a prisoner “has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in order to exhaust administrative remedies.”

In July 2004 ...

Report Blasts Sex Party at New York Juvenile Facility

An “ill conceived, poorly planned and uncontrolled” December 12, 2009 “Winter Social Dance” at a New York juvenile facility allowed offenders to engage in sexual misconduct with an underage girl and a suspected prostitute, according to a scathing report by the New York State Commission of Correction.

Investigators reported that ...

Ninth Circuit Holds California Prison Officials Responsible for Providing Reasonable Accommodations to Disabled Prisoners and Parolees Held in County Jails

In the latest chapter of a legal saga spanning 16 years, on September 7, 2010 the Ninth Circuit rejected a renewed attempt by California prison officials to shirk their responsibilities under the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA) and the federal Due Process Clause to provide reasonable ...

New York Court Sentences Rabbi to Four Years in Prison

In a case that garnered widespread publicity, Milton Balkany, a Brooklyn, New York rabbi, received a four-year federal prison sentence for extortion. U.S. District Court Judge Denise L. Cote found that Balkany, 64, dean of the Bais Yaakov day school, had tried to extort $4 million from hedge fund ...

Iowa Supreme Court Rules That Sex Offender Treatment Program Requires Due Process Protections

The Iowa Supreme Court held in two companion cases that the Iowa Department of Corrections’ (IDOC) Sex Offender Treatment Program (SOTP) deprived prisoners of due process of law.

Before 2001, Iowa prisoners “were eligible for a sentence reduction of one day for each day of good conduct and …could earn ...

Colorado Prison Culinary Program Caters to Local Community

Prisoners at Colorado’s Sterling Correctional Facility (SCF) are catering local events as part of a culinary training program at the prison. Their cuisine has such a fine reputation that in March 2011 students at one high school asked SCF to cater their prom.

Community groups seeking an affordable, quality ...

Conditions at New York Juvenile Facilities Deficient; State and Federal Officials Settle Lawsuit

On July 14, 2010, the U.S. Department of Justice (DOJ) and the State of New York settled a three-year investigation into conditions of confinement at four New York juvenile facilities.

The DOJ began investigating conditions of confinement at the Finger Lakes Residential Center and Lansing Residential Center in Lansing ...

Ten Years of Sham Segregation Reviews Result in $4,846 Damage Award for Arkansas Prisoner

An Arkansas state prisoner has been awarded $4,864 in damages for spending almost ten years in administrative segregation (ad seg).

David Williams is no angel. While serving time for murder, he was convicted of killing another prisoner.

Over the course of the next 17 years, though, Williams pretty much ...

Courts Cannot Order Federal Prisoners to Participate in IFRP

A federal criminal defendant cannot be ordered to participate in the Bureau of Prisons’ (BOP) Inmate Financial Responsibility Program (IFRP) as part of his or her sentence, the U.S. Court of Appeals for the Seventh Circuit held on June 11, 2010.

Shabaka K. Boyd was sentenced to 334 months ...

Ohio Prisoner Escape and Hostage-Taking Results in Lawsuit Against CCA, Settlement

Corrections Corporation of America (CCA) has agreed to a confidential settlement in a negligence suit following an escape from one of the company’s private prisons.

On April 2, 2007, prisoner Billy Jack Fitzmorris, held at the CCA-run Northeast Ohio Correctional Center, was taken to a hospital in Youngstown after ...

Tenth Circuit Rules Denial of Halal Diet May Violate RLUIPA

by Mike Brodheim

The denial of a halal diet to a Muslim prisoner may violate the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5, the Tenth Circuit held on April 2, 2010.

Proceeding pro se, Oklahoma state prisoner Madyun Abdulhaseeb (a/k/a ...

Tenth Circuit Rules Oklahoma Prisoner Exhausted Administrative Remedies

The U.S. Court of Appeals for the Tenth Circuit reversed the dismissal of an Oklahoma prisoner’s civil rights lawsuit against prison officials for refusing to provide him with a vegetarian diet consistent with his faith. In reversing the district court, the Court of Appeals held the prisoner had ...

Eighth Circuit Upholds Denial of Qualified Immunity on Medical Claims Against CMS

On July 20, 2010, the Eighth Circuit Court of Appeals affirmed in part a district court’s denial of summary judgment to prison officials on the medical claims of two Arkansas state prisoners.

Arkansas Department of Corrections (ADOC) prisoner Mack Langford, who is in his eighties, “suffers from a variety ...

Florida Jail Offers Video Visits to Profiteer More From Prisoner Families

A video visitation system has been installed at Florida’s Charlotte County Jail. Using money from the Inmate Welfare Fund, which is derived from profits from the canteen and other services to prisoners, the jail installed a system that allows virtual visits over the Internet.

The technology is the first ...

ICE, CCA Settle ACLU Lawsuit Regarding Health Care for Immigration Detainees

A lawsuit filed by the American Civil Liberties Union that alleged deficiencies in health care at the San Diego Correctional Facility (SDCF) in Otay Mesa, California has been settled, according to a December 16, 2010 press release issued by the ACLU.

The suit named as defendants the Immigration and Customs ...

California: New Postsentence Rehabilitation Credits Inapplicable to Sentences of Convicted Murderers

The California Court of Appeal held on June 22, 2010 that a new state statute, which authorizes postsentence credit against a determinate term of imprisonment for successful completion of approved rehabilitative programs, does not apply to an indeterminately sentenced convicted murderer whose sentence also includes a consecutive determinate component.

Prisoner ...

“Public Concern” Test Does Not Apply to Prisoner Retaliation Claims; Speech Must be Consistent with Status as a Prisoner

The “public concern” test does not apply to prisoner claims of retaliation, the U.S. Court of Appeals for the Seventh Circuit held on March 31, 2010. Nonetheless, to be entitled to First Amendment protection, a prisoner’s speech must not be inconsistent with his or her status as a ...

Pennsylvania Councilman Takes Private Prison Company’s Donation, then Opposes Detention Center

A $3,000 campaign contribution from private prison firm GEO Group has put a spotlight on a county councilman in Pennsylvania. The contribution was made only days after Ron Angle, president of the Northampton County Council, urged his colleagues to explore a proposal from GEO in October 2010.

GEO Group ...

Prospect of Prison Rape Used to Deter DUIs in South Africa

A South African ad campaign intended to prevent drinking and driving has garnered the ire of human rights groups.

The ads – the idea of Brandhouse Beverages – show a group of men talking about the qualities they look for in a partner.

“I’m looking for a special person,” says one ...

Washington Community Custody Violators Entitled to Time Served

The Washington State Court of Appeals has held that prisoners are entitled to credit for all time spent in custody on alleged community custody violations.

On June 30, 2003, Anthony Bakari Louis Bovan was sentenced to 73.5 months in prison and community custody on four robbery charges. The Washington ...

Second Circuit Holds BOP Correct in Not Granting Good Conduct Credits for Time Spent in State Custody

On March 26, 2010, U.S. District Court Judge Richard J. Holwell granted a habeas corpus petition filed by a federal prisoner challenging the refusal of the federal Bureau of Prisons (BOP) to award good conduct time (GCT) for time spent in state custody on a related state sentence. That ...

Incarceration Alone Insufficient to Terminate Parental Rights in Michigan

In addition to finding that a lower court committed legal errors in terminating a prisoner’s parental rights, the Michigan Supreme Court held that incarceration alone is not a sufficient reason for termination of parental rights.

While serving a prison sentence for drunk driving and theft charges, the two sons ...

Does Less Punishment Mean Less Crime?

The fiscal crisis facing virtually all state governments has brought to the forefront of public debate the following question: When do longer prison sentences and harsher punishment become counter-productive? Has the clock finally run out after four decades during which politicians at all levels of government built their careers by ...

BOP Evidence-Handling “Grave Miscarriage of Justice”; Charges Dismissed by Federal Judge

On March 18, 2011, a federal judge in Oregon dismissed criminal charges against a federal prisoner due to mishandling of evidence by the U.S. Bureau of Prisons (BOP).

In August 2009, BOP prisoner Jose Sanchez-Arce, 32, and another prisoner fought with a guard at a medium-security federal facility in ...

PLN Wins Partial Victory, Attorneys Fees in FOIA Video Tape Suit Against U.S. Attorneys’ Office

by Brandon Sample and Derek Gilna

In a lawsuit brought under the Freedom of Information Act (FOIA), Prison Legal News was awarded attorneys fees by a U.S. District Court in Colorado after the federal government agreed to release some of the records requested by PLN. On appeal, the Tenth ...

Ninth Circuit: PLRA Precludes Award of Attorney Fees Where Violation of Prisoner’s Rights is Not Affirmatively Established

The Ninth Circuit held that the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d)(1), precludes an award of attorney fees in cases where a prisoner obtained relief but did not affirmatively establish a violation of protected rights.

Proceeding pro se, state prisoner Clark Allen Kimbrough filed ...

News In Brief:

California: A woman believed to have robbed as many as 20 banks in Montana, Oregon and Washington while wearing wigs, which earned her the nickname “Bad Hair Bandit,” turned out to be a former prison nurse. Cynthia Van Holland, 47, was arrested on August 15, 2011 along with her husband ...