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Prisoner Education Guide

Prison Legal News: November, 2011

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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, which has the ability to confine up to 230 civilly-committed sex offenders (CCSOs) in two facilities, was at maximum capacity. Further, with the addition of around 70 new CCSOs each year, the annual costs are expected to increase by 
$12 million a year – which does not include the cost of opening new facilities or the expense of litigation associated with the state’s civil commitment statute.

The cost of the state’s sex offender civil commitment program might have grown even faster, but a decision by the New York Court of Appeals – the state’s highest court – limited the application of civil commitment to persons incarcerated or on parole for a current sex offense, and required that the petition that starts the commitment process be filed before an offender completes his or her sentence for a sex offense.

Article 10

New York’s Sex Offender Treatment and Management Act ...

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 of Prisons (BOP), and Rick Stover, a Senior Designator, after Doe was allegedly attacked by an “Officer Wooten” at the U.S. Penitentiary (USP) in Atlanta, Georgia for participating in an investigation of a BOP guard.

Doe claimed that Lappin and Stover violated his Eighth Amendment rights by failing to protect him. He sought an order enjoining the defendants from “transporting Mr. Doe to or through any BOP facility in Atlanta,” and prohibiting the defendants “from incarcerating Mr. Doe in a high security BOP facility and requiring the transfer of Mr. Doe to an appropriate and safe housing placement such as a medium or low security BOP facility or a state correctional facility.”

The district court dismissed Doe’s official capacity claims against Lappin and Stover, holding that both were entitled to sovereign immunity. Doe appealed.

In a per curiam unpublished opinion, the Eleventh Circuit reversed. Disagreeing with the district ...

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 matter to confine people against their will for what they might do in the future based wholly on what they have done in the past.

It is telling that with rampant sexual predation by priests and prison guards, not a single one of those sexual abusers has been deemed a “sexually violent predator” fit for civil commitment. As the civil commitment fad has spread across the country, states have discovered the obvious: that it is expensive to lock people up indefinitely in a prison dressed up as a mental health facility.

PLN has reported on civil commitment issues around the country. This month’s cover story fits squarely into that coverage with little in the way of surprises. Ironically, the costs associated with civil commitment seem to be the main factor in causing it to lose its luster; when push comes to shove, the mantra of “public safety” takes a ...

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 I opened it and there was nothing in it,” Casas said during a tearful interview with detectives. “I know it sounds stupid. I’m stupid for bringing those tacos. But it was a regular taco. I didn’t know [about the hacksaw blade].”

The blades were found during a cell search that also uncovered bed sheets made into ropes, jail uniforms dyed to look like street clothes, and a cut window bar.

Casas was charged with accepting bribes and providing an implement for escape for smuggling the tacos, which he had picked up from Keller’s girlfriend, Tiffany Contreras, in exchange for bottles of Xanax. Contreras testified against Casas at trial. “I said here’s the food. The bottom three have the blades and the two tacos on top don’t have them,” she told the jury. Contreras and Keller were not charged.

Prosecutors claimed that Casas had a Xanax ...

$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, was arrested on drug charges and booked into MCDC. The charges were dismissed the next day, but Holmes remained in custody on a parole violation warrant. He was segregated due to past fights with other prisoners.

Two days later a guard discovered Holmes’ body during an 11:30 a.m. security check. He was hanging by the neck from a bed sheet tied to a window bar above his bunk.

“Anytime you have a suicide, it demands action,” said Michael Shults, chief deputy of the corrections division. “This is unacceptable. It is a terrible tragedy. Anytime a loss of life happens, we need to take action.”

On January 21, 2011, Multnomah County Sheriff Dan Staton asked the Oregon State Sheriff’s Association to request that two commanders from outside agencies independently review MCDC’s practices. He also asked a national suicide prevention expert to review the county’s policies and ...

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 rights at county jails across Alabama. Its staff was gathering information through correspondence with detainees and former detainees, and by face-to-face interviews at jails.

Attempts to visit with prisoners at the FCJ were met with resistance by jail staff. Between July 2010 and January 2011, ACLU employees were refused opportunities to meet with two prisoners on multiple occasions.

FCJ detainee Felix Robinson contacted the ACLU by letter in May 2010 to request that he discuss with ACLU staff conditions at the jail. ACLU law fellow Jared Shepherd called the FCJ to schedule a visit with Robinson. However, he was advised that he could not visit with detainees unless he was on their visitation list or provided proof that he was the detainee’s attorney of record. Sheriff Rodney Ingle did not respond to an ACLU letter concerning the matter.

ACLU legal director Allison Neal met similar resistance when trying to ...

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 to pursue them, the filing of a grievance when the prisoner can do so meets the PLRA’s requirements.

The Seventh Circuit issued its decision in the appeal of Illinois prisoner Joseph R. Hurst, whose civil rights complaint alleged that prison medical staff had been deliberately indifferent to his serious medical needs. Hurst claimed that staff failed to promptly treat him after he suffered a stroke, violating his Eighth Amendment rights.

Under Illinois law a prisoner must file a grievance within 60 days of the event giving rise to the complaint. Hurst did not file a grievance until eight-and-a-half months after his stroke. He appealed the denial of his grievance, arguing that his untimely filing was the result of being “almost totally incapacitated” by the stroke “until just recently.” That, Hurst argued, constituted “good cause” to excuse his late filing. Prison officials disagreed and denied his appeal.

In response to ...

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 who joined the lawsuit had timely exhausted their administrative remedies when they completed the exhaustion process after the suit was filed but before joining.

Idaho state prisoner Marlin Riggs filed a civil rights action under 42 U.S.C. § 1983, alleging that prison officials at the Idaho Correctional Center (ICC), which is run by private prison firm Corrections Corp. of America (CCA), “failed to protect him from violence and were deliberately indifferent to his serious medical needs.” Riggs sought monetary, declaratory and injunctive relief.

Later, six other prisoners joined Riggs’ lawsuit based upon assaults that occurred after the case was filed. According to a 2008 study by the Associated Press, ICC had more reported violent assaults than at Idaho’s seven state prisons combined. The joined plaintiffs sought only declaratory and injunctive relief. The prisoners, represented by the ACLU, filed a motion for certification as a class-action suit.

The defendants ...

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, 2009.

In June 2008, six months before Government Code § 70373 went into effect, Bruce Wayne Davis entered a plea of no contest to a charge of being a felon in possession of a firearm. He was not sentenced, however, until March 2009 – after the statute went into effect – and the court imposed a $30 facilities fee.

The Court of Appeal reversed the imposition of the fee on June 18, 2010, finding that the statute imposes a fee on “every conviction for a criminal offense,” and that a “conviction” occurs when a defendant enters a plea of guilty or a jury returns a guilty verdict.

Since Davis’ plea was entered before January 1, 2009 and new laws are presumed to operate prospectively only, the court facilities fee could not be assessed in his case. See: People v. Davis, 185 Cal. App. 4th 998, 112 Cal.Rptr.3d 70 (Cal.App. 2 ...

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 and “obvious” to prison officials as a matter of law. The Court of Appeals further held that there was a genuine issue of material fact as to whether prison officials had acted reasonably under the circumstances in the case.

In July 2005, after two guards were stabbed and seriously wounded by a prisoner in Facility C at Salinas Valley State Prison (SVSP), prison officials placed the maximum security housing unit on lockdown. Nearly two months later they implemented a “modified program” that allowed non-contact visits but little else. In particular, the modified program denied prisoners all out-of-cell exercise.

After another month the Facility C Captain, G. Ponder, issued a memorandum explaining that the decision to return prisoners to “normal” programming would be made on a case-by-case basis. Under the terms of the memorandum, each prisoner would be interviewed, asked to commit in writing to participate in programs without violence, and ...

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 of PLN’s monthly publication, books and correspondence at NYDOCS facilities statewide.

Specifically, PLN claims that the NYDOCS has an “unconstitutional policy of prohibiting inmates from receiving any and all books, magazines, letters and postcards distributed by Plaintiff, including letters from Plaintiff’s attorney...,” which “deprives Plaintiff, as well as its subscribers, of important First Amendment rights and serves no neutral, legitimate penological purpose.”

According to PLN’s complaint, NYDOCS maintains a list of “disapproved vendors” that are not allowed to send publications to prisoners and PLN has been placed on that list because it accepts payment for its monthly publication and books in the form of postage stamps. As a result, state prison officials unilaterally censor “PLN’s monthly publications, books, subscription renewal letters, fundraising letters, informational brochures, routine subscription inquiry postcards and even letters from PLN’s attorney.”

“The actions of the New York Department of Correctional Services ...

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 the supporting parent is able to comply with the support order.”

A South Carolina family court ordered Michael D. Turner to pay $51.73 weekly to Rebecca Rogers to help support their child. Turner repeatedly failed to do so, and was held in contempt five times as a result. For the first four contempt findings he was sentenced to 90 days in jail; of those he avoided jail twice by paying, and only spent a few days behind bars the other two times.

The fifth time he was found in contempt Turner served six months in jail, which put him in arrears of $5,728.76 on his child support obligations. After his release the family court clerk issued a new “show cause” order against him. At a hearing during which neither Turner nor Rogers had counsel, the court again found Turner in contempt and imposed a 12-month sentence.

The ...

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 national attention to the “kids for cash” scandal and highlighted what many legal experts say is a dangerous practice in juvenile justice proceedings – children appearing in court and pleading guilty to crimes without representation by attorneys.

Prosecutors alleged that Ciavarella had sentenced thousands of juveniles to be confined in two private detention centers – PA Child Care and Western PA Child Care. He was paid almost $1 million for sending youths as young as ten years old to the facilities, many for first-time or minor offenses. The state of Pennsylvania has since expunged more than 5,000 juvenile criminal records in cases handled by Ciavarella. [See: PLN, June 2010, p.26; Nov. 2009, p.42; May 2009, p.20].

According to Laurence H. Tribe, a constitutional law expert, “It was a terrible lesson. It highlighted the dangers for juveniles who don’t know their rights, haven’t talked to a lawyer ...

$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 many calls as they need to let people know where they are.”

Of course all that giving has meant a windfall for Montgomery County and jail vendor Aramark Correctional Services, which will split more than $370,000 in revenue from sales of pre-paid phone cards.

The county’s share of the sales – 42%, or about $156,000 annually – must be spent “to support the current jail inmate population,” Wilson stated.

“We can’t go out and buy new cruisers with that money,” he said. “It has to be spent on the inmates, according to Ohio law.”

The county will reap an additional $200,000 in 2011 from collect calls, which Wilson said is used to offset the cost for an operator and pays for maintenance to the jail’s “heavy-duty telephones.”

Montgomery County jail prisoners must wait three days after being booked before they are allowed access to the commissary ...

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 correctional facilities, including the House of Detention, Old Parish Prison, Templeman V and Conchetta, alleges violations of the First and Fourteenth Amendments.

Beginning on September 15, 2010, PLN sent its monthly publication and copies of a book titled Protecting Your Health and Safety to 35 prisoners at OPP. However, pursuant to the jail’s mail policy, the publications sent by PLN were censored and rejected. The Sheriff’s website states that “No books, magazines, newspapers or periodicals of any kind” can be mailed to prisoners.

The mail policy specifies that books sent from publishers are to be reviewed by each facility warden to determine whether they are “acceptable.” However, the policy provides no standards or criteria for censoring and excluding books, and books sent from distributors such as PLN (as opposed to publishers) are disallowed. Jail officials “are not making individualized determinations about the content of each publication before rejecting ...

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 the time he was deported and when he returned to the U.S., Juarez was still on three years supervised release following his federal prison term.

Upon re-entering the U.S., Juarez did not notify his probation officer that he had returned or where he was living. Two years passed and Juarez was convicted and sentenced to state prison in California for two robberies.

By then a federal warrant had been issued for violation of the conditions of his supervised release. After serving his state sentence, Juarez was taken into federal custody and his supervised release was revoked. He was sentenced to 18 months in federal prison following the revocation.

Juarez argued that the district court lacked jurisdiction to revoke his supervised release because the court’s revocation warrant was issued after his period of supervised release had expired. The Ninth Circuit disagreed, holding that his supervised release was tolled ...

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.

The suit was filed by Mary Braswell, the conservator of prisoner Frank D. Horton, and raised claims based on the treatment Horton received at the CCA-managed Metro Davidson County Detention Facility (MDCDF) in Nashville. When Horton arrived at MDCDF he had a history of psychiatric treatment and behavioral problems that caused him to be considered a special needs prisoner. As a result, he was placed in segregation.

Sometime after 2006, Horton began refusing his daily opportunities to shower and exercise. CCA guards received approval to force Horton out of his cell to shower and for a mental health evaluation. He initially refused, but left the cell when “inflammatory agents” were used. It is unknown how many times that process was repeated.

It is clear, however, that after May 2007 no further attempts were made to remove Horton from his cell to take showers, clean his cell or receive mental health ...

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 for prisoner labor that have come in the wake of the economic downturn. “There has been a vast increase in requests in the past two years,” said Francis X. Sequeira, warden at the Oahu Community Correctional Center (OCCC). “We can only address a finite amount of requests.”

Hawaii Correctional Industries (HCI), an arm of the Department of Public Safety, is a “self-supporting, for-profit, quasi state agency.” It receives no general funding from the state and instead relies on prison labor contracts. HCI was created in 1990 to provide prisoners with “meaningful” work. They are paid 25 cents an hour and receive a lunch from the agency or organization that has contracted for their labor.

“Just with the inmate labor alone, this is a huge cost savings,” said HCI administrator Matthew Kaneshiro. “We know, whenever the economy goes down, our program goes up.”

The largest group of prisoners on “work lines ...

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 his criminal conviction, he was denied use of the prison law library and not provided with any alternative means of doing legal research because his unit was on lockdown; and 2) prison officials violated his Eighth Amendment right to be free from cruel and unusual punishment by forcing him to choose between his constitutional right to exercise and his constitutional right of access to the courts when the prison was not on lockdown.

After being convicted of two counts of burglary pursuant to a plea bargain, California prisoner Paul Eric Hebbe received a prison sentence of 18 years and four months. Upon appealing his conviction, his pro bono appellate counsel filed a so-called Wende brief, indicating that he could find no legitimate issues to bring to the court’s attention. The court then advised Hebbe that he could file a supplemental pro se brief to raise any issues that counsel ...

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’s Correctional Facility (SNWCF) was operated by Corrections Corporation of America (CCA) when a male guard impregnated a female prisoner in September 2003. The prisoner claimed “that her relationship with the guard stemmed from CCA’s refusal to provide the psychotropic medications she had long been prescribed to treat her schizophrenia.”

Nevada Department of Corrections (NDOC) Director Jackie Crawford ordered the state’s Inspector General (IG) to investigate. The IG interviewed approximately 200 prisoners, and “nearly all the inmates reported receiving substandard medical treatment.” The IG found “that SNWCF had become an ‘uninhibited sexual environment.’” He noted “frequent instances of inappropriate staff/inmate interaction,” “flirtatious activities between staff and inmates,” and “widespread knowledge” of “long term inmate/inmate sexual relationships.” Staff routinely smuggled contraband like alcohol, narcotics, cosmetics and jewelry into the facility in exchange for sex, according to the IG. The prisoners’ “sexual behavior – which they freely admitted was ...

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 III from the Crawford County Jail to the Pulaski County courthouse for a court appearance.

Morris had escaped while being taken to court in the past, so Zefferi decided to transport him in a dog cage used to haul police K-9s. The cage was filthy, containing dog feces, dog urine and dog hair. Morris, who was shackled with a belly chain, ankle restraints and handcuffs, was forced to lie in the feces, urine and hair for the nearly ninety-minute ride.
He complained afterward that the “restricted position [in the cage] caused [him] severe neck and hip pain which lasted for several weeks.”

In August 2007, Morris filed a 42 U.S.C. § 1983 suit against Zefferi alleging that his constitutional rights had been violated. The district court denied qualified immunity to Zefferi, holding that “the type of humiliation and degrading treatment alleged by Morris” constituted a clearly established violation of ...

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 determination at a preliminary hearing to be based on hearsay evidence presented by a qualified law enforcement officer.

Neil Peterson was charged in 2005 with statutory violations in connection with his ownership and operation of an automobile dismantling shop (a “chop shop”). A magistrate judge found probable cause to hold Peterson for trial based on the testimony of the lone prosecution witness at the preliminary hearing. That lone witness, the investigating officer, testified as to the hearsay statements of other witnesses against Peterson. Ultimately, a jury convicted Peterson of a number of misdemeanor charges.

Peterson subsequently filed suit pursuant to 42 U.S.C. § 1983, claiming that Prop. 115 violated his constitutional rights under the Fourth, Sixth and Fourteenth Amendments. He sought damages as well as injunctive and declaratory relief. The district court granted the defendants’ motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c ...

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, Quillie Harvey, a prisoner at Salinas Valley State Prison, was extracted from his cell with pepper spray. He was charged with refusing to comply with a cell search.

Prison officials subsequently failed to hold a hearing on the charge within 30 days as required by policy. In January 2005, Harvey filed a grievance complaining about the delay and requesting alternative forms of relief – either that the charge be dismissed or that he be provided access to a videotape of the cell extraction, which he claimed would prove his innocence.

In a written decision, prison officials partially granted Harvey’s appeal, agreeing to provide a hearing as well as access to the videotape. However, no hearing was held and no access to the video was granted. Thus, five months later, Harvey filed a “reminder” grievance which prison officials construed as an appeal of the earlier (partially-granted) grievance, and accordingly rejected as ...

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 in May 2009, administrators at the Goshen Secure Center (GSC) – a maximum-security juvenile detention facility for male offenders operated by the Office of Children and Family Services – proposed semiannual social events with “an atmosphere similar to a ‘typical high school prom.’” The hope was “that the events would ‘motivate youth behavior’ and ‘help stabilize some of the gang activity as well.’”

The events were initially intended for only “Honors” or “Transition” residents, but those limitations were soon discarded. Four violent offenders convicted of murder and armed robbery, who had extensive disciplinary records of violent conduct, destroying property, possessing contraband and other offenses, were the only residents to attend the Winter Social Dance in the GSC visiting room.

Officials knew nothing about the four female guests who were invited by the residents to attend the dance, but transported all of them to and from the event in state vehicles. The report ...

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 accommodations to disabled prisoners and parolees housed in county jails.

However, finding that the evidence upon which the district court relied was insufficient to justify the scope of the system-wide injunctive relief it had ordered, the Court of Appeals remanded the case to the district court to allow it to obtain additional evidence concerning the nature and extent of disability violations in the jails. 
In 1994, a class of all present and future California state prisoners and parolees with mobility, vision, hearing, kidney and learning disabilities (collectively referred to as the Armstrong plaintiffs) sued California state officials responsible for the operation of the Department of Corrections and Rehabilitation (CDCR) and the Board of Parole Hearings (BPH).

A series of decisions by the district court and the Ninth Circuit established that the ADA and RA applied to state prisoners, and that the defendants’ policies and procedures were inadequate and violative of ...

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 SAC Capital Advisors, LP.

Despite the dollar amount involved, Judge Cote imposed a sentence of 48 months, well below the 87-108 months suggested by the sentencing guidelines. Citing Balkany’s “lifetime of good work” and “generosity of spirit,” Cote nevertheless voiced concern that “the defendant has never come to terms with any of his criminal violations of the law.” Balkany must also serve three years of supervised release.

Balkany had contacted SAC’s attorney and threatened to disclose alleged insider trading in 2004, unless SAC agreed to pay his school and another school $2 million each. The attorney recorded Balkany’s phone calls and meetings, and Balkany was arrested after receiving two SAC checks totaling $3.25 million. Despite his statements about insider trading, no evidence regarding such trading was disclosed at trial. He was convicted by a federal jury in November 2010.

Balkany told the judge at sentencing that ...

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 a further reduction of up to five days per month for satisfactory participation in certain programs, including treatment programs” under Iowa Code § 903A.2(1)(a) (1999). Effective January 1, 2001, the law was amended to make prisoners “eligible for a reduction of sentence equal to one and two-tenths days for each day the inmate demonstrates good conduct and satisfactorily participates in any program or placement status identified by the director to earn the reduction.” Iowa Code § 903A.2(1)(a) (2001).

Under the 2001 amendment, if a prisoner refused to attend SOTP he would lose ninety days of earned time but retain the ability to accrue future earned sentence reductions.
Holm v. Iowa Dist. Ct., 767 N.W.2d 409, 415 (Iowa 2009). Section 903A.2(1)(a) was again amended in 2005 to provide that “an inmate required to participate in a sex offender treatment program shall not ...

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 caterer regularly turn to the prisoners at SCF. “It’s just quite common around here,” said Darcy Garretson, the superintendent and principal at Haxtun High School. “It’s kind of surprised me that it’s drawn attention. I’m just thinking, wow, a lot of community groups in town use them. It’s just not that unusual.”

Many of the students had already sampled prison-catered meals through banquets for the National Honor Society. According to Garretson, the prisoners also make tasty cinnamon rolls that are provided at town functions.

The culinary program has benefited both prisoners and the community that surrounds SCF. Prisoners are exposed to training and experience that can translate into a career in the food industry, while the community is able to cater events at lower cost.

“In a small town like what we are, there’s not a lot of catering services,” said Jeff Plumb, an ...

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, NY, and the Tryon Residential Center and Tryon Girls Center in Johnstown, NY on December 17, 2007.

DOJ investigators conducted four site visits between June and November 2008. Then-Governor David Patterson responded to the investigation in September 2008 by convening a task force charged with taking independent steps to remedy deficiencies at the four facilities.

On August 14, 2009 the DOJ issued a findings letter, pursuant to 42 U.S.C. § 1997(a)(1), describing numerous systemic violations.

Use of Force and Restraints

“Staff at the four facilities consistently used a high degree of force to gain control in nearly every type of situation,” the investigators wrote. “Anything from sneaking an extra cookie to initiating a fistfight may result in a full prone restraint with handcuffs. This one-size-fits-all control approach has not surprisingly led to an alarming number of serious injuries to youth, including concussions, broken or knocked-out teeth, and ...

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 stayed out of trouble. He had minor disciplinary infractions but none that involved violence.

Nevertheless, in June 1999, Williams was placed in ad seg after returning to the Arkansas Department of Corrections (ADOC) following a three-year stint in a Utah prison pursuant to an interstate compact agreement.

ADOC rules require annual classification reviews for prisoners held in ad seg. The reviews are supposed to assess whether the prisoner would pose a “serious threat to life, property, self, staff, or other inmates” if released to the general population.

More importantly, though, the Eighth Circuit had held that such classification reviews must be “meaningful” and not focus on the prisoner’s “past conduct in reviewing his ongoing ad seg status.” See: Williams v. Norris, 277 Fed.Appx. 647, 650 (8th Cir. 2008).

However, Arkansas prison officials just couldn’t get the fact that Williams had killed another prisoner out of their minds ...

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 imprisonment and ordered to pay a $500 fine and $300 special assessment. At sentencing, Boyd was ordered to pay the fine and special assessment through the BOP’s IFRP. The IFRP allows BOP staff to collect monthly payments from prisoners toward their financial obligations. Payment schedules are set on an arbitrary basis, and prisoners who refuse to participate in the IFRP lose the ability to work in UNICOR slave industry programs, cannot receive furloughs, are paid only $5.25 a month, and can only spend $25 a month for commissary. Despite all of these sanctions for non-participation, the IFRP is regarded by the BOP as “voluntary.”

Boyd appealed, arguing that the district court’s order mandating participation in the IFRP was erroneous and should be vacated. Reviewing for plain error, the Seventh Circuit agreed.

“The IFRP can be an important part of a prisoner’s efforts toward rehabilitation, but strictly ...

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 he suffered a head injury.

Fitzmorris used toe nail clippers to cut plastic flex cuffs used to restrain him to a hospital bed. He then overpowered a CCA guard, stole a car, robbed two banks and broke into an accounting business where he took an employee, Karen Zappitelli, hostage. He eventually released Zappitelli and surrendered to authorities after the police brought him a pizza. Zappitelli sued CCA, arguing that the company was negligent in allowing Fitzmorris to escape.

Zappitelli claimed that she suffered anxiety, sleeping problems and nightmares as a result of the hostage-taking incident, which lasted three hours, and was now afraid of being alone.

In the middle of a jury trial in state court, after 16 witnesses had testified, CCA agreed to settle the suit on confidential terms.

Zappitelli’s attorney, Rex Elliot, with the Columbus law firm of Cooper & 
Elliott LLC, said the settlement would allow Zappitelli ...

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 Jerry L. Thomas) filed suit in federal court in 2005, alleging 17 claims pursuant to RLUIPA and 42 U.S.C. § 1983 concerning his conditions of confinement. The district court dismissed eight of those claims for failure to exhaust administrative remedies, then granted summary judgment to the defendants on the remaining claims.

On appeal, the Tenth Circuit appointed counsel for the purpose of supplemental briefing on the issue of what constitutes a “substantial burden” on religious exercise in the RLUIPA context. After oral argument, the Court of Appeals vacated the district court’s judgment with respect to two of Abdulhaseeb’s RLUIPA claims – that he was denied his requests 1) for a halal diet by officials at the Oklahoma State Penitentiary (OSP) and 2) for halal meat for an Islamic feast (Eid al-Adha) by officials at the Great Plains Correctional Facility (GPCF).

With respect to those claims, on which the ...

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 exhausted his administrative remedies as required by the Prison Litigation Reform Act (PLRA).

While incarcerated at the Mack Alford Correctional Center (MACC) in 2006 and 2007, Oklahoma state prisoner Gary Little requested a strict vegan diet in accordance with his religious practices as a Seventh Day Adventist. A vegan diet consists of plant foods only and does not contain any animal byproducts such as eggs or milk. Instead, because the prison provided only “meat free,” “pork free” and “kosher” as options for religious diets, the warden approved Little for a “meat free” diet.

Little filed a grievance, claiming that he often went hungry because the no-meat diet contained animal byproducts that he could not eat. Little’s grievance was returned, stating he would be placed on a no-meat diet with double portions of vegetables, peanut butter and fruit if available. Little appealed the warden’s decision to the “Administrative Reviewing ...

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 of physical maladies and shows signs of mild mental retardation and dementia.”

In April 2003, Langford’s repeated complaints of severe stomach pain, vomiting blood and other symptoms were dismissed as “gas” and “treated” with antacid tablets. After he was found unconscious, Langford was hospitalized and “doctors discovered a problem with [his] gallbladder, ... and found cysts in both his kidneys.” After he was released from the hospital he continued to experience back and stomach pain.

“Starting in November 2004, Langford was examined at least sixteen times by Dr. Nnamdi Ifediora, an employee or contractor of Correctional Medical Services, Inc. (‘CMS’), the company that provides medical services in Arkansas prisons. Dr. Ifediora ... referred Langford to specialists, from whom he sought diagnostic recommendations.”

In August 2005, imaging tests “revealed a possible mass in one of Langford’s kidneys and cysts in both kidneys.” Langford again complained of stomach pain on November 28 ...

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 of its kind in Florida and was installed by Montgomery Technology, Inc., which hopes it will catch on and generate more business in other jails and prisons.

“If somebody is incarcerated here but their grandma is in Ohio, they can actually visit them in Ohio via their computers,” said Charlotte County Sheriff Bill Cameron, who said his staff will be monitoring the visits to prevent such things as virtual conjugal visits. “My staff will be having a screen that shows all the visits that are going on at any given moment so they can be watching.”

Revenue generated from the video visitation will be split between Montgomery Technology and the Inmate Welfare Fund. The cost to schedule a visit is about $33 – a fairly hefty fee. The jail has also implemented a program that generates revenue by running ads on the video visitation screens while prisoners and their families are ...

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 Enforcement agency (ICE), a branch of the U.S. Department of Homeland Security, as well as officials and employees of ICE and Corrections Corporation of America (CCA), the private company managing SDCF.

Originally filed in 2007 by the ACLU, the ACLU of San Diego and Imperial Counties, and the law firm of Cooley LLP, the lawsuit alleged that detainees at SDCF were routinely subjected to long delays before receiving treatment, denied necessary medication for chronic illnesses and refused essential referrals prescribed by medical staff.

According to the ACLU, “the lawsuit specifically cited the cases of 11 detainees, including several whose bipolar disorders and depression went untreated, a man who was forced to wait more than eight months for eye surgery and nearly suffered permanent disfigurement, and detainees who never received medical attention despite suffering from a variety of maladies including Type 2 diabetes, hypercholesterolemia, hypertension, abscessed and broken teeth, and ...

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 Manuel Jose Maes, Jr. was convicted of second-degree murder in 2004 and subsequently sentenced to an indeterminate term of 15 years to life, plus one year for use of a deadly weapon and four years for a probation violation, with the latter determinate terms to be served first, consecutive to the indeterminate term.

Effective January 25, 2010, Penal Code § 2933.05 authorized sentence-reducing credits for a prisoner’s successful completion of approved rehabilitative programs. Effective on the same date, however, Penal Code § 2933.2 barred accrual of credits under § 2933.05 for prisoners convicted of murder.

The California Department of Corrections and Rehabilitation determined that Maes, as a convicted murderer, was ineligible to receive postsentence credit under § 2933.05. Maes, however, contended that he was entitled to earn such credits against the determinate portions of his sentence.

Construing the statutory language, the Court of Appeal concluded that § 2933.2 bars ...

“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 prisoner, the appellate court found.

The ruling resulted from an appeal by Barbara Kasper, an Indiana Department of Corrections (DOC) librarian. Kasper was sued by Charles Watkins, a prisoner law clerk at the Miami Correctional Facility (MCF), who accused Kasper of retaliating against him.

During a meeting with Kasper, Watkins and other MCF law clerks, Watkins spoke out against a policy that Kasper had instituted which prohibited him and the other law clerks from assisting prisoners with their legal work. The next day, Kasper threw away some of Watkins’ personal belongings that he had failed to remove after being told to do so.

In addition, Kasper wrote a negative job evaluation and misconduct report, citing Watkins’ failure to remove his personal materials from the library. Watkins was subsequently removed from his law library job. Further, for 13 days, Kasper allegedly directed that Watkins not be given a pass to the ...

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 proposed that Northampton County seek a contract with the Immigration and Customs Enforcement agency (ICE) to house immigration detainees. The detention contract would be farmed out to GEO.

Angle and other supporters of the project touted it as a way to bring jobs to the area and increase tax revenue for the Bangor Area School District without adding new students. GEO’s donation to Angle came after the County Council authorized County Executive John Stoffa to act quickly in exploring the company’s proposal.

“They didn’t buy any influence,” Angle said of the contribution from GEO’s political action committee. “They bought my disinfluence.” Angle said he spent $650 of GEO Group’s donation to poll residents about their opinion on building the detention center on a 128-acre site in their community.

Local residents did not see a GEO-run facility as being a good neighbor. Based on that response ...

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. “Someone who can handle heavy situations with a smile,” another states. A third man then says, “These hands will never let you go.”

As the camera zooms out, it becomes clear that the men are prisoners in a cell.

The message “They’d love to meet you. Never drink and drive” then appears at the bottom of the screen.

Lukas Muntingh of the Civil Society Prison Reform Initiative was critical of the ads, which began airing in late 2010.

“What is distressing is the near acceptance of sexual violence in prison and the fact that men are raped in prison. It is [now being] used to keep the public in fear of drinking and driving,” said Muntingh, who noted that if an ad directed at women used rape as a scare tactic, it would result in a public outcry.

Norman Reyneker, Brandhouse’s public relations director, said critics were taking ...

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 Department of Corrections (DOC) released Bovan to community custody on March 1, 2007, but he violated the conditions of his release three times.

He was arrested for the first violation in January 28, 2008. Bovan remained in custody 13 days before a DOC hearings officer found him guilty of the violation and sanctioned him to time served on February 11, 2008.

On May 4, 2008, Bovan was arrested for his second community custody violation. A hearings officer found him guilty, imposed a 30-day sanction and granted 10 days credit for time served from May 4, 2008 to May 14, 2008.

Bovan was arrested for his third community custody violation on August 6, 2008. He was found guilty on August 18, 2008 and his release was revoked, requiring him to return to prison until his sentence expired. The hearings officer granted 13 days of credit for time served in custody from ...

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 ruling, however, was later reversed by the Second Circuit.

On June 19, 2008, Frank Lopez was sentenced by Judge Holwell to a federal prison term for conspiracy to distribute crack cocaine. By then Holwell had served about eight years in state prison for a state drug charge stemming from the same conduct that resulted in the federal charges. Pursuant to U.S.S.G. § 5G1.3(b), Judge Holwell ordered that Lopez be given credit for all the time he had spent in state and federal custody since August 11, 2000. He also ordered Lopez’s federal sentence to run concurrent with his state prison sentence.

After completing the related state sentence, Lopez entered the BOP and noticed that the BOP had failed to award him GCT for the time he spent in state custody. He filed a habeas petition arguing that he was entitled to GCT for the time ...

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 of Michigan prisoner Richard Mason were taken into state custody after their mother, Clarissa Smith, allowed one of the children, who was three years old, to wander outside the home unsupervised.

A service plan was established by Michigan’s Department of Human Services (DHS). Pursuant to Smith’s request, the children were placed with their paternal aunt and uncle. When Mason’s prison sentence did not end as expected and Smith failed to fulfill her obligations under the service plan, DHS moved to terminate their parental rights.

Several court hearings ensued, with Mason only being allowed to participate in the first and last hearings telephonically, missing participation in five other hearings. When the court terminated his parental rights, Mason appealed. The lower court’s judgment was affirmed on appeal and the state Supreme Court granted review.

The Supreme Court held on May 26, 2010 that Mason had a right to ...

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 being “tough on crime”? In the state of New York, both lawmakers and voters are reaping the fiscal and societal benefits of a lower incarceration rate, a lower crime rate and less money expended on corrections as a result of criminal justice reform measures. Only time will tell if this trend is embraced by other states and the federal Bureau of Prisons (BOP).

In the past, politicians seeking to build their constituencies hailed high rates of incarceration as the sole reason for falling crime rates. The states and federal government, with few financial constraints, quadrupled the incarceration rate in the United States since 1970. The U.S. was not alone in this trend, with Britain doubling its incarceration rate and Japan increasing its rate by half. The U.S., however, distinguished itself during this time period by ratcheting up punishments for low-level drug crimes so that now 10- to 15-year ...

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 Sheridan, Oregon. Both were charged with assaulting a United States government employee. The other prisoner pleaded guilty but is likely regretting that decision based on what happened in Sanchez-Arce’s case.

Sanchez-Arce’s three-day trial began on March 15, 2011 before U.S. District Court Judge Michael W. Mosman, Oregon’s former U.S. Attorney and a judge who has a reputation for siding with law enforcement.

Not this time, however. As the trial moved toward jury deliberations, evidence that should have been provided to the defense and prosecutors continued to trickle in from the BOP.

Harold McCloux, one of Sanchez-Arce’s attorneys, argued that the evidence undermined the credibility of government witnesses, and some of the evidence was not disclosed until 30 minutes after the jury began deliberating.

Mosman spoke with one juror who was in tears about what to do and how to proceed after the additional evidence ...

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 a complaint in federal court alleging that a 1997 California Department of Corrections grooming regulation, codified at 15 Cal. Code Regs. § 3062(e), which required prisoners to maintain their hair no longer than three inches in length, violated his First Amendment right to free exercise of religion.

After the district court granted summary judgment to the state defendants, the Ninth Circuit enjoined enforcement of the grooming regulation. The appellate court then remanded the case to the district court to consider whether the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc, et seq., which was passed by Congress while Kimbrough’s appeal was pending, applied to his case.

On remand, Kimbrough filed a second amended complaint alleging violations of his rights under RLUIPA and successfully moved for several extensions of the preliminary injunction that enjoined enforcement of the challenged grooming regulation.

In November 2003 ...

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, Christopher Scott Alonzo, following a bank robbery in Auburn, California. Van Holland and Alonzo apparently met while Alonzo was serving time in an Idaho state prison and Van Holland worked as a contract nurse for Correctional Medical Services.

Florida: Lake County jail prisoner Larry Stone, 32, managed to bond himself out after exploiting a glitch in the facility’s phone system, according to a July 28, 2011 news report. The phone system was designed to refund charges when a call did not go through, but due to a software error it provided double refunds. Stone simply made calls and hung up until the refunds totaled more than $1,250 and he could post his own bond. He was re-arrested shortly after his release when jail officials figured out the problem with the phone system. The glitch has since been fixed.

Hawaii: When Perry Jay Griggs was incarcerated at mainland federal ...

 

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