Prison Legal News: February, 2011
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Volume 22, Number 2
In this issue:
- Mass Torture in America: Notes from the Supermax Prisons (p 1)
- Study: CIA Doctors ‘Gave Green Light to Torture’ (p 8)
- From the Editor (p 8)
- Florida Woman Settles Lawsuit Against Sheriff’s Officers for $67,500 After Arrest While in Premature Labor (p 9)
- Illinois Supermax Placement Procedures Unconstitutional (p 10)
- Is Operation Streamline a Billion Dollar Give-away to the Private Prison Industry? (p 11)
- Habeas Hints: The Year in Review (p 12)
- California: State May Be Liable for Delaying Medical Care to Prisoner’s Infant Child (p 14)
- Blind Texas Prisoner Dies after Confrontation with Guards (p 15)
- New U.S. Marshals Director Confirmed Despite Conflict of Interest with Private Prison Companies (p 16)
- Fifth Circuit Holds Texas Parole Revocation Witness Denial Violated Due Process (p 18)
- 1,295 Prisoners Scam Government for $9.1 Million (p 18)
- Physicians for Human Rights: CIA Performed Illegal Medical Experiments While Torturing Prisoners (p 20)
- Seventh Circuit Holds That A Prisoner’s Verbal Complaints About Racist Guards May Be Protected Speech (p 21)
- Mississippi DOC Closes Unit 32 (p 22)
- The Habeas Citebook: lneffective Assistance of Counsel, by Brandon Sample, Prison Legal News Publishing, 2010, pp.212 $49.95 (p 22)
- Florida Guard’s Conviction for Falsifying Use-of-Force Report Affirmed (p 23)
- Ninth Circuit Upholds Arizona Teenage Detainee Suicide Claim Dismissal (p 24)
- Denial of Qualified Immunity Reversed in Michigan Prison Wage Suit (p 24)
- $450,000 Award in New York Prisoner’s Negligence Claim (p 26)
- Washington State Sheriff’s Classification of Sex Offender Violates Separation of Powers (p 27)
- Kenyan Prisoners Allowed to Vote in Constitutional Referendum (p 28)
- Eleventh Circuit Affirms Injunction in Florida DOC Mental Health Conditions Pepper Spray Case (p 28)
- 9th Circuit: Prisoner Need Not Succumb to Threats in Order to Prevail on First Amendment Retaliation Claim (p 29)
- Correctional Medical Care Has Controversial Litigation History (p 30)
- Georgia: Flurry of Judicial Resignations Highlights Secrecy Behind Investigations (p 32)
- Homeland Security Inspector General’s Report Finds Additional Controls Needed to Ensure Prisoners’ Access to Phones at ICE Facilities (p 33)
- Texas Pays for Geriatric Prisoners, Rarely Grants Medical Parole (p 34)
- Report: New Jersey DOC Should Upgrade Prisoner Reentry Programs (p 34)
- $42,000 Verdict in Iowa Jail Excessive Force Case (p 35)
- Federal Prisoner’s Death at FCI Pekin Triggers FBI Investigation (p 36)
- Disability Rights Vermont Report Faults Staff for Disabled Prisoner’s Death (p 36)
- Onerous Ohio Sex Offender Restrictions Drive Some Underground (p 38)
- California Wrongful Conviction Lawsuit Settled for $7.95 Million (p 38)
- New Epidemic: Contraband Cell Phones in Prison Cells (p 40)
- Abuse and Assaults Continue at Pennsylvania Jail (p 41)
- Fourth Circuit Vacates Summary Judgment on RLUIPA Haircut Claim, but Case Dismissed on Remand (p 42)
- Feds Indict Two in Florida Prison Canteen Kickback Scheme (p 42)
- Head of Ohio Juvenile Facility Fired Following Complaints of Sexual Harassment (p 43)
- Virginia Prisoner Kills Cellmate, Requests Death Sentence (p 44)
- Floodlines: Community and Resistance from Katrina to the Jena Six, by Jordan Flaherty, Haymarket Books, 2010; $16.00, 292 pages (p 44)
- $240,001 Verdict in Boston Jail Beating Suit (p 45)
- Study Finds Discriminatory Jury Selection in Southern States (p 46)
- New York City Pays $9.9 Million to Settle Wrongful Conviction Suit (p 46)
- $33 Million Settlement in New York City Jails Strip Search Class-Action (p 48)
- Michigan Prison Doctor Liable for Late Prostate Cancer Diagnosis (p 48)
- Texas Supreme Court Rules Typed Copy of Grievance Decision Satisfies Chapter 14 (p 49)
- News In Brief: (p 50)
– Heart of Darkness, Joseph Conrad
“They beat the shit out of you,” said Mike James, hunched near the smeared plexiglass separating us. He was talking about the cell “extractions” he’d endured at the hands of the supermax-unit guards at the Maine State Prison.
“They push you, knee you, poke you,” he said, his voice faint but ardent through the speaker. “They slam your head against the wall and drop you on the floor while you’re cuffed.” He lifted his manacled hands to a scar on his chin. “They split it wide open. They’re yelling ‘Stop resisting! Stop resisting!’ when you’re not even moving.”
When you meet Mike James you notice first his deep-set eyes—and the many scars on his shaved head, including a deep, horizontal gash. He got that by scraping his head on the cell door slot, which guards use to pass in food trays.
“They were messing with me,” he explained, referring to the guards who taunted him. “I couldn’t stand it no more.” He added: “I’ve knocked myself out by running full force into the wall.”
James, who is in his twenties, has been beaten all ...
“Exterminate all the brutes!”
As described in the study, “In 2003, partially in response to a CIA Inspector General investigation that questioned the use of enhanced interrogation methods and criticized the agency’s failure to consult with OMS about the risks to detainees of waterboarding, OMS physicians assumed another role, providing opinions to the agency and lawyers whether the techniques used would be expected to cause severe pain or suffering and thus constitute torture.”
This advisory function came in addition to the physicians’ previous involvement in the torture of detainees through performing medical evaluations before and after interrogation, monitoring waterboarding sessions, and collecting information on the effectiveness and risks of various techniques.
The study, Roles of CIA Physicians in Enhanced Interrogation and Torture of Detainees, was authored by Leonard S. Rubinstein, the president of Physicians for Human Rights, and Brig. Gen. (ret.) Stephen N. Xenakis, a former Army psychiatrist who is now with the Center for Public Health and Human Rights. It is based on ...
A new study in the Journal of the American Medical Association (JAMA) reveals that physicians with the CIA’s Office of Medical Services (OMS) played an even greater role in facilitating the torture of detainees than was previously recognized.
As we move into the New Year we are striving to increase our circulation. We mail sample copies of PLN as well as information packs on an almost daily basis. But that is expensive and not as efficient as we would like. No one knows PLN better than our subscribers. If you find PLN useful and informative, please encourage others to subscribe. Right now we have approximately 7,000 subscribers. Our goal is to have at least 10,000.
One thing that more subscribers will do is reduce our per-issue printing and postage costs. Once our print run is over 5,000 copies it is significantly cheaper to print additional copies. The post office also gives bigger discounts to publications that mail more issues.
Despite the economic situation, publication costs continue to rise. The post office just announced that in April 2011 it will be raising the postage rate for publications. Printing costs have steadily increased as well. We are proud of the fact that in the past ten years we have expanded the size of the magazine from 36 to 56 pages and the cost of a prisoner subscription has only increased from $18 to $24 ...
by Paul Wright
In June 2010, Melanie Dawn Williams, who had been arrested by officers after allegedly running a red light on her way to the St. Vincent’s Medical Center emergency room in Jacksonville, Florida when she was in premature labor, accepted a settlement in her lawsuit instead of going to trial ...
An Illinois federal district court has held that existing Illinois Department of Corrections (IDOC) procedures for placing prisoners at the Tamms Correctional Center (Tamms) are inadequate to protect the liberty interest of IDOC prisoners to avoid confinement at the supermax facility. To cure the due process ...
by David M. Reutter
Operation Streamline, initiated in 2005 in Del Rio and expanded to much of the Texas and Arizona border, mandates that immigrants apprehended at the border must be detained, prosecuted and incarcerated in the criminal justice system in addition to the civil immigration system. This is a departure from previous policy in which most immigrants were only dealt with in the civil immigration system.
The result has been a mess. In Texas alone, 135,000 immigrants now have criminal records and many have done prison time under Operation Streamline before being deported (far from streamlining the process, the policy adds another layer of incarceration on top of the existing civil detention system).
While most researchers believe the program hasn’t deterred unauthorized immigration, it has affected the judicial system in serious ways. The federal courts are horrendously over-booked. Fifty-four percent of 2009’s federal prosecutions across the country were for immigration violations. In the Southern District of Texas, a district that includes Houston, a full 84 ...
A new “green paper” released on July 19, 2010, entitled Operation Streamline: Drowning Justice and Draining Dollars along the Rio Grande, takes a look at the impact of Operation Streamline on the private prison industry.
This column provides “habeas hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on habeas corpus under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice in federal courts throughout the United States.
Habeas Year In Review:
Supreme Court Term 2009-2010
Holland v. Florida, 130 S. Ct. 2549 (June 14, 2010).
The question in Holland was whether the AEDPA’s 1-year statute of limitations could be “tolled” (suspended) for equitable reasons after the state post-conviction proceedings had become final and before a federal habeas corpus petition was filed. In an opinion by Justice Breyer, the Supreme Court held that the one-year statute of limitations on petitions for federal habeas relief by state prisoners is subject to “equitable tolling”, whereby a petition that would otherwise be untimely is rescued by “extraordinary circumstances.”
In Holland, counsel (Collins) was appointed for the petitioner (Holland) on state and federal habeas. Despite Holland’s repeated attempts to contact Collins to remind him about the AEDPA limitations period, Collins didn’t respond to Holland’s communications and then failed to file a federal habeas petition before the AEDPA clock ran out. When Holland discovered that the deadline had expired, he filed a federal habeas petition pro se, five weeks late. Both the federal district court and court of appeals held that Holland’s petition was untimely, and that Collins’s conduct—while clearly negligent – did not amount to ...
by Kent Russell, Blaire Russell & Chandra Russell
In a complaint filed on behalf of herself and her daughter Esperanza, Denisha Lawson alleged that, while she was housed at Family Foundations - San Diego, a 40-bed residential facility run by Center Point, Inc., Esperanza sustained serious and permanent physical injury as a result of a delay in receiving medical treatment for a respiratory infection.
According to the complaint, Lawson was pregnant in November 2006 when she was placed at the Center Point facility under an alternative sentencing program for women prisoners with young children. She gave birth to Esperanza prematurely in March 2007.
When she was barely five weeks old, Esperanza developed severe respiratory problems.
Lawson allegedly asked facility personnel, over the course of more than a week, to obtain medical treatment for her daughter, who had stopped breathing on at least three occasions. Her requests were repeatedly denied; ultimately, however, one of the facility ...
The California Court of Appeal has held that the State may be vicariously liable for the acts or omissions of its employees in failing to provide needed medical care for an infant living with its mother in a private, community-based correctional facility operating under a contract with the California Department of Corrections and Rehabilitation.
Dockray was housed alone in a cell in the medical wing of the Estelle Unit in Huntsville. According to prison officials he began throwing urine on prison staff, then refused to obey orders to come out of his cell. Guards sprayed him with chemical irritants but he still wouldn’t leave. A five-man team of guards then entered Dockray’s cell and subdued and restrained him. The entire incident was videotaped.
A nurse examined Dockray after the cell extraction, and he was placed on a backboard and taken to the prison infirmary. He reportedly refused medical treatment and continued to be combative. He was then returned to his cell. Guards checked on him at 30-minute intervals.
Dockray interacted with guards the next morning. Just after noon, however, he was discovered lying facedown and unresponsive. He was taken to the prison infirmary, then transported to Huntsville Memorial Hospital where he was pronounced dead.
It appears that guards at Estelle killed a blind, mentally-ill prisoner by insisting that he come out of or be removed ...
Thord “Catfish “ Dockray, 42, a blind Texas state prisoner with a history of mental illness, died on May 13, 2010 following a violent altercation with prison guards.
Hylton, a former Acting Deputy Director of the U.S. Marshals with a lengthy career in law enforcement, was employed from June 2004 to February 2010 as the Federal Detention Trustee. Following her retirement she was nominated by President Obama to head the Marshals Service, which handles security for federal courthouses, apprehends federal fugitives and oversees the detention of federal prisoners awaiting trial or immigration proceedings.
During Hylton’s tenure as Federal Detention Trustee, GEO Group, the nation’s second-largest private prison company, was awarded a number of lucrative contracts to house federal prisoners. Those included a ten-year contract at GEO’s Western Region Detention Facility in San Diego, generating approximately $34 million in annual revenue; a 20-year contract to operate the 1,500-bed Rio Grande Detention Center in Laredo, Texas with an estimated $34 million in annual revenue; and a ...
On December 21, 2010, just days before recessing for the holidays, the U.S. Senate confirmed Stacia Hylton as director of the U.S. Marshals Service in spite of opposition by a coalition of human rights, citizens’ advocacy and criminal justice-related organizations that argued she had a conflict of interest based on her close connections with private prison firms.
Michael Williams, a Texas state prisoner, was released on parole after serving 21 years of a 99-year sentence. A few months after his release, a woman claiming to be his daughter accused him of assaulting her. Williams claimed he was with Samuel Oakley and Allen Nugent fishing 30 miles away from the place of the alleged assault at the time it allegedly occurred. He also claimed that the woman had demanded financial help and fabricated the charges when he refused to support her.
Williams was acquitted of the criminal charges, but the BPP revoked his parole based on the alleged assault. During the revocation hearing, the hearing officer refused to allow Williams to call several of the witnesses he requested, including Oakley and Nugent, because they were incarcerated in ...
The Fifth Circuit court of appeals held that the Texas Board of Pardons and Paroles (BPP) failed to comport with the due process requirements of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), when it revoked a parolee for a crime he had been acquitted of while refusing to allow him to call several of his witnesses because they were in jail.
In 2008, 1,295 prisoners – including 241 serving life sentences – bilked the federal government out of $9.1 million in fraudulent home buyer credits, according to a June 23, 2010 report by the Inspector General (IG) of the U.S. Treasury Department.
The home buyer credit program was designed to revive the housing market. For the 2008 tax year, the program provided a federal tax credit of up to $8,000 for first-time home buyers. The credit was later extended until May 1, 2010.
The IG’s report found that 1,295 prisoners who filed claims were not eligible for the home buyer credits they received because they were incarcerated at the time they claimed to have purchased their home and did not file joint returns. As such, their claims could not have been the result of purchases made with or by their spouses.
“This is very troubling,” said J. Russell George, the Treasury IG for Tax Administration.
“Congress created and modified the home buyer credit to stimulate the economy and help taxpayers achieve the American dream, not to line the pockets of wrong doers.”
The IRS is moving to block fraudulent claims and recover the credits ...
by Mark Wilson
According to a report released by Physicians for Human Rights (PHR) in June 2010, the Central Intelligence Agency (CIA) performed illegal non-consensual human medical experiments on high-value terrorism detainees in connection with torturing those detainees. Also see article on p. 8.
The PHR report was released following a two-year review of declassified but redacted government records related to the treatment of terrorism detainees subjected to Enhanced Interrogation Techniques (EITs), which included waterboarding (controlled drowning), sleep deprivation, excessive temperatures and infliction of severe pain.
The human-subject medical research was performed by doctors from the CIA’s Office of Medical Services (OMS). OMS physicians were present during the use of EITs, monitored the detainees’ medical condition and documented the EIT practices and outcomes.
Knowledge gained from this medical research was then used to refine future EIT protocol, determine the ability of detainees to endure severe pain, calibrate the level of pain caused by certain EITs, research the effects of sleep deprivation, and determine the advisability and effectiveness of using simultaneous combinations of EITs.
Following the 9/11 attacks, the Department of Justice’s (DOJ) Office of Legal Counsel (OLC) set up a legal framework to permit torture and protect ...
by Matt Clarke
Lester Dobbey, an Illinois state prisoner, filed suit pursuant to 42 U.S.C. § 1983 alleging that one morning before dawn, while observing five guards, all white, playing cards in the “officers’ cage,” he saw one of them get up to hang a noose from the ceiling of the room and swat it so that it swung back and forth, then sit back down and make a “crazy” gesture with “evil eyes.” Dobbey, who is black, filed a grievance to complain about the alleged misconduct. Subsequently, he was interviewed by an internal affairs officer. Then he wrote letters to various state officials, and to news agencies, describing what he had observed. About a month later, he was disciplined for allegedly disobeying a guard’s order. The disciplinary committee sustained the charge against Dobbey and imposed various sanctions against him, including the loss of his prison job. Dobbey filed suit, alleging cruel and unusual punishment, denial of due process and retaliation for his exercise of First ...
Retaliation for verbally complaining about a prison guard who hung a noose where prisoners could see it, the Seventh Circuit has held, may constitute an infringement of a prisoner’s First Amendment free speech rights.
The American Civil Liberties Union (ACLU), in collaboration with the Holland & Knight law firm, originally filed suit in 2002 on behalf of death row prisoners held in Unit 32. After remedies were obtained in that lawsuit, a new suit was filed in 2005 that extended to all prisoners housed at the unit.
While prison officials portrayed Unit 32 prisoners as the “worst of the worst” who deserved confinement at the supermax, the reality was that a significant percentage of the population was there only because they had HIV, were seriously mentally ill, or needed protective custody. “They were permanently locked down in solitary confinement with no possibility of earning their way to a less restrictive environment through good behavior,” the ACLU stated in a press release.
In the original suit, death row prisoners described profound isolation, unrelieved idleness and monotony, denial of exercise, intolerable stench and pervasive filth, grossly malfunctioning plumbing and constant exposure to human excrement. Each cell had a “ping-pong” toilet ...
A settlement agreement was reached in June 2010 to close the notorious Unit 32 at the Mississippi State Penitentiary in Parchman. The agreement provides for the dismissal of a lawsuit that challenged conditions at the supermax unit.
Law books aren’t easy to review.
That’s because they are unlike other books, as they are really collections of what others—courts—have written, and are thus actually the recitations of others.
The Habeas Citebook is precisely that book that many prisoners are seeking. For lawyers, their reference material is usually a casebook, with much of the text taken up by excerpts of cases, as decided by various courts.
This is not a casebook. But The Habeas Citebook does present a wealth of cases, on a plethora of subjects.
The introduction by Elizabeth Alexander, the former director of the ACLU National Prison Project, notes how court access for prisoners with meritorious habeas corpus claims has become even more difficult than it was previously.
Brandon Sample, in his introductory remarks, informs us that, given the political reality in the courts, most of the relief has been granted to petitioners who argue that their lawyers were somehow ineffective.
He presents the cases (most of which came from the circuit courts of appeals), which proved most favorable, and had relief found.
He also included real motions and briefs (with relevant names blacked out), so that people ...
Reviewed by Mumia Abu Jamal
On July 13, 2010, the Eleventh Circuit Court of Appeals upheld the conviction of a former Florida prison guard for making a false entry in a report with the intent to impede a federal investigation.
Before the Court was the appeal of Wilton Joseph Fontenot, formerly a sergeant at Union Correctional Institution. Fontenot and another prison guard, Clyde Daniel, tried to enter prisoner Corey Milledge’s cell to perform a cell inspection in November 2003. A violent altercation ensued.
Afterwards, Fontenot wrote a use-of-force report that indicated he followed prison rules and Milledge had attacked him through the feeding slot of his cell door. Control room guard Joni White, who could see some of the events unfold on surveillance cameras, reported details that differed from Fontenot’s account.
Daniel told an investigator he had falsified his report at Fontenot’s request. According to Daniel’s subsequent account, Fontenot entered Milledge’s cell in violation of prison rules and initiated the altercation by punching Milledge in the head. The incident ended when Fontenot choked Milledge into unconsciousness with a plastic trash bag. Milledge was 16 years old at the time.
Federal authorities charged Fontenot in a three-count ...
by David M. Reutter
Seventeen-year-old Jasper Simmons was charged with molesting a 10-year-old girl and was confined in Navajo County Jail, an adult facility. During his initial assessment on May 21, 2005, he denied receiving mental health counseling, having suicidal thoughts, or having a family history of suicide. One week later however, Jasper slit his left wrist with a razor. Nurse Genie Greason described the wound as “superficial cuts, scrapes, and abrasions”.
Jasper was placed on Suicide Watch Level I, from May 28, 2005 to June 8, 2005, when he was downgraded to Level II. By all accounts, his mood continued to stabilize and improve, but he was retained on suicide watch as a precautionary measure. That decision was to be re-evaluated at a July 19, 2005 case management conference.
On July 2, 2005, Jasper visited his parents from 1:30pm to 2:40pm, “neither of his parents suspected that he would attempt suicide later that day.” They believed he was in “pretty ...
The Ninth Circuit Court of Appeals affirmed a lower court’s grant of summary judgment to Arizona jail officials related to a teenage detainee’s suicide. The court vacated the dismissal of plaintiff’s state law claims and remanded for reconsideration.
In April of 2001, David Pickelhaupt was given a physical plant maintenance job at the Michigan Department of Corrections (MDOC) North Ryan Facility (NRF). Ava Roby, the Classification Director at the time, set Pickelhaupt’s wages at $3.04 per day because he had a state certified mechanics license, a certificate of completion in auto mechanics from a local community college and over 1,000 hours of training.
In April 2005 a new Classification Director, Montina Malone, reduced Pickelhaupt’s wages to $1.77 a day, concluding that he was not entitled to the higher pay rate because he was not using his mechanics license in the course of his prison job. This reduction occurred without any advance notice or a hearing.
Pickelhaupt sued in 2005 alleging the reduction in his wage without advance notice or a hearing violated due process. The district court denied summary judgment in part, holding genuine issues of material fact remained in dispute regarding whether the MDOC’s pay policies created a protected ...
The U.S. Court of Appeals for the Sixth Circuit reversed a district court’s denial of qualified immunity for Michigan prison officials accused of violating a prisoner’s due process rights.
Prior to his incarceration in 1988, New York state prisoner Kent Kruemer was a serious and experienced runner hoping ...
A New York Court of Claims has awarded $450,000 for injuries incurred as a result of a prison doctor negligently injecting a corticosteroid directly into a prisoner’s Achilles tendon.
Before the Court was the appeal of Domingo Torres Ramos, Jr., who was challenging his conviction of failure to report to the Thurston County Sheriff’s Office as a registered sex offender. In 1993, Ramon was convicted of two counts of sexual exploitation of a minor. At the time he completed his 42-month prison sentence in 1995, Washington did not require persons convicted of that crime to register as sex offenders.
When the legislature added sexual exploitation of a minor to the list of crimes requiring registration, Ramos registered in 2001. The Thurston County Sheriff’s Office classified him as a level II offender. Under that Office’s procedures, a level I offender poses a relatively low risk of recidivism, level II offenders pose an intermediate risk and level III offenders pose a high risk.
Effective September 1, 2006, all level II or III offenders have been required to report to the county sheriff in person every 90 days. When Ramos failed to report ...
The State of Washington Division II Court of Appeals has held that the legislature violated the separation of powers by allowing the sheriff’s office to classify sex offenders to levels of supervision without providing guidance.
To end the violence, the two main political parties agreed to share power and draft a new constitution with greater checks on executive authority, recognition of the United Nations human rights charter, land reform, and creation of a second parliamentary house. The new constitution was drafted and put to a national referendum on August 4, 2010.
Kenyan prisoners traditionally have been disenfranchised. However, prisoners at Shimo La Tewa prison in Mombassa filed a court petition requesting the right to vote in the referendum. The court ruled in June 2010 that they should have that right, and designated every prison as a polling station. Then the rush was on to register Kenya’s 50,000 prisoners in time for the referendum.
“It is a credible decision,” said Kenya National Commission on Human Rights member Hassan Omar Hassan. “The punishment is supposed to be reformative and when people are incarcerated they lose their freedom but other rights should stay.”
Kenya’s new constitution ...
When Kenya was torn apart by bloody civil strife following contested national elections in December 2007, it was not apparent that the political chaos could lead to the reform of prisoners’ voting rights. Yet that is exactly what happened.
On August 20, 2010, the Eleventh Circuit Court of Appeals upheld a district court’s order that found a warden and the secretary of the Florida Department of Corrections (FDOC) had “turned a blind eye” to a prisoner’s “mental health needs and the obvious danger that the use of chemical agents presented to his psychological well-being.”
The lawsuit in this case was originally filed on behalf of ten prisoners, alleging that the use of chemical agents on prisoners with mental illnesses and other vulnerabilities violated the Eighth Amendment’s prohibition on cruel and unusual punishment.
After damage claims against individual prison guards were settled, the district court held a five-day bench trial on the claims of prisoners Jeremiah Thomas and Michael McKinney.
As previously reported in PLN, the court concluded that Thomas and McKinney had “demonstrated that at times in which they were sprayed with chemical agents, they were unable to conform their behavior to prison standards due to their mental illnesses such that the DOC’s use of force for purposes of prison discipline amounted to cruel and unusual punishment.” [See: PLN, Sept. 2009, p.22].
To cure this constitutional violation, the FDOC was ...
by David M. Reutter
California prisoner Michael Brodheim (a PLN contributing writer) brought suit pursuant to 42 U.S.C. § 1983 alleging that the prison appeals coordinator, warden, and chief deputy warden retaliated against him for exercising his First Amendment right to petition the government for redress of grievances.
Brodheim filed grievances which were routinely screened out by Appeals Coordinator Cry. After one particular screen-out, Brodheim submitted a “Request for Interview” to Cry, objecting to Cry’s rationale for rejecting his grievance. He used language that Cry later claimed was disrespectful. Cry returned the interview request form to Brodheim, affirming his rejection of Brodheim’s appeal and warning Brodheim to be careful what he wrote and/or requested when he communicated with the appeals coordinator in the future.
Feeling threatened by the explicit (albeit non-specific) warning, Brodheim filed a staff complaint against Cry, asking ...
The Ninth Circuit has ruled that a prisoner threatened with retaliation for filing grievances may prevail on a claim of First Amendment retaliation even when the threat is non-specific and not carried out, and even if the prisoner does not succumb to the threat, so long as the threat would chill the protected activity of a prisoner of ordinary firmness.
The president of Pennsylvania-based CMC, Emre Umar, was named in the suit as being responsible for the harassment and firing of a CMC employee at a jail in Monroe County, New York who claimed she had an affair with him. The former employee, April D’Amico, stated in her federal lawsuit that Umar had told her “that she was a valuable employee; that he would always take care of her; and that if she ever tried to use their relationship against him that he ‘would destroy’ her.”
Alleging that she wanted to end their relationship, D’Amico claimed Umar harassed her by calling her dozens of times, then fired her when she failed to respond. She was terminated in February 2009.
The attorney representing Umar and CMC responded that D’Amico’s allegations were “baseless,” and that he is seeking not only dismissal of the lawsuit but has also raised counter-claims that D’Amico’s own misconduct cost the company “hundreds of thousands of dollars ...
Correctional Medical Care, Inc. (CMC), a private company that provides health care for prisoners in at least eight jails in New York and Pennsylvania, is embroiled in a lawsuit that alleges misconduct by corporate officials.
At least 21 Georgia judges have been disciplined by the state’s Judicial Qualifications Committee (JQC) or have resigned amid allegations of unethical conduct since April 2008. The high rate of action by the JQC has raised questions about corruption on the bench and the secrecy that shrouds JQC investigations.
According to the Committee, it received “the most complaints ever” in fiscal year 2010, with 488 judicial complaints. That compares to 376 complaints in FY 2009 and 373 complaints in FY 2008. The number of complaints in those years was elevated from previous years.
The April 2008 resignation of Alapaha Circuit Chief Judge Brooks E. Blitch III, whom the JQC publicly charged with levying unauthorized court fees, improperly ordering the expenditure of county funds and influence peddling, is seen as a tipping point that emboldened attorneys and other citizens to file more complaints. Blitch was later indicted on federal charges; he pleaded guilty and received three years’ probation and was fined $100,000 in December 2009. [See: PLN, July 2008, p.36; March 2009, p.48].
“I can tell you that persons, lawyers and litigants are feeling a lot more comfortable and a lot less apprehensive ...
by David M. Reutter
According to the report, although ICE has made “considerable progress in assuring detainees’ access to contractor telephone and pro-bono services at ... sites where the majority of illegal aliens are detained ... additional controls are needed to ensure contractor compliance....”
ICE currently operates 15 Service Processing Centers and Contractor Operated Facilities that house 10,000 immigrant detainees. An additional 20,000 ICE prisoners are held in 215 Intergovernmental Service Agreement detention facilities. ICE also operates “hold rooms” in the agency’s field and sub-offices which “presently do not offer telephone services.” [See, e.g., PLN, Sept. 2010, p.22].
Past complaints related to ICE telephone practices have included lack of phones in ICE “hold rooms” and many ICE contract facilities, “pro-bono” phone lines that are non-operable, and excessive charges for calls to detainees’ families and legal assistance organizations. Although the Inspector General’s report does not mention ...
A report issued by the Office of Inspector General of the U.S. Department of Homeland Security as part of an audit to determine whether Immigration and Customs Enforcement (ICE) officials are properly administering prison telephone systems found that changes must be made to bring ICE into full compliance with applicable standards and contract provisions.
In the Texas Department of Criminal Justice (TDCJ), geriatric prisoners – those over 55 years old – comprise only 7.3% of TDCJ’s population. However, they account for almost one-third of the prison system’s medical expenses. Geriatric prisoners average $4,700 in annual health care costs compared to an average of $765 for prisoners under age 55.
Further, the medical care system for TDCJ prisoners is nearly bankrupt despite an annual budget of close to a half-billion dollars. Recently, the University of Texas Medical Branch (UTMB), which provides health care to Texas state prisoners, had to lay off 363 employees due to an unexpected budget shortfall. UTMB announced in November 2010 that it wants to stop providing medical care for most TDCJ prisoners when its current contract expires in August 2011.
With TDCJ’s health care system near collapse and geriatric prisoners making up a large percentage of medical costs, it would make sense to parole those prisoners whose age or illnesses render them too infirm to be a danger to the public. That was the idea behind medical parole in Texas, known formally as “medically recommended intensive supervision.” Yet of the 4,000 prisoners recommended for ...
by Matt Clarke
The report noted that “while the majority of people completing the survey reported feeling hopeful about their reentry prospects, there are reasons for concern ....” Among those concerns were chronic health and mental health problems that require post-release follow-up treatment; difficulty in obtaining food stamps, public housing and other assistance for released prisoners with drug-related convictions; the lack of job placement resources; the absence of strong family ties in the community to assist with reentry; the burden of fees and fines owed; and a general lack of familiarity with money management, preventive health care and other societal skills among prisoners pending release.
It is generally accepted that the “revolving door” problem of recidivism exists partly due to a prisoner’s lack of skills to cope with a society that has moved on while he or she has been ...
A report by Rutgers University released in January 2010 concluded that the New Jersey Department of Corrections could be doing more to help prisoners successfully reintegrate into society upon their release. The report was based on the results of a survey of 4,000 prisoners completed in August 2009, comprising about 40% of the total number of New Jersey state prisoners released annually.
Rather than provide Slater ...
A federal jury has awarded $42,000 to a woman who was placed in a restraint chair for seven hours. On January 25, 2006, while incarcerated at the Scott County Jail in Scott County, Iowa, Lillian Slater had a painful flare-up of her Sickle Cell Anemia.
The Associated Press (AP) reported that “an autopsy concluded that the 36-year-old inmate suffered from no fewer than three serious illnesses – cancer, hepatitis, and HIV.”
According to the findings of the coroner and pathologist who examined Montoya, however, the only medication in his body at the time of death was a “trace” of Tylenol.
“He shouldn’t have died in agony like that,” said Coroner Dennis Conover. “He had been out there long enough that he should have at least died in the hospital.”
By “out there,” one can only assume Conover was referring to the fact that Montoya had been in the custody and control of the Bureau of Prisons and its medical staff, who are required to provide prisoners with medical care.
Montoya, whose cause of death was internal bleeding that resulted from a burst spleen, exhibited symptoms of cancer and hepatitis that would have been hard to miss – including dramatic weight loss, a swollen abdomen and yellow eyes, according to the coroner. His father, Juan Montoya, stated that his son “consistently ...
The November 13, 2009 death of Adam Montoya, a prisoner at the Federal Correctional Institution (FCI) in Pekin, Illinois, resulted in an investigation by the FBI.
Michael Crosby, 49, was arrested after he turned himself in on charges of selling prescription drugs. Crosby, who was on parole at the time, had a lengthy history of minor criminal misconduct that was mostly related to drug abuse and misbehavior while under the influence of drugs or alcohol. He also had a documented history of accidentally overdosing on his prescription medications and at least two serious suicide attempts. At the time of his arrest he was receiving outpatient mental health, psychopharmacological and substance abuse services. He was also obese, sedentary and receiving Social Security benefits for his disabilities.
Crosby was taken to CRCF, a minimum-medium security facility in the Vermont Department of Corrections’ (VDOC) integrated jail/prison system. One of the guards who transported Crosby to CRCF noticed that he was sweating profusely. When asked about the sweating, Crosby allegedly replied that he was a “big guy” and “not in very good shape.” It was undocumented whether the arresting and transporting guards adequately ...
In June 2010, the advocacy group Disability Rights Vermont (DRV) released a report faulting the staff of the Chittenden Regional Correctional Facility (CRCF) in South Burlington, Vermont in connection with the death of a disabled prisoner.
Public officials in Cleveland, Ohio have noticed that some registered sex offenders are dropping out of sight. When the officials attempted to confirm the offenders’ registered addresses, they found they didn’t live there. The reason for this development is Ohio’s sex offender residency restrictions, which prohibit registered sex offenders from living within 1,000 feet of a school or daycare facility.
Several communities have used local ordinances to expand those restrictions to include parks, libraries, churches and other locations. Such restrictions create large residency exclusion zones throughout Ohio cities that make it difficult, if not impossible, for registered sex offenders to legally find housing.
The Ohio Justice & Policy Center, a nonprofit law firm, announced in December 2010 that it would file suit if the city council in Greenville, Ohio passed an ordinance expanding residency restrictions for sex offenders so that such offenders would be effectively barred from living within the city limits. The proposed ordinance would ban sex offenders from residing within 1,500 feet of a school, preschool, daycare, library, park or playground.
“These laws are ineffective, they don’t increase public safety and, in the worst of cases, they undermine public safety by giving the community a false sense of security,” said David Singleton, director of the Ohio Justice & Policy Center.
Sex offenders in Ohio are required to register their addresses and other information with the sheriff’s office every 90 days for at least 10 years. Some must do so for life. The Ohio Attorney General’s office posts the registration information on a website; the alleged purpose of the site is to inform citizens about sex offenders in their communities.
If a sex offender registers an address that is within an exclusion zone, local law enforcement can arrest and prosecute them for violating the residency restriction statutes. An alternative is to register a false address outside the exclusion zones. However, although sex offenders who undertake the registration process are not required to prove their residency, they must sign a document stating the information is accurate and acknowledge that they are subject ...
by Matt Clarke
After serving 24 years in prison following his 1980 conviction, Goldstein was finally released based on new evidence that the police had coached the ...
A long-running lawsuit against the City of Long Beach, California for Thomas Goldstein’s wrongful murder conviction was settled in June 2010 for $7.95 million.
Nowhere is this problem more evident than in California, America’s largest state prison system. In 2009, 300 California prison employees were disciplined for suspected cell phone trafficking to prisoners, and about 100 of those staff members were fired. By mid-year 2010 an additional 150 prison employees had been disciplined.
With contraband cell phones selling for $500 or more, the problem is not going away anytime soon. In 2009, a California guard confessed to earning $100,000 in just 12 months by smuggling cell phones, according to Deputy Director of Adult Institutions Richard Subia.
Contraband cell phones are ubiquitous in every prison, from minimum-security facilities to death row, said Subia. In 2009, California prison officials confiscated 6,995 illegal cell phones, up from 2 ...
For decades, prison officials across the U.S. have lined their pockets with multi-million dollar kickbacks from telephone companies that are awarded lucrative prisoner phone service contracts. In doing so, they unwittingly created an “epidemic” that they are now desperately scrambling – and largely failing – to control. Namely, the excessive phone rates that are forced on prisoners and their families have spawned a black market for contraband cell phones smuggled in by guards and other prison employees.
An attorney representing a prisoner who suffered a near-fatal attack by another prisoner at Pennsylvania’s Lackawanna County Prison (LCP) has claimed that the incident demonstrates a pattern of mistreatment by staff at the facility.
Prisoner Nicholas Pinto, 29, pleaded guilty to child pornography in federal court and was awaiting sentencing at LCP. He was derided by guards and prisoners due to the nature of his charges, and placed in protective custody.
Pinto kept a diary that revealed he endured months of physical, sexual and mental abuse. The diary began with his incarceration at LCP in 2008, and chronicled how guards made him stand naked in his confinement cell, No. 4, for hours on end until the lights went out. “Can’t sleep in freezing cell, naked, cold concrete, and no place to sit. I stand for 3 or 4 days,” Pinto wrote.
A guard once came by his cell and told him, “See how that shit works?” At other times, guards would speak to Pinto over the PA system, saying, “4-cell, kill yourself.”
A former LCP prisoner interviewed by the Associated Press said “he saw guards force Pinto to strip down and stand for prolonged ...
by David M. Reutter
Smith’s attorney, Cecily Elizabeth Baskir with the Georgetown University Law Center in Washington, D.C., argued that Smith, a practicing Rastafarian, was unlawfully subjected to forced haircuts by MSU staff in violation of his religious rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Smith filed his initial complaint pro se, alleging RLUIPA violations pursuant to 42 U.S.C. §§ 2000cc to 2000cc-5. The district court granted summary judgment to the defendants and Smith appealed.
RLUIPA provides, in pertinent part, that “no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of ...
The Fourth Circuit Court of Appeals vacated a district court’s decision granting summary judgment to officers and officials with the South Carolina Department of Corrections (SCDC) after they forcibly shaved a prisoner’s head in contravention of his religious beliefs. The prisoner, Kevin Smith, a/k/a Bar-None Royal Blackness, was being housed in SCDC’s Maximum Security Unit (MSU) where a grooming policy requires prisoners “to wear close-cropped haircuts for security reasons.” Prisoners who refuse to comply with the policy are given forced haircuts.
The indictment, issued on June 29, 2010, charged Edward L. Dugger and Joseph A. Deese with conspiracy to pay kickbacks; Dugger also was charged with extortion.
Dugger owned several businesses, but at issue was his creation of American Institutional Services (AIS) on June 23, 2004. “The sole reason his [company] was incorporated was to serve as a sub-contractor for Keefe Commissary in connection with its contract with FDOC involving prison canteens,” the indictment alleges.
The best way to get that business, Dugger seems to have concluded, was to buy his way in. He began when he took a trip to Nashville in August 2003 with then-FDOC Secretary James Crosby, Crosby’s sidekick Allen Clark, and other FDOC officials to attend an American Correctional Association (ACA) conference. While there, Dugger took the group to a country and western store and bought them $1,000 in clothes and boots.
Dugger also solicited Crosby to ...
A federal grand jury has issued a two-count indictment against two businessmen implicated in a kickback scheme that involved prison canteen profits and former top-ranking officials with the Florida Department of Corrections (FDOC). PLN previously reported events related to this story. [See: PLN, Dec. 2006, pp.1, 4].
According to an Associated Press article, female employees at the Circleville Juvenile Correctional Facility, where Teague served as superintendent, told investigators that he “made comments to them in classrooms, touched their buttocks, kissed them on the cheek, and often commented on their clothes and weight loss,” including one woman who claimed that he “grabbed her knee under the table during a staff meeting.”
Another woman alleged that Teague said he “would like to spend the afternoon under your desk,” while a different female employee stated he wanted to do “sexual things” while wearing a Batman costume.
Teague, who denied the charges, told investigators he had “tried to create a family atmosphere at the institution which often consisted of him hugging female staff and kissing some of them,” though such acts were not “sexual or arousing.”
The ODYS was assisted in its investigation by the Ohio State Highway Patrol, which interviewed witnesses and conducted polygraph tests on Teague and four female employees who made allegations ...
The Ohio Department of Youth Services (ODYS) said in a May 2010 report that it had found substantial evidence to validate numerous harassment charges against Thomas Teague, an 11-year ODYS employee, which justified his immediate firing.
Watson was transferred to Wallens Ridge State Prison on April 23, 2009 after setting fire to his cell at Sussex II State Prison the previous day. On May 1, 2009, prison officials moved him into Gleason’s 8-by-10-foot cell. Gleason reportedly begged guards and counselors for seven days to move Watson, but they never did.
Watson talked of having “drowned” two television sets because they “had voodoo in them,” Gleason claimed. Watson also drank his own urine and sang, screamed, masturbated and engaged in other offensive behavior. Gleason said his cellmate was driving him crazy, and that he was going to snap.
And snap he did. On May 8, 2009, guards found Watson’s bound, gagged, beaten and strangled corpse in Gleason’s cell. “Wallens Ridge forced my hand,” Gleason later said.
Watson’s death went unnoticed for 15 hours because guards had falsified their population counts, including two mandatory standing ...
“I murdered that man cold-bloodedly. I planned it, and I’m gonna do it again,” said Virginia state prisoner Robert Gleason, Jr., 40, after murdering his cellmate, Harvey Gray Watson, Jr. “Someone needs to stop it. The only way to stop me is to put me on death row.”
Parts of the story are familiar. In late August 2005, Hurricane Katrina hit the Gulf Coast. Floodwaters broke the levees in New Orleans and the city was devastated—first by floods, then by a shamefully underwhelming response on the part of the federal, state, and local governments. While tourists were picked up and shipped out, poor people of color and prisoners were left with no food, shelter, or support in the aftermath. Some sat in Orleans Parish Prison, still in lockdown, as the waters rose inside their cells. In the years to follow, the situation worsened for many and improved only for those who could afford to pay their own way through the so-called “recovery.”
Parts of the story are less familiar. In the aftermath of Hurricane Katrina, groups ranging from young public school students to Palestinian and Vietnamese communities organized for the right to play a part in rebuilding the city. New projects arose, providing services ranging from women’s healthcare to expunging criminal records, fighting for public housing, defending New Orleans’ historic black culture, and creating alternatives to the brutal and racist criminal legal system in New Orleans Parish. Although the long-term demands of ...
Review by Lewis Wallace
Rodney Chaney ended up at the SCHC in August of 1998 after he was sentenced to 30 days ...
On February 23, 2009, a federal jury returned a $240,001 verdict in favor of a man who was violently beaten by a guard at the Suffolk County House of Correction (SCHC).
The study, published in August 2010, “uncovered shocking evidence of racial discrimination in jury selection in every state. We discovered majority-black counties where capital defendants nonetheless were tried by all-white juries. We found evidence that some prosecutors employed by state and local governments actually have been trained to exclude people on the basis of race and instructed on how to conceal their racial bias.”
The Civil Rights Act of 1875 outlawed race-based discrimination in jury selection, but the Equal Justice Initiative found that “135 years later illegal exclusion of racial minorities persists.” Although the U.S. Supreme Court limited the discriminatory use of peremptory juror strikes in Batson v. Kentucky, 476 U.S. 79 (1986), the court’s refusal to apply its ruling retroactively resulted in the execution of death row prisoners convicted by all-white juries where jurors were excluded on the basis of race. Other condemned prisoners still ...
A study by the Equal Justice Initiative, a non-profit legal organization based in Montgomery, Alabama, has found widespread discrimination in jury selection in the states of Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee. The discriminatory practices appear to be most prevalent in serious criminal cases, including capital cases.
The City of New York will pay $9.9 million to a man who was wrongfully accused, arrested, convicted and imprisoned as the result of actions by disgraced former New York City police detective Louis J. Eppolito, who is now serving a life sentence plus 100 years for mob-related activities ...
On March 16, 2010, New York City agreed to settle a long-standing class-action lawsuit challenging the strip search policy used in the city’s jails. The settlement was for over $33 million, which included an estimated $3 million in attorney fees.
The suit originated as a class-action ...
by Matt Clarke
Before the Sixth Circuit was the appeal of Michigan prisoner James Scott, who claimed that four doctors were deliberately indifferent in connection with his diagnosis of and treatment for prostate cancer.
Scott was advised in March 2002 by Dr. Nitin Ambani that he had an elevated prostate specific antigen (PSA), indicating possible prostate cancer. A biopsy did not find cancer.
Dr. Ambani failed to follow policy of placing Scott in a “chronic care clinic” and putting him on a therapeutic diet, and Scott later came under the care of Dr. Ardeshir Faghihnia, who denied him an annual health screening in 2002 and refused additional cancer testing and lab work at his 2003 screening.
An October 2005 screening revealed an elevated PSA level. A second biopsy by Dr. Ambani revealed prostate cancer, which was treated by Dr. Molly Sullivan. Despite Scott’s requests on religious grounds to ensure that his seminal ...
The Sixth Circuit Court of Appeals has held that a prisoner stated sufficient facts to defeat dismissal of his claim alleging a prison doctor was deliberately indifferent to his serious medical needs. However, the appellate court affirmed judgment in favor of three other doctors named as defendants in the suit.
Michael Lou Garrett, a Texas state prisoner, filed a prison-related lawsuit in state district court. Because he filed the pro se suit in forma pauperis, Garrett’s case was subject to the provisions of TCPRC § 14.005(a)(2), which required that he file with the court “a copy of the written decision from the grievance system.”
Texas prisoners have no access to photocopiers. Therefore, Garrett filed a hand-typed, verbatim copy of the grievance decision. The trial court held that the word “copy” meant only a photocopy and dismissed the suit for failure to comply with § 14.005(a)(2). Garrett appealed.
The Court of Appeals affirmed the dismissal with one judge dissenting. Garrett filed a petition for review, which the Texas Supreme Court granted. The Supreme Court held that because Chapter 14 does not contain a definition of the term “copy,” it must “apply its ordinary or common meaning,” which “includes a hand-typed, verbatim reproduction.”
Accordingly, the Supreme Court reversed the judgment of ...
The Supreme Court of Texas has held that a prisoner who submits a hand-typed copy of the prison grievance decision he received adequately meets the requirements of Chapter 14, Texas Civil Practice and Remedies Code (TCPRC).
California: On January 11, 2011, a woman who escaped from a California state prison in 1979 was captured in Santa Barbara. Nancy Garces, 56, was serving time for credit card forgery when she absconded from the women’s prison in Chino. Police were tipped off that she would be arriving in Santa Barbara by train and were waiting for her at the station. “I can tell you she was very surprised,” stated police Lt. Paul McCaffrey. Garces had been living under the name of Lydia Mendez.
Canada: An escapee from a South Dakota prison who had been on the run for 16 years turned himself in to Canadian authorities on January 10, 2011. Clifford Laframboise ...
California: Over 226,000 pounds of hamburger meat was recalled from prisons in California and Oregon due to concerns that it was spoiled. The meat, shipped in 20-pound boxes from One Great Burger in Elizabeth, New Jersey, had been flagged by the U.S. Department of Agriculture but was still shipped to the prisons after being “repackaged and recoded.” None of the meat was fed to prisoners, according to One Great Burger spokesman Frank Tobin. “We just don’t know yet what happened,” he said.