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Prisoner Education Guide

Prison Legal News: March, 2011

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Volume 22, Number 3

In this issue:

  1. Legacy of Corruption: GEO Buys Off the Florida Political Establishment (p 1)
  2. Summary Judgment for Illinois Jail Nurse Reversed in Wrongful Death Suit (p 12)
  3. Band-aid Applied to Florida’s Homeless Sex Offender Colony Falls Off (p 13)
  4. Nevada Agrees to Settle Class Action Lawsuit Over Medical Treatment at Ely State Prison (p 14)
  5. From the Editor (p 14)
  6. Safety Concerns of a Prisoner Rights Lawyer (p 16)
  7. Second Circuit: New York’s Persistent Felony Offender Statute Held Constitutional in En Banc Ruling (p 17)
  8. Federal BOP’s Exclusions from Early Release Incentive for Substance Abuse Program Completion Struck Down (p 18)
  9. U.S. Supreme Court Upholds $625,000 Judgment for Female Prisoner Molested by Ohio Prison Guard (p 18)
  10. Sixth Circuit Holds Pre-1992 Michigan Lifers Not Entitled to Ex Post Facto Relief (p 20)
  11. California Prison System Lays Off Teachers, Vocational Instructors (p 20)
  12. Virginia Federal Court Invalidates DOC Ban on Sexually Explicit Books (p 22)
  13. State Inspections Compel Changes at Abusive Michigan Juvenile Facility (p 22)
  14. Report Faults Private Prison Company for Deadly Arizona Prison Break (p 24)
  15. Have a Cell Phone in Your Rectum? Body Cavity Searches OK’d in First Circuit, but Surgical Searches Are Not (p 26)
  16. Probation May Not Be Conditioned On Overly Broad Court Access Restrictions (p 27)
  17. Social Security Audit Criticizes Prisoners’ Access to Personal Data; Federal Legislation Passed (p 28)
  18. Georgia Eases Sex Offender Restrictions in Face of Federal Court Challenge (p 28)
  19. Kentucky Jail Guards’ Convictions Affirmed in Sexual Abuse of Young Prisoner (p 30)
  20. Prison Health Services Doctors Caught in Scandals (p 30)
  21. Prisoner Labor Used to Clean Up BP Oil Spill (p 32)
  22. Former Orange County Jail Detainee Paid $750,000 to Settle Guard Tasering Suit (p 33)
  23. Massachusetts: Wrongful Conviction Suit Settled for $3.25 Million (p 33)
  24. Class Action Certified in California Federal Civil Rights Suit Against TransCor (p 34)
  25. Towns Defaulting on Prison and Jail Bonds (p 34)
  26. $100,000 Settlement in Nebraska Jail Prisoner Suicide Suit (p 35)
  27. Florida: Cost Savings and Benefits of Prison Privatization Non-Existent (p 36)
  28. PLN and HRDC Win Consent Judgment Against Louisiana Sheriff in Censorship Case (p 36)
  29. Tennessee: Private Prison Guards Considered “Public Servants” (p 37)
  30. Texas Audits Private Prison and Substance Abuse Treatment Contract Monitoring (p 38)
  31. Short-Lived Class Action Lawsuit Filed Against Global Tel*Link in California, Then Secretly Settled (p 38)
  32. Kentucky Guards Sentenced to Federal Prison in Detainee Abuse Prosecution (p 39)
  33. U.S. Supreme Court: No Federal Habeas Relief for California Lifer Parole Denials (p 40)
  34. Ohio Governor Spares Death Row Prisoner, Cites Problems with Evidence (p 40)
  35. $373,000 Settlement in New York City Juvenile Facility “Building Tenders” Suit (p 41)
  36. Disgraced Doctor Good Enough for Texas Prisoners (p 42)
  37. New Mexico Corrections Secretary Lets Private Prison Firms Skate on Understaffing, Forgoes $18.6 Million in Fines (p 42)
  38. California Prison Officials Pay $10,000 to Settle Prisoner’s Retaliation, Conditions Suit (p 43)
  39. BOP’s Furlough Notification Policy Not to be Addressed for Seven Years (p 44)
  40. Continuing Violation Doctrine Applies to Deliberate Indifference in New York (p 44)
  41. Fifth Circuit Holds Texas Parole Revocation Witness Denial Violates Due Process (p 45)
  42. Terminally Ill Maryland Prisoner May Refuse Treatment; State’s Highest Court Denies Forced Treatment (p 46)
  43. Dismissal for Failure to Effect Service Reversed in Florida Failure to Protect Suit (p 46)
  44. Iowa Supreme Court Holds Inmate Assault Statute Only Requires Bodily Fluids from Another for Conviction (p 47)
  45. Second Circuit Holds Costs May be Denied to Prevailing Party on Appeal (p 47)
  46. Second Circuit Reverses Denial of RLUIPA Dietary Claim (p 48)
  47. Ninth Circuit Rules Prisoners Not Required to Include Legal Theories in Grievances (p 48)
  48. Wisconsin Civil Commitment Patients Denied Minimum Wage (p 49)
  49. North Carolina Prisoner Prevails in Claim Related to Paruresis, AKA “Shy Bladder” (p 49)
  50. News in Brief: (p 50)

Legacy of Corruption: GEO Buys Off the Florida Political Establishment

U.S. Senator Marco Rubio’s unsettling history of extremely close ties to private prison operator GEO Group and the possible federal investigation into Florida’s private prison giveaway of more than $120 million

Newly minted U.S. Senator Marco Rubio (R-FL) was sworn in on January 5, 2011 with unfinished business back home.

Rubio, as former speaker of the Florida House of Representatives (R-Miami, 2006-2008) – as well as other state GOP lawmakers and party contributors – are currently the likely subjects of multiple wide-ranging state and federal investigations conducted by the FBI and the Florida Department of Law Enforcement (FDLE) into improper use of credit cards issued by the Republican Party of Florida, as well as tax evasion and improper budgetary appropriations.

One such set of appropriations and legislative actions reportedly being investigated by federal authorities are those which led to the development of the state’s largest private prison, the Blackwater River Correctional Facility (Blackwater CF), which opened its gates for business in November 2010. The prison was designed and is operated by Florida-based GEO Group, Inc., the nation’s second-largest private prison firm.
To date, investigations into members of the Florida Republican Party, and into party donors, have ...

Summary Judgment for Illinois Jail Nurse Reversed in Wrongful Death Suit

The U.S. Court of Appeals for the Seventh Circuit reversed a grant of summary judgment in favor of a nurse at Illinois’ Peoria County Jail (PCJ) who was accused of providing deliberately indifferent medical care to a prisoner.

India Taylor was arrested and taken to the PCJ on October 15, 2003. Taylor, who suffered from congestive heart failure, did not feel well during the booking process. She complained of chest pain and told guards the next morning that she was vomiting and suffering from heroin withdrawal.

Around 9 A.M., Taylor saw Pam Hibbert, a contract nurse at PCJ. Taylor’s blood pressure was up and she continued to complain of nausea. Hibbert, however, sent Taylor back to her cell. Later, during a video bond hearing, Taylor vomited violently. Guards present during the hearing collected Taylor’s vomit and notified Nurse Hibbert.

Rather than see Taylor, Hibbert told guards to have her fill out a sick-call request and she would be seen in the morning. Hibbert was getting off in a few minutes and did not want to take time to deal with Taylor. Besides, Hibbert thought Taylor was faking her illness in order to obtain drugs.

Guards helped ...

Band-aid Applied to Florida’s Homeless Sex Offender Colony Falls Off

by David M. Reutter

When Florida’s Miami-Dade County adopted an ordinance that extended the 1,000-foot state law residency restrictions for sex offenders to 2,500 feet, the estimated 100 sex offenders who return to Miami-Dade each year after being released from prison were left with few options as to where they could live.

One of the few places they could reside was under the Julia Tuttle Causeway bridge. PLN has previously reported on this situation and the squalor that released sex offenders had to live in under the bridge to avoid violating conditions of their supervised release. [See: PLN, June 2008, p.1; July 2009, p.36; Dec. 2009, p.14].

In July 2009, as many as 140 people were living under the Julia Tuttle bridge. They had erected rickety shanties and installed a generator to provide electricity – for living necessities and to power their GPS monitors – but did not have running water.

Once the sex offender colony grew and began expanding from under the bridge into the public view, an uproar resulted with concerns about public safety and the impact of the county’s sex offender residency ordinance. Several lawsuits were filed, to no avail.

In October ...

Nevada Agrees to Settle Class Action Lawsuit Over Medical Treatment at Ely State Prison

In July 2010, Nevada officials agreed to settle a federal class action lawsuit filed by the ACLU pursuant to 42 U.S.C. § 1983 that alleged constitutionally inadequate medical care at Ely State Prison.

The ACLU initiated the lawsuit after commissioning a medical report to investigate conditions at Ely. The investigation, conducted by Dr. William Noel, found “a pattern of gross medical abuse” that threatened the health and safety of the 1,000 prisoners housed at the facility. According to Dr. Noel, “the medical care provided at Ely State Prison amounts to the grossest possible medical malpractice, and the most shocking and callous disregard for human life and human suffering, that I have ever encountered in the medical profession in my thirty-five years of practice.” [See: PLN, June 2008, p.18].

Under the terms of the proposed settlement agreement, the State of Nevada and all named defendants denied having engaged in any culpable conduct but agreed to the appointment of a neutral, expert medical monitor, Dr. Ronald Shansky, for a period of not less than two years. The monitor will evaluate the state’s compliance with the terms of the settlement in six areas: medications, chronic care, sick call, intra-system ...

From the Editor

On an ongoing basis PLN conducts sample mailings to the mailing lists of other organizations and publications as part of our efforts to reach new potential subscribers who may not be aware of us and to encourage them to subscribe. Occasionally this causes some confusion when existing subscribers receive sample copies of PLN in addition to their subscription copy. If you have received multiple copies of PLN simply look at the address label; the copy that is part of your PLN subscription will have an expiration date for your subscription on the line above your address. Sample copies will not. If you are already a PLN subscriber and receive additional copies please pass them along to friends who may be interested in subscribing. One way to keep costs down is to increase our readership, as the more subscribers we have the lower our per issue costs. You can help in this process by encouraging others to subscribe to PLN.

This month’s cover story is about the ongoing corruption that permeates the private prison industry in general and the private prison industry in Florida in particular; sadly, Florida prisoners will not be able to read this article because for the ...

Safety Concerns of a Prisoner Rights Lawyer

by Jane Kahn

As part of the small talk that happens during holiday gatherings and at other events during the year, people ask me what I do. My work involves representing California prisoners with severe mental illness. I am frequently asked whether I feel safe going inside of the prisons. Sometimes, I am asked how I dress to meet with my clients. Images of Attica seem to hover over the conversations. Since I am at a party, I give the quick answer. I explain that I feel safe because I am visiting my clients and the prisons are well-guarded.
If someone insists, I might tell a story. But I keep it simple. It is not simple.

Many of the attorneys and paralegals in our office have traveled regularly to see our clients housed in the 33 California prisons scattered around the state. The attorneys also conduct monitoring tours of the prisons. The risk of harm to advocates entering California prisons to see their clients is primarily the risk of continued exposure to the horrific conditions of confinement that our clients must endure every day. The severe overcrowding in the California prisons, which was declared a state of emergency by Gov ...

Second Circuit: New York’s Persistent Felony Offender Statute Held Constitutional in En Banc Ruling

by Matt Clarke

The Second Circuit Court of Appeals found that New York’s Persistent Felony Offender Statute (PFOS), N.Y. Penal Law § 70.10 , which allows enhancement of sentences for prior felony convictions, violated the Sixth Amendment to the U.S. Constitution. However, that finding was later reversed by an en banc ruling.

James Besser, William Phillips, Carlos Portalatin, Vance Morris and William Washington (petitioners), New York state prisoners, filed separate federal habeas corpus petitions pursuant to 28 U.S.C. § 2254 that challenged the constitutionality of the PFOS. They alleged that the PFOS violated the Sixth Amendment as clarified and controlled by Blakely v. Washington, 542 U.S. 296 (2004) [PLN, Aug. 2004, p.14]. The district courts granted relief for Portalatin and Washington but denied relief to the other three petitioners.
All five habeas cases were appealed, then consolidated.

The Second Circuit held that application of the PFOS would increase the sentences of the petitioners. The PFOS requires that the state trial judge find a defendant has two prior felony convictions, and that “the history and character of the defendant and the nature and circumstances of his criminal conduct” make it in the public interest to enhance ...

Federal BOP’s Exclusions from Early Release Incentive for Substance Abuse Program Completion Struck Down

by Stephen G. Yagman

The U.S. Ninth Circuit Court of Appeals has invalidated the federal Bureau of Prisons’ (BOP) policy statement, 28 C.F.R. § 550.58(a)(1)(iv)(2000), see 65 Fed.Reg. 80745-01 (Dec. 22, 2000), that denies prisoners who have been convicted of the categorical crimes of homicide, forcible rape, robbery, aggravated assault and sexual abuse of a minor, one year off their sentences for successful completion of the BOP’s substance abuse treatment program.

Jerry Crickon was serving a 151-month sentence at the federal prison camp in Sheridan, Oregon for conspiracy to possess with intent to distribute methamphetamine. In March 2007, he received notice that he qualified for participation in the BOP’s Residential Drug Abuse Program, but was also informed that he was not eligible for the incentive offered in 18 U.S.C. § 3621(e), which ordinarily provides one year’s early release for successful completion of the nine-month program. The only reason cited for Crickon’s ineligibility for the early release incentive was his 1970 conviction for voluntary manslaughter.

The U.S. District Court denied Crickon’s § 2241 habeas corpus petition for an order that he be allowed to receive the ...

U.S. Supreme Court Upholds $625,000 Judgment for Female Prisoner Molested by Ohio Prison Guard

by John E. Dannenberg

On January 24, 2011, the U.S. Supreme Court (USSC), ruling on a relatively minor procedural issue regarding the timing of a defense motion for summary judgment, upheld a $625,000 jury verdict awarded to a female prisoner who was sexually abused by an Ohio state prison guard.

Michelle Ortiz was assaulted by prison guard Douglas Schultz, who walked up behind her in the washroom of her living quarters and grabbed one of her breasts. When Ortiz reported this to her case manager, Paula Jordan, Jordan suggested that while Ortiz had a right to file a complaint, she counseled against it because it was Schultz’s last day working at the facility. Jordan advised Ortiz to simply stay in the company of other prisoners to avoid further sexual assaults. However, after Ortiz fell asleep in her dorm, she awoke to find Schultz fondling her left breast with one hand while fingering her vagina with the other.

When Ortiz further complained, prison investigator Rebecca Bright put her in solitary confinement, allegedly to prevent her from talking about the investigation with other prisoners. Ortiz claimed she was segregated in retaliation for her complaint.

Ortiz sued Jordan and Bright ...

Sixth Circuit Holds Pre-1992 Michigan Lifers Not Entitled to Ex Post Facto Relief

In what may prove to be a major blow to parole-eligible life-sentenced prisoners in Michigan, the Sixth Circuit has rejected an as-applied ex post facto challenge to the retroactive application of changes in Michigan’s parole laws.

The prisoners, a class of “parolable lifers” who committed certain non-drug offenses before October 1, 1992, filed suit in federal district court pursuant to 42 U.S.C. § 1983, alleging that changes to Michigan’s parole laws in 1992 and 1999, as implemented and applied retroactively, violated the due process and ex post facto clauses of the U.S. Constitution.

Relying on Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994) (en banc) [PLN, Nov. 1994, p.13], the district court dismissed the due process claim on the ground that Michigan prisoners lack a constitutionally protected federal liberty interest in parole.

The Sixth Circuit affirmed the dismissal on appeal.

The bulk of the Sixth Circuit’s opinion, however, focused on the district court’s ex post facto analysis. As a preliminary matter, the district court had held that Shabazz v. Garry, 123 F.3d 909 (6th Cir. 1997) [PLN, June 1998, p.19], did not preclude the prisoners’ ex post facto challenge ...

California Prison System Lays Off Teachers, Vocational Instructors

Due to a $60 billion budget deficit in fiscal year 2009-2010, California prison officials decided to slash funding for rehabilitative programs for prisoners. And while state employees affected by the resulting layoffs cried foul (and fraud), prison officials claimed the cutbacks would promote efficiency and ultimately reduce crime.

The California Dept. of Corrections and Rehabilitation (CDCR) announced in late 2009 that it planned to lay off 850 teachers and vocational instructors, including prison staff who run substance abuse and anger management programs. As a result, the state will save $250 million in direct costs.

In the long run, however, the indirect costs to the state – in terms of increased prison violence and recidivism – may exceed the short term savings. Prior to the cuts, about 57,000, or one-third of California’s 170,000 prisoners, were enrolled in educational or vocational programs. About 12,000 (roughly 7 percent of the state prison population) were taking substance abuse classes. Those numbers will be reduced by approximately thirty percent as a result of the budget cuts and layoffs.

The wisdom behind the cuts was questioned by those who teach the programs. John Kern, a landscape horticulture instructor at Soledad State Prison since 1984 ...

Virginia Federal Court Invalidates DOC Ban on Sexually Explicit Books

by David M. Reutter

A U.S. District Court has held that a Virginia Department of Corrections (VDOC) policy which prohibits “works of literature which include an explicit description of a sexual act or intercourse” is unconstitutional, both facially and as applied.

The court’s ruling was entered on cross-motions for summary judgment filed in a lawsuit brought by VDOC prisoner William R. Couch. Couch claimed that VDOC operating policy 803.2, which was used to exclude Ulysses and Lady Chatterley’s Lover from the prison library and prevented him from ordering those books from a private vender, violated his rights under the First and Fourteenth Amendments.

A publication can be banned under VDOC’s “specific criteria for publication disapproval” if it contains “...explicit or graphic depictions or descriptions of sexual acts, including but not limited to: a. Actual sexual intercourse, normal or perverted, anal or oral; b. Secretion or excretion of bodily fluids or substances in the context of sexual activity; c. Lewd exhibitions of uncovered genitals in the context of sexual activity; d. Bondage, sadistic, masochistic or other violent acts in the context of sexual activity; e. Any sexual acts in violation of state or federal law.”

The ...

State Inspections Compel Changes at Abusive Michigan Juvenile Facility

by David M. Reutter

Inspection reports by Michigan’s Department of Human Services (DHS) concerning conditions at the Muskegon County Juvenile Detention Center (MCJDC) found an abusive environment caused by understaffing. On the verge of losing the state license to operate MCJDC, county officials agreed to make reforms.

Located in the northern area of Michigan, MCJDC houses up to 22 middle-school and high-school-aged juveniles. They end up at the facility by order of a family court overseeing criminal charges against them. MCJDC’s superintendent reports to the county administrator rather than to officials associated with the courts, DHS or the sheriff’s office.

After several inspections revealed serious problems at MCJDC, Steve Ragsdale, a child welfare licensing consultant with DHS, began interviewing former MCJDC residents.
Ragsdale issued five reports between December 15, 2009 and June 24, 2010, finding systemic abuse at MCJDC.

Facility staff told Ragsdale that they had no choice but to use “physical management” and long-term seclusion for the safety of both employees and residents. When Ragsdale made an unannounced visit to MCJDC on June 7, 2010, he got a first-hand glimpse of the chaos that reigned at the juvenile facility.

He observed one resident tip over a ...

Report Faults Private Prison Company for Deadly Arizona Prison Break

by Matt Clarke

On August 19, 2010, the Arizona Department of Corrections (ADC) issued a report concerning the July 30 escape of three prisoners from a privately-operated prison in Kingman, Arizona. The report was highly critical of Management and Training Corporation (MTC), the for-profit firm that runs the Kingman facility.

On the same day the ADC report was released, the last of the three escapees was captured along with an accomplice. Unfortunately, the escapees left behind a deadly trail of crime that included hijacking 18-wheelers, kidnapping, two murders, aggravated assaults and a shootout with police.

The escape from the MTC-operated facility also temporarily suspended Arizona’s efforts to privatize 5,000 more prison beds in the state. [See: PLN, Sept. 2010, p.42].

John Charles McCluskey, 45, was a year into a 15-year sentence for attempted second-degree murder when he convinced his cousin and fiancée, Casslyn Mae Welch, 44, to aid in the escape. Welch approached the prison unnoticed and tossed a pair of bolt cutters over the perimeter fence. McClusky and two other prisoners – Tracy Allen Province, who had served seven years of a life sentence for murder and robbery, and Daniel Renwick, who had served eight years for ...

Have a Cell Phone in Your Rectum? Body Cavity Searches OK’d in First Circuit, but Surgical Searches Are Not

It is okay to look for contraband in a prisoner’s rectum so long as the search is done by medical staff in a non-abusive manner, according to the U.S. Court of Appeals for the First Circuit. Prison officials, however, cannot force prisoners to undergo surgery in order to search for prohibited items.

While incarcerated at Puerto Rico’s Bayamon 501 prison, Angel Luis Sanchez was subjected to a series of increasingly intrusive searches as part of a quest to find a cell phone that guards thought he had hidden inside his body.

The incident began after a handheld metal detector went off while Sanchez was being searched. A subsequent strip-search revealed nothing, as did another scan with the metal detector, but that was not good enough for the guards.

They asked a doctor to take X-rays of Sanchez’s abdominal cavity. While the results from the X-rays were pending, Sanchez was placed under constant surveillance and guards instructed him to defecate on the floor. Sanchez did so, but no cell phone was found.

Shortly thereafter the results from the X-rays came in. According to the doctor who examined the X-rays, Sanchez had a foreign object in his rectum ...

Probation May Not Be Conditioned On Overly Broad Court Access Restrictions

A California Court of Appeal has concluded that a probation condition prohibiting a defendant from being within 500 feet of any courthouse is unconstitutionally overbroad.

Alejandro Perez pleaded guilty to second degree robbery after forcibly taking a $29 pair of pants from a person he believed had previously vandalized his brother’s property. The trial court placed him on 36 months of formal felony probation. Consistent with the probation officer’s report and the request of the prosecutor, the court imposed 36 probation terms and conditions, including one prohibiting Perez from attending any court hearing or being within 500 feet of any courthouse unless he is either a defendant or under subpoena there.

On appeal, the Court noted that while trial courts have broad discretion to impose conditions which foster rehabilitation and protect the public, nonetheless a condition prohibiting non-criminal conduct must be reasonably related either to the crime of conviction or to future criminality. Here, the 500-foot restriction on access to courts was neither reasonably related to Perez’s crime nor to the possibility of future criminality.
Additionally, it potentially infringed upon Perez’s constitutional right of access to the courts, as well as his First Amendment right of ...

Social Security Audit Criticizes Prisoners’ Access to Personal Data; Federal Legislation Passed

by Matt Clarke

On March 12, 2010, the Office of the Inspector General (OIG) of the Social Security Administration (SSA) released an audit report on prisoners’ access to Social Security numbers (SSNs). The report criticized eight states for providing prisoners with access to SSNs as part of their institutional jobs.

The purpose of the report was to follow-up on an August 2006 audit in which the OIG determined that prisons in 13 states allowed prisoners to access SSNs through a variety of slave labor work programs. That earlier audit noted the potential threat to SSN integrity, and recommended that the SSA and prisons work together to limit prisoners’ access to SSNs. [See: PLN, April 2007, p.24].

The 2010 report found that the SSA had taken some steps to educate prison officials about the risks associated with allowing prisoners access to SSNs. However, prisons in eight states continued to provide prisoners with access to SSNs. Generally, prisoners encountered SSNs and other personally identifiable information when they performed data entry, encoding, digital imaging or records conversion. The types of documents they worked with included criminal background checks, police reports, health records, student transcripts, tax forms, employee wage statements and Department of ...

Georgia Eases Sex Offender Restrictions in Face of Federal Court Challenge

Laws that restrict where sex offenders can live have been popular in legislatures throughout the U.S. With much fanfare and hoopla, Georgia passed one of the nation’s toughest sex offender residency statutes on July 1, 2006.

That law prohibited sex offenders from living within 1,000 feet of schools, parks, churches, school bus stops and other places where children gather. In effect, the law served to drive sex offenders into desolate areas or out of the state.

At one point, as reported in PLN, a group of homeless sex offenders set up a tent city on state land behind an office park in suburban Atlanta until they were evicted. [See: PLN, May 2010, p.20].

Before Georgia’s law even went into effect, however, civil liberties groups began filing lawsuits; as a result, state legislators had to make changes before the entire law was scraped by the federal courts. “The bottom line was that the hammer was about to fall on us, and I was deeply concerned that the entire statute was in jeopardy,” said state Senator Seth Harp, who helped push through a revision to the law.

One of those hammers was a federal lawsuit challenging Georgia ...

Kentucky Jail Guards’ Convictions Affirmed in Sexual Abuse of Young Prisoner

by David M. Reutter

The Sixth Circuit Court of Appeals has affirmed the convictions and prison sentences of two guards who were found guilty of violating a prisoner’s civil rights. The guards’ actions resulted in the sexual assault of an 18-year-old prisoner.

When J.S. was arrested for speeding and eluding police on February 14, 2003, he was taken to Kentucky’s Grant County Detention Center. At the time, J.S. was 18 years old, six feet tall and weighed 125 pounds. He had blonde highlights in his hair, wore a bright shirt and had heart shapes on his underwear. Sgt. Shawn Sydnor described J.S. as a “scared little kid” who was “sissy looking.”

His clothing and looks caused guards to tease him about being cute, and one said he would make “a good girlfriend for the inmates.” Sgt. Sydnor told guards Wesley Lanham and Shawn Freeman that J.S. “needed to be scared.”

To do so, Sydnor said J.S. should be placed in a general population cell. Lanaham stated he “knew a guy, down in 26 Hall,” which was known as the “hallway from hell.” It housed prisoners convicted of misdemeanors and felonies.

Detention center staff ...

Prison Health Services Doctors Caught in Scandals

In a two-week period in July 2010, two doctors employed by Prison Health Services (PHS) were involved in scandals that led one to resign while the other was arrested.

PHS regional medical director Dr. Trevor P. Parks was accused of not being certified to provide healthcare for the 12,000 prisoners covered by a $123 million contract between PHS and the City of New York to supply medical treatment at Rikers Island and the Manhattan Detention Center.

In light of questions concerning his board certification for internal medicine, Parks resigned on July 14, 2010. PLN had previously reported that Dr. Parks operated a PHS subsidiary called PHS Medical Services P.C. that provided healthcare services at Rikers Island – an arrangement that state officials called a sham. [See: PLN, Nov. 2006, p.6]. Dr. Parks said he had resigned to concentrate on his appeal of a recommendation by the American Board of Internal Medicine to suspend his certification.

“They’re just concerned with something that I got caught up in, and I’d really rather not go into it,” he stated. PHS’s contract with the city requires the company’s medical director to be board certified. Until they were notified ...

Prisoner Labor Used to Clean Up BP Oil Spill

by Matt Clarke

On April 20, 2010, an explosion on Deepwater Horizon, an offshore drilling platform in the Gulf of Mexico, killed 11 workers. The accident resulted in an oil spill that leaked oil into the gulf for three months, damaging both the ecology and economy of coastal states – particularly Louisiana. Deepwater Horizon was owned by a corporation called Transocean and leased to oil company BP (formerly British Petroleum).

Early in BP’s effort to clean up oil-soaked beaches in Louisiana, cleanup workers wearing scarlet pants and T-shirts emblazoned with the words “Inmate Labor” were easy to spot. Local residents, many of whom had been rendered destitute by the oil spill, which had destroyed the fishing industry in the region, expressed outrage. Why was BP hiring prisoners when the Deepwater Horizon accident had forced so many coastal residents into unemployment?

The first and most obvious answer to that question is to save money. Louisiana has 39,000 prisoners, but only enough space in its state prisons to incarcerate 19,000. The other 20,000 are housed in private prisons, parish jails and work-release centers. This decentralized incarceration scheme makes if difficult to oversee, or even understand, the statewide practice of ...

Former Orange County Jail Detainee Paid $750,000 to Settle Guard Tasering Suit

In March 2010, Orange County, California paid $750,000 to settle a civil rights suit filed by Matthew Fleuret, a former jail prisoner who alleged he was subjected to excessive force following his arrest in March 2006 on suspicion of obstructing a deputy in the performance of his duties, after ...

Massachusetts: Wrongful Conviction Suit Settled for $3.25 Million

The City of Boston has agreed to pay $3.25 million to settle a lawsuit filed by a man who was wrongfully convicted and imprisoned for 18 years for a series of rapes he did not commit.

Ulysses Charles was convicted in 1984 of raping three women at an apartment ...

Class Action Certified in California Federal Civil Rights Suit Against TransCor

On February 16, 2010, a California U.S. District Court certified a class action lawsuit against Nashville, Tennessee-based private prison transport company TransCor America for transporting prisoners more than 24 continuous hours without giving them an opportunity to rest overnight in a bed.

The class action suit was brought pursuant to 42 U.S.C. § 1983 and alleged that TransCor subjected prisoners to cruel and unusual punishment during long journeys exceeding 24 hours by keeping them shackled and in a cage while depriving them of access to regular food, water or toilet facilities, and for failing to allow them to sleep overnight in a bunk. The lawsuit also raises claims under California’s Tom Bane Civil Rights Act, Cal. Civil Code § 52.1. The plaintiffs filed a motion for class certification, which TransCor opposed.

Accepting as true any substantive allegations made in the complaint, the district court held that the requested class of “all pretrial detainees who were transported by TransCor America, LLC, its agents, or employees, and forced to remain in the transport van for more than 24 hours” was too broad. The court limited the claims to pretrial detainees and prisoners who were transported for more than 24 ...

Towns Defaulting on Prison and Jail Bonds

by Matt Clarke

Municipal bonds have long been considered a safe investment. However, recent defaults on bonds used to pay for the construction of privately-run prisons and jails have investors worried about losing their capital, and towns worried about their ability to raise money through future bond issues.

As far back as 2005, bonds used to finance the West Alabama Youth Services detention facility went into default. Those bonds, which were originally issued at par and yielded a 7.25% return, are currently trading at 9 cents on the dollar.

However, such defaults were rare until recent years. Driving the current wave of bond defaults are unscrupulous businesses that sold small towns on the idea of building privately-operated jails while overstating the need for jail bed space and the potential revenue stream. Some of these private detention facilities were able to buck the recent trend of reductions in state prisoner populations by switching to immigration detention.
However, a speedier deportation process and more stringent standards for immigration facilities have resulted in complications.

For example, the Baker County Development Corporation was created to finance a jail and immigration detention center in north Florida. In 2008, $105 million worth of bonds were ...

$100,000 Settlement in Nebraska Jail Prisoner Suicide Suit

Sheridan County, Nebraska has agreed to pay $100,000 to the estate of a prisoner who committed suicide while at the Sheridan County Jail.

Jay Spotted Elk hung himself with a belt in his cell after being arrested on a misdemeanor charge of failure to appear. Spotted Elk was intoxicated ...

Florida: Cost Savings and Benefits of Prison Privatization Non-Existent

by David M. Reutter

“Florida’s experience with privatized prisons raises serious questions about whether the taxpayers are getting their money’s worth,” concludes an April 2010 policy brief report released by the Florida Center for Fiscal and Economic Policy. The report questions methods used to determine whether private prisons cost less to operate or are more effective at reducing recidivism.

“Between 1989 and 2008, the rate of crime in Florida significantly decreased,” the report states. Violent crime dropped by 41%, property crimes by 46% and the total crime index declined by 46%. Yet the number of Florida’s prisoners grew 108% in comparison to the average 78% rate of prison population growth nationwide over the same time period.
State policymakers, swayed by the potential to save money and reduce recidivism through prison privatization, allowed private companies to manage correctional facilities in Florida. The authorizing statute requires private prisons to operate at a 7% savings over state-run facilities. See: Florida Statutes § 957.07(1).

By 2008, six of Florida’s prisons – Bay, Gadsden, Graceville, Lake City, Moore Haven and South Bay – were operated either by the GEO Group or Corrections Corporation of America (CCA), holding 7,725 state prisoners.

On ...

PLN and HRDC Win Consent Judgment Against Louisiana Sheriff in Censorship Case

On May 18, 2010, Prison Legal News (PLN) and its parent organization, the Human Rights Defense Center (HRDC), won another battle against censorship by prison and jail officials.

In 2009, PLN and HRDC sued Jack A. Stephens, Sheriff of St. Bernard Parish in Louisiana, after staff at the St. Bernard ...

Tennessee: Private Prison Guards Considered “Public Servants”

Employees of Corrections Corporation of America (CCA), the nation’s largest for-profit prison company, are public servants within the meaning of Tennessee’s criminal code.

In July 2008, CCA guards David Gilliam and Joe Edward McCown III, who worked at the Hamilton County Workhouse in Chattanooga, were charged with official misconduct and official oppression under T.C.A. §§ 39-16-402 and 39-16-403. However, the trial court granted the guards’ motions to dismiss the charges, agreeing that CCA employees were not “public servants” under Tennessee law.

The state appealed and the Court of Criminal Appeals noted that the issue was one of first impression. “The State, citing Alex Friedmann v. Corrections Corporation of America, No. M2008-01998-COA-R3-CV (Tenn.Ct.App., Nashville, Sept. 16, 2009), perm. app. denied (Tenn. 2010), contends that the defendants are public servants because they are performing a service traditionally entrusted to the government.”

The Court of Criminal Appeals found that the state’s Private Prison Contracting Act “specifically extends the provisions of Code sections 39-16-402 and -403 to employees of private prison contractors,” and that the statute was “unambiguous.”

The Court also agreed “with the court of appeals [in Friedmann] that by operating a correctional facility, a function traditionally ...

Texas Audits Private Prison and Substance Abuse Treatment Contract Monitoring

by Matt Clarke

In March 2010, the Texas State Auditor’s Office released a report on a performance audit of the Private Facilities Contract Monitoring and Oversight Division (PFCMOD).

The PFCMOD monitors private prisons and private substance abuse treatment programs under contract with the Texas Department of Criminal Justice (TDCJ). Texas has more prisoners in private prisons than any other state. The audited private contractors were responsible for 26,798 prisoners in a variety of settings – including 13 private prisons, 5 private state jails, 4 private Intermediate Sanctions Facilities, 9 private Substance Abuse Felony Punishment Facilities, two In-Prison Therapeutic Communities, a Multiple Program Treatment Facility, 19 private Substance Abuse Treatment Facilities, one In-Prison Driving While Intoxicated Treatment Program, two County Jail Work Release Programs and 8 private halfway houses.

The contracts for those services exceeded $255 million in FY 2009, up from around $235 million in FY 2008. The audit covered the PFCMOD’s activities for FY 2008 and 2009.

The Texas Board of Criminal Justice approved the creation of the PFCMOD in 2007. In FY 2009, the PFCMOD had a budget of around $53 million and a staff of 40 contract monitors to oversee 68 contracts with 33 different ...

Short-Lived Class Action Lawsuit Filed Against Global Tel*Link in California, Then Secretly Settled

by Mike Brodheim

Sick and tired of being gouged by high prison phone rates, Nadia Alvarez and Rachel Fishenfeld, two California residents, filed a consumer class action suit against Global Tel*Link (GTL) in August 2010. GTL, a major telecommunications company that contracts with prisons and jails throughout the country to provide phone services, was accused of engaging in unfair business practices in violation of both federal law and California state law.

Alvarez and Fishenfeld sought certification of a class consisting of all United States residents who, within two years of the filing of the suit, paid for GTL’s services so they could receive phone calls from someone in a jail or prison. The plaintiffs also sought to certify a subclass of California residents only, consisting of those who paid for GTL’s services during the four years prior to the filing of the lawsuit.

The plaintiffs were represented by J. Paul Gignac, a partner at Arias Ozzello & Gignac LLP of Santa Barbara, as well as Steven S. Derelian of Pasadena and Eugene Feldman of Hermosa Beach – counsel with experience in handling class action litigation on behalf of consumers.

In their complaint, Alvarez and Fishenfeld stated that GTL is ...

Kentucky Guards Sentenced to Federal Prison in Detainee Abuse Prosecution

A Kentucky federal court has sentenced five guards from the Fayette County Detention Center (FCDC) who were prosecuted in connection with systematic abuse of prisoners at the facility.

FCDC Sgt. John McQueen, 33, and Cpl. Clarence McCoy, 31, were convicted by a federal jury on May 13, 2010. It was established at trial that they and other FCDC guards had conspired to deprive detainees of their constitutional rights by physically abusing them and by creating false and misleading incident reports to conceal the abuse. The conspiracy charge identified multiple incidents of abuse that occurred between January 1 and October 1, 2006. Other charges described specific incidents of abuse and acts of obstruction of justice. [See: PLN, Dec. 2008, p.50].

Before trial, FCDC Lt. Christine Lafoe pleaded guilty to conspiring to obstruct justice; Sgt. Anthony Estep pleaded guilty to a civil rights charge and an obstruction charge for failing to intervene in the abuse; and Cpl. Scott Tyree pleaded guilty to a civil rights conspiracy charge.

“The power granted to correctional officers so that they can perform their critical public safety duties does not give them free reign to abuse the civil and constitutional rights of inmates under their supervision ...

U.S. Supreme Court: No Federal Habeas Relief for California Lifer Parole Denials

by John E. Dannenberg

In a unanimous per curiam opinion, the U.S. Supreme Court (USSC) summarily reversed rulings by the Ninth Circuit Court of Appeals in two California parole cases in which the Ninth Circuit had overruled state court denials of habeas corpus relief from challenged parole denials by life-sentenced prisoners (“lifers”), and had invoked authority under 28 U.S.C. § 2254 to grant federal habeas corpus relief.

Damon Cooke had been sentenced to 7 years to life for a 1991 attempted first-degree murder. He was denied parole at his 2002 suitability hearing. Cooke petitioned the state Superior Court, which denied relief when it found “some evidence” to support the Board’s denial. His petitions to the California Court of Appeal and California Supreme Court were rejected.

The U.S. District Court denied Cooke’s subsequent 28 U.S.C. § 2254 habeas petition but the Ninth Circuit reversed, holding that California’s parole statute created a liberty interest protected by the Due Process Clause, and that “California’s ‘some evidence’ requirement” was a “component” of that federally-protected liberty interest. The Ninth Circuit then concluded that the state courts had made an “unreasonable determination of the facts in light of ...

Ohio Governor Spares Death Row Prisoner, Cites Problems with Evidence

Kevin Keith, 46, on Ohio’s death row for murdering two women and a 4-year-old child, and scheduled for execution on September 15, 2010, was spared by Ohio Governor Ted Strickland. In commuting the death penalty portion of Keith’s sentence on September 2, Governor Strickland stated, “This case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court.”

Commutation was the last resort for Keith, who had exhausted his state court appeals and whose petition was rejected by the U.S. Supreme Court. The Ohio Parole Board had unanimously recommended the denial of Keith’s clemency request. Before granting the commutation, Gov. Strickland listened to the appeals of a diverse group of individuals from both political parties, attorneys general, judges and prosecutors, after Keith’s attorneys uncovered evidence that they argued cast doubt on his guilt.

Defense lawyers had raised various issues, including that the assault that resulted in the murders Keith was convicted of committing was actually carried out by another man, who said he had been hired for $15,000 to carry out the crime. They also maintained that the police photo lineup was prejudicial because ...

$373,000 Settlement in New York City Juvenile Facility “Building Tenders” Suit

Echoing the violence of the Texas prison system during the 1970s where prisoners guarded other prisoners under an abusive practice known as the “building tenders” system, the City of New York has agreed to pay $373,000 to settle a lawsuit involving similar practices at the city’s Robert N ...

Disgraced Doctor Good Enough for Texas Prisoners

by Matt Clarke

In 2006, Anita Goodman lost her 31-year-old son Aaron to an overdose of prescription medication as a wave of similar deaths rolled through Harris, Jefferson and Orange Counties in Southeast Texas.

Aaron picked up a prescription drug habit in college and had been fighting his addiction to the narcotic hydrocodone, the anti-depressant Xanax and a muscle relaxant called Soma – the combination of which produces an effect similar to heroin. He had delivered signed statements to pain clinics he frequented stating he was a recovering drug addict and did not want to be prescribed any further medication. However, he relapsed and a Texas pain clinic gave him the drugs that led to his overdose.

Goodman, a nurse, filed formal complaints with the Texas Medical Board and criminal justice authorities. In 2007, Dr. Walid Hamad Hamoudi’s pain clinic, which had given Aaron the drugs that resulted in his death, was raided.

In late 2008, the Texas Medical Board held a hearing over multiple allegations of “non-therapeutic prescriptions,” inadequate records and misdiagnoses involving ten of Hamoudi’s patients. Following secretive mediation, the Board announced its decision on June 4, 2010: Hamoudi could retain his medical license by paying a ...

New Mexico Corrections Secretary Lets Private Prison Firms Skate on Understaffing, Forgoes $18.6 Million in Fines

by Matt Clarke

Former New Mexico Corrections Secretary Joe R. Williams did not pursue contractual penalties against Corrections Corporation of America (CCA) or GEO Group despite chronic understaffing by the two private prison companies, which operate four facilities in New Mexico.

GEO and CCA manage prisons for the New Mexico Corrections Department (NMCD) in Hobbs, Grants, Clayton and Santa Rosa. The original decision to allow private firms to operate state prisons was controversial, and recent revelations that the privately-run facilities are chronically understaffed have reignited the debate over privatization.

The NMCD’s contracts call for penalties when staffing vacancies reach 10% for 30 consecutive days. In 2007, the Legislative Finance Committee (LFC), the budget arm of the state legislature, reported 37% understaffing at the Lea County Correctional Facility in Hobbs, angering lawmakers. The staff vacancy rate for July 2010 was 22% at Hobbs and 17%, 14% and 13% at the other privately-operated facilities.

However, Williams declined to seek fines for such contractual noncompliance, instead making excuses for GEO and CCA.

Williams said the private prisons were located in rural areas or small towns where recruiting and retaining staff is difficult. He also claimed the companies were offsetting the vacancies by ...

California Prison Officials Pay $10,000 to Settle Prisoner’s Retaliation, Conditions Suit

In April 2010, California state prisoner Charles Chatman accepted an offer of judgment from the defendant prison officials he had sued in federal court for allegedly retaliating against him in violation of the First Amendment because he filed grievances about prison conditions, and for allegedly subjecting him to conditions of ...

BOP’s Furlough Notification Policy Not to be Addressed for Seven Years

A September 2010 report by the Office of the Inspector General of the U.S. Department of Justice cast light on deficiencies with the Bureau of Prisons’ (BOP) furlough policy, and in doing so inadvertently highlighted the power of the federal prison employees’ union to delay changes in BOP policies.

In 2003, the BOP drafted a proposed policy that would have required BOP officials to notify crime victims and witnesses when a prisoner was temporarily released on furlough or transferred to another institution. Seven years later, however, the BOP has yet to implement that policy. Citing the requirements of a collective bargaining agreement with the National Council of Prison Locals, an arm of the American Federation of Government Employees (AFGE), a policy change that could have an effect on conditions of employment for AFGE members must be negotiated.

According to a September 2, 2010 New York Times article, “Agency and union officials meet for three days each month to discuss such issues, one at a time and usually in the order in which they were proposed ... the agency now says that it may not be able to fix the [furlough notification policy] problem until 2017 – a time frame called ‘excessive ...

Continuing Violation Doctrine Applies to Deliberate Indifference in New York

The Second Circuit Court of Appeals has held that the continuing violation doctrine applies to a New York prisoner’s deliberate indifference claim under the Eighth Amendment.

Jose J. Shomo was confined by the New York City Department of Corrections (NYCDOC) from September 20, 1999 until January 4, 2001. The day Shomo entered custody, he “was diagnosed with right arm paralysis and limited use of his left arm.” His treating physicians “ordered that he receive assistance with activities of daily living (ADLs), be transferred to specialized infirmary housing and receive various treatments.”

However, NYCDOC staff repeatedly ignored those treatment recommendations.
Shomo filed suit in federal court alleging deliberate indifference to his serious medical needs. He also alleged violations of the Americans with Disabilities and Rehabilitation Acts, municipal liability, assault and destruction of property.

The defendants moved to dismiss for failure to file the suit within the three-year statute of limitations under New York law. “While Shomo did not explicitly allege any acts of deliberate indifference within the three-year statute of limitations ..., the district court held that the continuing violation doctrine applied to Shomo’s Eighth Amendment claims.”

The district court dismissed the complaint with leave to replead claims against doctors ...

Fifth Circuit Holds Texas Parole Revocation Witness Denial Violates Due Process

The Fifth Circuit Court of Appeals has 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 (1972) when it revoked a parolee for a crime for which he had been acquitted while refusing to let him call several witnesses because they were in jail.

Michael Williams, a Texas state prisoner, was released on parole after serving 21 years of a 99-year sentence. Several months after his release, a woman claiming to be his daughter accused him of assaulting her. Williams said he was fishing with two friends, Samuel Oakley and Allen Nugent, 30 miles from the place of the alleged assault at the time it supposedly occurred. He also said the woman had demanded financial help from him 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 a jail located in the ...

Terminally Ill Maryland Prisoner May Refuse Treatment; State’s Highest Court Denies Forced Treatment

The Maryland Court of Appeals held that prison officials cannot force a terminally ill prisoner to undergo kidney dialysis treatment.

In 1995, Troy Reid was sentenced to 40 years in the custody of the Maryland Department of Corrections (DOC). In July 2007, Reid was diagnosed with end-stage renal disease, meaning his “kidneys are no longer able to function or the kidneys completely fail to function, remove waste, or concentrate urine and regulate electrolytes.” He also suffers from high blood pressure and human immunodeficiency virus.

Reid required kidney dialysis treatment – “an artificial process to replace the kidney function of removing waste and unwanted water from the blood” – three times per week. He initially consented to dialysis treatment but later chose to terminate all treatment, “even though he understood the medical consequences of ceasing dialysis (serious bodily injury and even death).”

DOC Commissioner J. Michael Stouffer fought to compel life saving treatment for Reid, seeking an injunction from the Baltimore City Circuit Court. The court denied the injunction and the Commissioner appealed to the Court of Special Appeals. The court granted a temporary injunction requiring continuing dialysis pending appeal. The Commissioner then petitioned Maryland’s highest court, the Court of Appeals, for ...

Dismissal for Failure to Effect Service Reversed in Florida Failure to Protect Suit

The Eleventh Circuit Court of Appeals has held that as long as a court-appointed agent to serve summons for a prisoner-litigant acting pro se can locate the prison guard-defendant with reasonable effort, prisoner-litigants who provide enough information to identify the prison guard-defendant have established good cause for the failure to effect service within 120 days.

That ruling came in a lawsuit filed by Florida prisoner Larry D. Richardson, who filed a civil rights complaint alleging violation of his Eighth Amendment rights at Charlotte Correctional Institution by assigning him to a cell with another prisoner who was known to be dangerous and who later attacked him, by refusing him medical treatment for 15 hours after the attack, and by denying his numerous grievances and requests.

The district court dismissed the claims against Secretary James McDonough, Mr. Adams, Inspector Laughlin, and Warden Johnson for failure to connect them to the violation. The Eleventh Circuit affirmed that ruling.

At issue was the failure to timely serve summons on guard McNealy. The district court ordered the U.S. Marshals to serve summons on McNealy by having them mailed to guard Shirley Matthew. She informed the Court that she was unable to serve McNealy because ...

Iowa Supreme Court Holds Inmate Assault Statute Only Requires Bodily Fluids from Another for Conviction

The Supreme Court of Iowa held that for a prisoner to be convicted of “inmate assault” in violation of Iowa Code § 708.3B (2005), there need only be proof that the prisoner caused a corrections employee to come into contact with another person’s blood, seminal fluid, urine or feces. The court rejected the argument that such bodily fluids had to come from the prisoner who was charged with assaulting the employee.

Before the court was the appeal of Jody Nolan McCullah, who was challenging his four-count conviction for assault under § 708.3B. McCullah was at the Polk County Jail on April 20, 2007 when he snuck up behind a jail guard named Harper, striking her on the side of the head. He then began pushing buttons on the control panel in the second floor control room.

An altercation ensued between McCullah and jail guards Harper, Rodish, Bracelin, Purscell and Vandepol. All of the guards except Vandepol were exposed to blood from cuts received by McCallah and Rodish. At trial, the district court denied McCullah’s motion for acquittal which argued there was no proof that the blood the guards came into contact with came from him.

The state Supreme ...

Second Circuit Holds Costs May be Denied to Prevailing Party on Appeal

The prevailing party on appeal may be denied costs when, in a court’s discretion, taxing costs is deemed inequitable, the U.S. Court of Appeals for the Second Circuit held on November 2, 2009.

New York resident Richard Moore sued two Delaware County Deputy Sheriffs following a search of his home that turned up drugs and drug paraphernalia. Criminal charges against Moore were dropped after a state court suppressed the evidence found during the search. Ultimately, the Second Circuit determined that while the deputies had violated Moore’s constitutional rights the law was not “clearly established” at the time of the incident, thus entitling the deputies to qualified immunity.

Following another successful appeal by the defendants, the deputies moved for costs pursuant to Rule 39 of the Federal Rules of Appellate Procedure.

Recognizing that “an award of costs to a prevailing party is the norm and not the exception,” the Second Circuit held it still had the “discretion to deny costs even if otherwise taxable.”

In exercising that discretion the appellate court considered a non-exhaustive list of factors, including “misconduct by a prevailing party, the public importance of the case, the difficulty of the issues presented,” and the losing ...

Second Circuit Reverses Denial of RLUIPA Dietary Claim

The Second Circuit Court of Appeals reversed a district court’s dismissal of the religious diet claims of two New York prisoners who practiced a religious faith called “Tulukeesh.”

In 2003, New York prisoner Tyheem Keesh sought permission to practice his religion, Tulukeesh. Prison officials said he could practice in his cell. He then informed the chaplain “that the dictates of Tulukeesh were set forth in the book ‘Holy Blackness,’ which imposed various dietary obligations .... Tulukeesh also requires ... members to engage in sparring, and prohibits them from appearing nude in front of non-members.”

Pursuant to DOC Directive 4202, prison officials prohibited Keesh from practicing in a group setting. He protested, claiming that the ban on group services violated the rules of “Holy Blackness” and deprived him of the right to practice his religion. Keesh was allowed to eat a “religious alternative” diet, which included “non-red-meat and non-pork-based meals.”

Fellow prisoner Jesus Jova also “requested to change his religious designation to Tulukeesh, and demanded that the Defendants accommodate his practice ... in the same manner as Keesh ....”

Between January and July 2004, Keesh and Jova wrote letters and filed grievances concerning the denial of their religious practices by prison officials. They also ...

Ninth Circuit Rules Prisoners Not Required to Include Legal Theories in Grievances

The Ninth Circuit Court of Appeals has held that a prisoner need not use legal terminology nor present legal theories when exhausting administrative remedies before filing a civil rights suit.

Jermaine Donte Griffin, an Arizona state prisoner housed at the Madison Street Jail in Maricopa County, Arizona, filed a civil rights lawsuit pursuant to 42 U.S.C. § 1983 against Sheriff Joe Arpaio and various jail employees alleging deliberate indifference to his serious medical needs.

Griffin claimed he was taking medication that “impaired his vision and depth perception, making it difficult for him to access upper bunks.” As a result, he fell from the upper bunk. He “obtained an order for a lower bunk assignment from a prison nurse,” but jail employees ignored the order and again assigned him to an upper bunk.

Griffin grieved the upper bunk assignment. Jail officials denied the grievance, noting the nurse’s order had resolved the problem. Griffin appealed the denial but failed to mention that the nurse’s order was being ignored. He lost the appeal and then filed a civil rights lawsuit.

The district court dismissed the suit, stating that Griffin had failed to exhaust administrative remedies because he had not alleged ...

Wisconsin Civil Commitment Patients Denied Minimum Wage

The Wisconsin Court of Appeals held on March 31, 2010 that civilly committed patients are not entitled to minimum wage for the work they perform.

Hung Nam Tran and Eric L. Fankhauser are civilly committed patients confined at the Wisconsin Resource Center (WRC) as “sexually violent persons” pursuant to Wisc. Stat., ch. 980.

In 2005, it was WRC policy to compensate patients for the work they performed, “consistent with current Federal Minimum Wage” (FLSA) laws. Following a January 31, 2007 memorandum, however, WRC Warden Thomas Speech reduced the WRC patient wage rates to below minimum wage, effective March 4, 2007.

On October 26, 2007, Tran and Fankhauser challenged the new pay policy by filing a petition for a writ of certiorari in state court. On April 21, 2009, the trial court issued an order quashing the writ and dismissing their petition.

The Wisconsin Court of Appeals affirmed. Noting that the Seventh Circuit had resolved the same issue in Sanders v. Hayden, 544 F.3d 812 (7th Cir. 2008), the court agreed “with the Seventh Circuit: persons civilly committed because they were sexually violent are not covered by the FLSA.” The Seventh Circuit had noted in Hayden that “The reason the ...

North Carolina Prisoner Prevails in Claim Related to Paruresis, AKA “Shy Bladder”

The North Carolina Department of Correction (NDOC) has agreed to settle a prisoner’s lawsuit that accused NDOC officials and guards of exhibiting deliberate indifference to his medical diagnosis of “paruresis.” The settlement includes a monetary payment, attorney fees, and a guarantee of accommodating the prisoner’s condition during the ...

News in Brief:

Arizona: Corrections Corp. of America officials announced on December 24, 2010 that they had identified 43 prisoners who were involved in a riot a day earlier at CCA’s Red Rock Correctional Facility near Eloy. The prisoners, all from California, were placed in administrative segregation pending an investigation. Ten prisoners were injured during the riot and seven were taken to outside hospitals for medical treatment. CCA employees used pepper spray to regain control during the disturbance; no staff members were injured.

California: Former San Diego jail guard Matthew Gutierrez, 34, who worked at the Metropolitan Correctional Center, was sentenced on January 18, 2011 to 15 months in federal prison. Gutierrez had arranged to purchase around 11 ounces of cocaine from a confidential informant. He had pleaded guilty to the charge last November.

California: On January 24, 2011, about 1,000 prisoners at the California Men’s Colony protested prison policies by refusing to eat meals served at the facility. Reportedly, 90% of the prisoners in a housing unit refused to go to the chow hall to eat, though they were still buying food from the prison commissary. The policies that led to the peaceful no-meals protest included the implementation of “rolling lockdowns ...


 

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