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Prison Legal News: March, 2011

Issue PDF
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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...