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Prison Legal News: July, 2011

Issue PDF
Volume 22, Number 7

In this issue:

  1. U.S. Supreme Court Holds California’s Prison Overcrowding Violates Eighth Amendment, Must be Remediated by Population Reduction (p 1)
  2. California: Controversy Surrounds Governor’s Grant of Clemency to Son of Political Friend (p 10)
  3. $5.25 Million Paid to Former Ohio Prisoner for Wrongful Murder Conviction (p 11)
  4. Deaths of Three North Carolina Prisoners Raise Suspicions (p 12)
  5. From the Editor (p 12)
  6. Washington DOC Agrees to Change Sexual Abuse Policies (p 14)
  7. San Francisco Blanket Jail Strip Search Policy Upheld in Ninth Circuit En Banc Ruling (p 16)
  8. Why I Care About Prisoner Rights (p 17)
  9. Low Rates in Michigan DOC Phone Contract Demonstrate Actual Cost of Prison Phone Services (p 18)
  10. Paroled Killers Rarely Re-Offend (p 18)
  11. Anti-Private Prison Group Rips Revolving Door for Federal Employees After CCA Hires Former BOP Director (p 20)
  12. Ninth Circuit: Prison Visitation Privileges May be Temporarily Restricted for Legitimate Penological Reasons (p 20)
  13. New York Parolee Detained Without Hearing; City Not Entitled to Summary Judgment (p 22)
  14. State Audit Finds Maryland Prison Employees Misused Funds in Prisoner Accounts (p 22)
  15. The Incredible Honey Bun Behind Bars (p 24)
  16. Ninth Circuit Applies Houston Mailbox Rule to § 1983 Actions (p 24)
  17. Former Virginia Beach Sheriff Received Insider Information on Jail Contract (p 26)
  18. Fifth Circuit: Habeas Petition Challenging Recent Parole Denial Not Considered Successive (p 26)
  19. California Prisoner’s Life Sentence Upheld for Tossing Food Tray at Guard (p 27)
  20. Vermont Parole Law Change Violates Ex Post Facto Clause (p 28)
  21. Tenth Circuit Vacates Class Certification in Jail Conditions Suit; Case Settles Following Remand (p 28)
  22. Ninth Circuit: Despite Award of Only Nominal Damages, Attorney Fees Appropriate in § 1983 Wrongful Death Suit (p 30)
  23. Massachusetts Supreme Judicial Court Clarifies Erroneous Conviction Claims (p 30)
  24. Fourth Circuit Upholds Federal Civil Commitment Statute Against Constitutional Challenge (p 31)
  25. Third Circuit Holds Blanket Policy of Strip Searching Arrestees, Absent Reasonable Suspicion, is Constitutional; Cert Granted (p 32)
  26. Ninth Circuit Holds PLRA Fee Cap for Court-Appointed Counsel Also Applies to Paralegal Fees (p 32)
  27. Six New Jersey Jail Guards Arrested for Assaulting Prisoners (p 33)
  28. Washington: Eye Gouging Assault Severely Injures Airway Heights Prisoner (p 34)
  29. Inmate Accident Compensation Act Does Not Preclude Bivens Remedy (p 34)
  30. Deficient Medical Care Leads to Preventable Death of Seattle, Washington Jail Prisoner (p 36)
  31. In-Prison Filmmaker Prepares Next Release (p 36)
  32. U.S. Department of Justice Report Puts Price Tag on Preventing Prison Rape (p 38)
  33. Georgia: Child Support Contempt Findings Create Debtor’s Prisons (p 40)
  34. Pennsylvania DOC Agrees to Comply with Clean Air Act at Four Prisons (p 40)
  35. Former Deputy Sheriff Gets LWOP for Murder of California Prison Guard (p 41)
  36. $16 Million Federal Jury Award in Texas Jail Beating Suit (p 42)
  37. Florida Pre-Release Officer’s Federal Convictions Affirmed (p 42)
  38. Baltimore Jail’s Warden, Seven Guards Suspended Pending Excessive Force Investigation (p 43)
  39. Seventh Circuit Finds Appeal is Timely Despite E-Filing Error (p 44)
  40. Failure to Protect May Raise Claim Under Federal Tort Claims Act (p 44)
  41. New York: Double Jeopardy Prohibits Imposition of Post-release Supervision Once Defendant is Released from Custody (p 45)
  42. Fifth Circuit Clarifies Procedure for PLRA Failure-to-Exhaust Dismissals (p 46)
  43. A Cage by Any Other Name is Still a Cage: Mentally Ill California Prisoners Caged (p 46)
  44. Ninth Circuit Denies Arizona Prisoner Access to Dedicated Discharge Account (p 47)
  45. Queer (In)justice: The Criminalization of LGBT People in the United States, by Joey L. Mogul, Andrea J. Ritchie and Kay Whitlock (Beacon Press, Feb. 2011), 216 pages, $27.95 (p 48)
  46. “America’s Sheriff” Begins Serving Federal Prison Sentence (p 49)
  47. News In Brief (p 50)

U.S. Supreme Court Holds California’s Prison Overcrowding Violates Eighth Amendment, Must be Remediated by Population Reduction

by John E. Dannenberg

In a landmark ruling upholding provisions of the Prison Litigation Reform Act (PLRA) that permit specially convened three-judge federal court panels to order reductions in state prison populations due to overcrowding (18 U.S.C. § 3626(a)(3)), a bitterly divided U.S. Supreme Court, in ...

California: Controversy Surrounds Governor’s Grant of Clemency to Son of Political Friend

by Mike Brodheim

In one of his last official acts before leaving office in January 2011, California Governor Arnold Schwarzenegger exercised his right under the state constitution to grant clemency to Esteban Nuñez, the son of the governor’s friend, former State Assembly Speaker Fabian Nuñez. Schwarzenegger reduced Esteban’s ...

$5.25 Million Paid to Former Ohio Prisoner for Wrongful Murder Conviction

The City of Barberton, Ohio has paid $5.25 million to settle a lawsuit filed by a man wrongfully convicted of murder. Clarence Elkins spent almost eight years in prison before being exonerated by DNA evidence in 2005.

Elkins had been charged with the 1998 murder of his mother-in-law, Judith ...

Deaths of Three North Carolina Prisoners Raise Suspicions

by Matt Clarke and David M. Reutter

The deaths of two prisoners at the Maury Correctional Institution (MCI), a 1,000-bed close-security prison for men located in Greene County, North Carolina, have raised suspicions due to questionable circumstances surrounding those incidents. The eventual death of another prisoner who suffered injuries ...

From the Editor

Over the past 20 years PLN has reported the various conditions class-action lawsuits in California concerning the lethal health care administered to prisoners. After decades of non-compliance with dozens of court orders the prison system’s health care was put into a federal receivership, yet that still did not resolve ...

Washington DOC Agrees to Change Sexual Abuse Policies

by David M. Reutter

The Washington Department of Corrections (WDOC) has agreed to change its policies that relate to preventing, reporting and investigating sexual abuse of prisoners by staff members. The changes resulted from a settlement in a class-action lawsuit filed by five female prisoners who claimed they were sexually ...

San Francisco Blanket Jail Strip Search Policy Upheld in Ninth Circuit En Banc Ruling

In a class action § 1983 suit brought by pre-arraignment jail detainees, a divided Ninth Circuit panel held that San Francisco’s blanket policy of strip searching all arrestees classified for the jail’s general population, in the absence of individualized reasonable suspicion, violated the arrestees’ clearly established constitutional rights and ...

Why I Care About Prisoner Rights

by David L. Hudson, Jr.

A friend recently asked: “Why do you care and write so much about prisoner rights? After all, they’re convicted criminals.” The question came after the U.S. Supreme Court’s ruling in Brown v. Plata that dealt with overcrowded prisons and terrible medical and ...

Low Rates in Michigan DOC Phone Contract Demonstrate Actual Cost of Prison Phone Services

PLN’s April 2011 cover story detailed the results of our comprehensive multi-year research project on prison phone services, including a state-by-state comparison of prison phone rates, commission (kickback) percentages, and the amounts of commission payments from prison phone contracts nationwide.

Our research found that based on data from 2007-2008 ...

Paroled Killers Rarely Re-Offend

by Mike Brodheim

Judging by the statistics, Reginald Powell, 54, may be the proverbial exception to the rule – the rule, in this case, being that convicted murderers who are granted parole only rarely re-offend.

In 1984, Powell was convicted of the shooting death of New York cabbie Joseph Accordino. After ...

Anti-Private Prison Group Rips Revolving Door for Federal Employees After CCA Hires Former BOP Director

On June 1, 2011, Corrections Corporation of America (CCA), the nation’s largest for-profit private prison company, announced its most recent acquisition: Former federal Bureau of Prisons director Harley G. Lappin, who was hired by CCA as an executive vice president and the company’s Chief Corrections Officer.

Lappin retired ...

Ninth Circuit: Prison Visitation Privileges May be Temporarily Restricted for Legitimate Penological Reasons

Holding that the temporary suspension of a prisoner’s visiting privileges with his minor children due to an alleged rule infraction did not violate any clearly established constitutional right of which a reasonable prison official would have been aware, the Ninth Circuit reversed a district court’s denial of qualified ...

New York Parolee Detained Without Hearing; City Not Entitled to Summary Judgment

The Second Circuit Court of Appeals reversed a district court’s dismissal of a parolee’s wrongful imprisonment claims, holding that the defendant, New York City, was not entitled to summary judgment.

On December 13, 2001, Keith McDay was arrested in New York on criminal charges and a parole violation ...

State Audit Finds Maryland Prison Employees Misused Funds in Prisoner Accounts

by Matt Clarke

State lawmakers have registered outrage after a state audit, released in October 2010, revealed that employees of the Maryland Department of Public Safety and Corrections (DPSC) at five finance offices in the Baltimore area used a prisoners’ trust account for paycheck advances. Irregularities were also discovered in ...

The Incredible Honey Bun Behind Bars

by David M. Reutter

Things that are seemingly inconsequential to people outside of prison can quickly become something of great importance when made available to prisoners. The honey bun is one such item, which has taken on its own lore and become a beloved sticky-sweet staple among prisoners.

Why are ...

Ninth Circuit Applies Houston Mailbox Rule to § 1983 Actions

Ninth Circuit Applies Houston Mailbox Rule to § 1983 Actions

The Ninth Circuit Court of Appeals has joined nine other Circuits in holding that the prison mailbox rule set forth in Houston v. Lack, 487 U.S. 266 (1988) applies to pro se civil rights actions brought under 42 U.S ...

Former Virginia Beach Sheriff Received Insider Information on Jail Contract

by Matt Clarke

Within a few days after his retirement as Sheriff of Virginia Beach, Virginia in late 2009, Paul Lanteigne went to work for Conmed Healthcare Management, Inc. and began exchanging emails with and receiving documents from his former coworkers at the Sheriff’s Department. The subject of the ...

Fifth Circuit: Habeas Petition Challenging Recent Parole Denial Not Considered Successive

by Matt Clarke

On April 1, 2009, the Fifth Circuit Court of Appeals issued an order holding that a federal habeas corpus petition challenging procedures used to deny parole at a parole hearing which occurred after a previous habeas petition had been filed was not a successive petition.

Richard Delaney ...

California Prisoner’s Life Sentence Upheld for Tossing Food Tray at Guard

by Mike Brodheim

On January 3, 2011, the California Court of Appeal, Fifth District, affirmed a “three strikes” sentence of 25 years to life for a prisoner who, while confined in a security housing unit at the California State Prison at Corcoran, threw a food tray at a guard through ...

Vermont Parole Law Change Violates Ex Post Facto Clause

On November 2, 2010, a Vermont state court held that changes to Vermont’s parole laws requiring certain prisoners to serve 70% of their maximum sentences violate the Ex Post Facto Clause of the U.S. Constitution when applied to prisoners whose crimes occurred prior to the law’s enactment ...

Tenth Circuit Vacates Class Certification in Jail Conditions Suit; Case Settles Following Remand

On February 4, 2009, the Tenth Circuit Court of Appeals granted a Colorado sheriff’s interlocutory appeal challenging a class certification order and remanded the case for further proceedings, where it eventually settled in April 2011.

Four jail prisoners sued Garfield County officials alleging, among other things, that the use ...

Ninth Circuit: Despite Award of Only Nominal Damages, Attorney Fees Appropriate in § 1983 Wrongful Death Suit

Ninth Circuit: Despite Award of Only Nominal Damages, Attorney Fees Appropriate in § 1983 Wrongful Death Suit

Despite a jury’s award of only nominal damages, the Ninth Circuit affirmed the award of attorney’s fees to a plaintiff who filed suit under 42 U.S.C. § 1983 (and various provisions ...

Massachusetts Supreme Judicial Court Clarifies Erroneous Conviction Claims

by Matt Clarke

On November 23, 2010, the Massachusetts Supreme Judicial Court issued a pair of opinions that clarify the requirements for suing the state for compensation following an erroneous conviction. Specifically, the Court clarified the requirement that the conviction must be reversed “on grounds which tend to establish innocence ...

Fourth Circuit Upholds Federal Civil Commitment Statute Against Constitutional Challenge

The procedures for civil commitment of “sexually dangerous” federal offenders do not violate due process, the U.S. Court of Appeals for the Fourth Circuit held on December 6, 2010.

In 2006, the United States initiated civil commitment proceedings against Graydon Earl Comstock as he was nearing the end of ...

Third Circuit Holds Blanket Policy of Strip Searching Arrestees, Absent Reasonable Suspicion, is Constitutional; Cert Granted

In a class-action suit brought under 42 U.S.C. § 1983, a federal district court in New Jersey held that a blanket policy of strip searching arrestees charged with non-indictable offenses, absent reasonable suspicion that they were concealing contraband, drugs or weapons, violated the arrestees’ clearly established constitutional right to ...

Ninth Circuit Holds PLRA Fee Cap for Court-Appointed Counsel Also Applies to Paralegal Fees

In a January 13, 2011 ruling, the Ninth Circuit Court of Appeals determined that the cap on attorney’s fees established by the Prison Litigation Reform Act (PLRA) also applies to separately billed paralegal fees, notwithstanding the anomaly that this results in awarding payments for paralegals at the same rate ...

Six New Jersey Jail Guards Arrested for Assaulting Prisoners

On December 21, 2010, prosecutors charged six guards at New Jersey’s Essex County Correctional Facility with assaulting prisoners. The charges involve unprovoked attacks on three different prisoners in separate incidents. Four of the guards were also charged with falsifying records.

All of the assaults took place in 2010, with ...

Washington: Eye Gouging Assault Severely Injures Airway Heights Prisoner

A prisoner who killed his cellmate six years ago has assaulted and severely injured another prisoner at the Airway Heights Corrections Center near Spokane, Washington, according to police. The victim, Chad Bolstad, was attacked by his cellmate, Michael L. West, 34, who previously had been convicted of first-degree murder for ...

Inmate Accident Compensation Act Does Not Preclude Bivens Remedy

The Inmate Accident Compensation Act (IACA), 18 U.S.C. § 4126, does not preclude a federal prisoner from bringing a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) for work-related injuries that amount to a constitutional violation, the U.S ...

Deficient Medical Care Leads to Preventable Death of Seattle, Washington Jail Prisoner

The State of Washington’s Medical Quality Assurance Commission (MQAC) has charged a former King County jail doctor with providing substandard care.

According to a statement of charges filed on December 29, 2010, Dr. Anthony Rains engaged in “unprofessional conduct” while treating prisoner Lynn Dale Iszley at the King County ...

In-Prison Filmmaker Prepares Next Release

by David M. Reutter

Compact video cameras smuggled into prison have allowed New Jersey prisoner Omar Broadway to become an amateur documentarian of life behind bars. His first video, taken inside a New Jersey state facility in 2004, has been turned into a full-length feature, and he plans to use ...

U.S. Department of Justice Report Puts Price Tag on Preventing Prison Rape

by Matt Clarke

On June 18, 2010, the U.S. Department of Justice (DOJ) released a report on the estimated fiscal impact of the Prison Rape Elimination Act (PREA) standards that had been proposed by the National Prison Rape Elimination Commission (NPREC) the previous year.

PREA, which was signed into ...

Georgia: Child Support Contempt Findings Create Debtor’s Prisons

by David M. Reutter

The Great Recession has put millions of Americans out of work, which has caused more people than usual to become delinquent on their child support obligations and other debts. Many courts, especially those in Georgia and South Carolina, have reacted to child support delinquencies by finding ...

Pennsylvania DOC Agrees to Comply with Clean Air Act at Four Prisons

by David M. Reutter

A settlement agreement to remedy violations of the federal Clean Air Act at four Pennsylvania state prisons was announced on January 4, 2011. The settlement between the Pennsylvania Department of Corrections (PDOC), the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice ...

Former Deputy Sheriff Gets LWOP for Murder of California Prison Guard

Former Sacramento County Sheriff’s Deputy Chu Vue, 45, was sentenced on November 30, 2010 to life in prison without the possibility of parole for his role in the October 2008 murder of 39-year-old California state prison guard Steve Lo.

The evidence at trial revealed that Lo had been involved ...

$16 Million Federal Jury Award in Texas Jail Beating Suit

by Matt Clarke

On January 12, 2011, a federal jury in Beaumont, Texas found in favor of a former Jefferson County prisoner who was beaten by jail employees during the intake process. The jury awarded over $16 million in damages.

Joseph Christopher Roberts was arrested in April 2007 for making ...

Florida Pre-Release Officer’s Federal Convictions Affirmed

In a January 13, 2011 ruling, the Eleventh Circuit Court of Appeals upheld the criminal convictions of Florida pre-trial release officer Shynita Townsend for taking bribes to allow a releasee greater freedom.

The appellate court’s decision affirmed Townsend’s convictions for knowingly and corruptly accepting a thing of value ...

Baltimore Jail’s Warden, Seven Guards Suspended Pending Excessive Force Investigation

Pending an investigation into an alleged use of excessive force involving a female detainee, the warden and seven guards at the Baltimore Central Booking and Intake Center (BCBIC) have been suspended.

The detainee, a 26-year-old woman who faced minor charges, was taken to a local hospital with non-life threatening injuries ...

Seventh Circuit Finds Appeal is Timely Despite E-Filing Error

On May 3, 2010, the Seventh Circuit Court of Appeals held that a Wisconsin prisoner’s appeal was timely even though it was filed past the deadline due to an electronic filing error.

Scot Vince, a longtime informant for Rock County, Wisconsin law enforcement agencies, was assaulted by another prisoner ...

Failure to Protect May Raise Claim Under Federal Tort Claims Act

by Matt Clarke

The Fifth Circuit Court of Appeals held that it was inappropriate to grant summary judgment against a prisoner who was assaulted by gang members after he had warned prison officials of the danger of being attacked. Following remand, however, the district court entered judgment in favor of ...

New York: Double Jeopardy Prohibits Imposition of Post-release Supervision Once Defendant is Released from Custody

In a 5-2 decision on February 23, 2010, New York’s Court of Appeals, the state’s highest court, ruled that the double jeopardy clause of the U.S. Constitution prohibits the resentencing of a defendant to correct an illegal sentence once the defendant has been released from custody following ...

Fifth Circuit Clarifies Procedure for PLRA Failure-to-Exhaust Dismissals

The Fifth Circuit Court of Appeals held that summary judgment may be granted when a defendant alleges failure to exhaust administrative remedies under the Prison Litigation Reform Act (PLRA), but, in this particular case, the record was not sufficiently developed to support summary judgment.

Keith Mark Dillon was a prisoner ...

A Cage by Any Other Name is Still a Cage: Mentally Ill California Prisoners Caged

by Mike Brodheim

A rose by any other name, Shakespeare wrote, would still smell as sweet.

In California the question is, does referring to a cage as a “therapeutic module” make it any less inhumane, despite the fact that a human being is locked inside a space that the Society ...

Ninth Circuit Denies Arizona Prisoner Access to Dedicated Discharge Account

In a September 27, 2010 decision, the Ninth Circuit Court of Appeals affirmed a district court’s order denying Arizona prisoner Timmy Lee Ward access to a dedicated discharge account while he was still imprisoned.

Ward alleged that since his 197-year sentence made it unlikely that he would be released ...

Queer (In)justice: The Criminalization of LGBT People in the United States, by Joey L. Mogul, Andrea J. Ritchie and Kay Whitlock (Beacon Press, Feb. 2011), 216 pages, $27.95

Reviewed by Daniel R. Schaffer

Queer (In)justice (QI) is a useful and necessary tool for Lesbian, Gay, Bisexual, Transgender, Queer and Gender Non-Conforming (LGBTQGNC) activists and allies to help understand the issues affected by the LGBTQGNC communities when they are ensnared by the criminal justice system. Moving past the ...

“America’s Sheriff” Begins Serving Federal Prison Sentence

In January 2011, Michael S. Carona, the former sheriff of Orange County, California, turned himself in to prison officials at the Federal Correctional Institution Englewood in Littleton, Colorado to begin serving a 5 1/2-year sentence following his 2009 conviction for witness tampering. [See: PLN, Nov. 2009, p.38].

Carona ...

News In Brief

Hawaii: On April 7, 2011, former Oahu Community Correctional Center guard Ryan Malasig, 44, wept at his sentencing hearing after pleading no contest to sexually assaulting a transgender prisoner in 2009. Malasig had forced the prisoner to perform oral sex on him; the prisoner kept a shirt that contained Malasig ...