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Prison Legal News: August, 2011

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Volume 22, Number 8

In this issue:

  1. Prison Legal News Interviews Former Prisoner and Famous Actor Danny Trejo (p 1)
  2. Illinois Federal Court Denies Prisoner Release Order at Cook County Jail (p 9)
  3. From the Editor (p 10)
  4. Treasury Department Finds Prisoners’ Fraudulent Tax Returns Taxing (p 10)
  5. Prosecutors Who Commit Misconduct Are Rarely Disciplined (p 12)
  6. Habeas Hints: Expert Testimony in Habeas Cases (p 14)
  7. Idaho: Prison Doctor’s Treatment Fell Below Standard of Care (p 16)
  8. California DOC Complies With Population Reduction Order in Plata v. Brown (p 18)
  9. Ninth Circuit Reverses Grant of Injunctive Relief in Ex Post Facto Challenge to Marsy’s Law (p 18)
  10. Habeas Unavailable for Federal Prisoners’ Medical Claims (p 19)
  11. State Secrets Doctrine Requires Dismissal of Suit Involving CIA Torture Flights (p 20)
  12. Merger Creates Largest Private Prison Medical Provider in U.S. (p 20)
  13. $4,000 Settlement for Arkansas Prisoner Pepper Sprayed by Guards (p 21)
  14. Virginia DOC Settles Lawsuit to Improve Communication for Deaf Prisoners (p 22)
  15. U.S. Supreme Court: No Monetary Damages Against States Under RLUIPA (p 22)
  16. Placement in Maximum Security Facility May Trigger Due Process Protections; Religious Diet Claims Remanded (p 24)
  17. $1.2 Million Awarded Against PHS After Florida Jail Prisoner Paralyzed (p 24)
  18. Fifth Circuit Vacates Dismissal of Habeas Challenge to Texas Parole Changes (p 25)
  19. Report Finds Prior Incarceration Hinders Upward Economic Mobility (p 26)
  20. California Prisoners Still Forced to Drink Arsenic-Laced Water (p 26)
  21. Judge Rejects Challenge to BOP’s Special Administrative Measures (p 27)
  22. Supreme Court Allows § 1983 Challenge to Texas Post-Conviction DNA Testing Law (p 28)
  23. Washington Supreme Court Upholds Decision Against State Attorney General for Failure to Comply with Public Records Act (p 28)
  24. Provision in Florida Law Prohibits Compensation to Wrongfully Convicted (p 30)
  25. U.S. Supreme Court Overturns Wrongful Conviction Suit Against New Orleans DA, Vacates $14 Million Judgment (p 30)
  26. Oklahoma Gladiator Discipline Results in Prisoner’s Death (p 31)
  27. Ohio Prison Industry Cranks Out Crappy Toilet Paper (p 32)
  28. U.S. Department of Justice Seeks $28.2 Billion Budget (p 33)
  29. Prison Records Officer Entitled to Qualified Immunity; No Evidence of Deliberate Indifference to Sentencing Errors (p 34)
  30. Washington Prison Guards Sue Prisoners (p 34)
  31. $17.5 Million Verdict for Diabetic Prisoner in New York (p 35)
  32. Louisiana Attorney Permanently Disbarred but Not Criminally Charged for Pimping Child to Jail Prisoners (p 36)
  33. Insider Trading Charges Against Private Prison Consultant Rejected (p 36)
  34. Voting Rights Must Be “Earned” Back, Says Iowa Governor (p 37)
  35. Hawaii State Auditor Blasts Private Prison Contracting; State Renews Contract Anyway (p 38)
  36. New York Prisoners Man Call Centers (p 39)
  37. Fifth Circuit Upholds $355,000 Award Against Dallas County in Jail MRSA Case (p 40)
  38. Federal Court Dismisses PLN’s Texas Prison Censorship Suit; Appeal Pending (p 40)
  39. State Ordered to Reimburse Prisoner Who Was Not Allowed to Complete College Classes (p 41)
  40. Texas Prison Phones and Emails Generate Less Revenue Than Expected (p 42)
  41. Washington State Regulatory Agency Finds AT&T Failed to Disclose Prison Collect Call Rates (p 43)
  42. American “Corrections” (p 44)
  43. Oregon Jail Pneumonia Death Lawsuit Settles for $905,000 (p 44)
  44. Los Angeles Jail Guards Beat Prisoner in Front of ACLU Monitor (p 45)
  45. Terminated South Carolina Wardens Awarded a Total of $882,000 (p 46)
  46. Sixth Circuit Reinstates Michigan Prisoner’s Denial of Toothpaste Suit (p 46)
  47. California: Court Monitoring of Conditions at Pelican Bay State Prison Terminated (p 47)
  48. Illinois Prison Guards Scam Workers’ Comp (p 47)
  49. Seventh Circuit: Court May Not Revoke Supervised Release via Videoconference (p 48)
  50. Big Win for Open Government in Vermont Legislature: Attorney Fees Now Mandated for Prevailing Plaintiffs in Public Records Lawsuits (p 48)
  51. Ninth Circuit Upholds Arizona’s Felon Disenfranchisement Law (p 49)
  52. $450,000 Settlement in Alabama Jail Prisoner’s Death (p 49)
  53. News In Brief (p 50)

Prison Legal News Interviews Former Prisoner and Famous Actor Danny Trejo

Danny Trejo is one of the best-known American actors living today. His scarred face is among the most recognized in action movies and he has appeared in over 200 films, including Heat, Machete, Predators, From Dusk Till Dawn and many others. Less well known is the fact that Danny spent ...

Illinois Federal Court Denies Prisoner Release Order at Cook County Jail

In a per curium decision, on January 11, 2011 a three-judge panel of federal judges of the U.S. District Court for the Northern District of Illinois denied a request by the Sheriff of Cook County for entry of a prisoner release order pursuant to 18 U.S.C. § 3626 ...

From the Editor

Over the years some readers have said they find Prison Legal News depressing because we don’t report any good news, or not much anyway. One reason for that, of course, is because there has been precious little “good news” emanating from the American criminal justice system over the past ...

Treasury Department Finds Prisoners’ Fraudulent Tax Returns Taxing

Despite passage of the Inmate Tax Fraud Prevention Act of 2008, the Internal Revenue Service has been unable to curb alleged income tax fraud by prisoners, according to a report released by the Inspector General of the U.S. Department of the Treasury.

The report, dated December 29, 2010, found ...

Prosecutors Who Commit Misconduct Are Rarely Disciplined

by Matt Clarke

Prosecutors have a great deal of power and discretion. They choose whether to prosecute a case, what charges to file against a defendant and what plea bargain to offer. They can influence the court when imposing sentence and can even seek the death penalty. Prosecutors are also ...

Habeas Hints: Expert Testimony in Habeas Cases

by Kent Russell

This column provides “Habeas Hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on habeas corpus under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice in federal courts ...

Idaho: Prison Doctor’s Treatment Fell Below Standard of Care

by David M. Reutter

The Idaho State Board of Medicine’s Prelitigation Screening Panel found that a prisoner at the CCA-operated Idaho Correctional Center had “borne his burden of proving by a preponderance of the evidence that Dr. [Stephen] Garrett did not comply with the standard of care in failing ...

California DOC Complies With Population Reduction Order in Plata v. Brown

by John E. Dannenberg

On June 7, 2011, a scant seven days after the U.S. Supreme Court’s historic ruling affirming a three-judge panel’s order to reduce overcrowding in California’s state prisons (Brown v. Plata, No. 09-1233 (see PLN, July 2011, p. 1)), the state belatedly responded to the panel’s ...

Ninth Circuit Reverses Grant of Injunctive Relief in Ex Post Facto Challenge to Marsy’s Law

by Mike Brodheim

The Ninth Circuit Court of Appeals has held that a district court abused its discretion in granting preliminary injunctive relief to a group of California life-term prisoners who challenged, on Ex Post Facto grounds, a 2008 voter-approved initiative (Prop 9) which drastically reduced the availability and frequency ...

Habeas Unavailable for Federal Prisoners’ Medical Claims

Federal prisoners may not resort to habeas corpus to challenge inadequate medical care, the U.S. Court of Appeals for the Seventh Circuit decided on January 26, 2011.

Charles Robinson sought habeas relief under 28 U.S.C. § 2241 after federal prison officials allegedly refused to treat his complaints of ...

State Secrets Doctrine Requires Dismissal of Suit Involving CIA Torture Flights

On September 8, 2010, the Ninth Circuit Court of Appeals held the “valid assertion of the state secrets privilege” warranted dismissal of a lawsuit filed by suspects apprehended as part of the CIA’s extraordinary rendition program.

The suit was filed under the Alien Tort Statute by Binyam Mohamed and ...

Merger Creates Largest Private Prison Medical Provider in U.S.

On March 3, 2011, American Service Group, Inc. (ASG) and Valitás Health Services, Inc. (VHS) announced a planned merger of the two companies that would create the largest contractor for healthcare services in prisons and jails in the United States.

Under the deal, VHS will acquire ASG for $26 per ...

$4,000 Settlement for Arkansas Prisoner Pepper Sprayed by Guards

The Arkansas Department of Correction (ADOC) has paid $4,000 to settle a lawsuit brought by a prisoner who was pepper sprayed three times by guards.

While confined at the Varner Supermax Unit in 2005, Eric Winston was repeatedly pepper sprayed. The guards claimed that Winston refused to vacate his ...

Virginia DOC Settles Lawsuit to Improve Communication for Deaf Prisoners

The Virginia Department of Corrections (VDOC) has agreed to settle a lawsuit brought by deaf prisoners. The settlement makes substantial changes to improve such prisoners’ ability to interact in the prison environment and rehabilitate themselves.

“We believe the settlement agreement in which the [VDOC] joined strikes a very fair balance ...

U.S. Supreme Court: No Monetary Damages Against States Under RLUIPA

On April 20, 2011, the U.S. Supreme Court ruled that state sovereign immunity bars recovery of monetary damages under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq.

Harvey Leroy Sossamon III, a Texas state prisoner incarcerated at the Robertson Unit, filed ...

Placement in Maximum Security Facility May Trigger Due Process Protections; Religious Diet Claims Remanded

The U.S. Court of Appeals for the Sixth Circuit has reversed a district court’s grant of summary judgment to Michigan prison officials in a procedural due process and religious diet lawsuit.

Lamont Bernard Heard received a Security Threat Group II (STG II) assignment and was placed in a ...

$1.2 Million Awarded Against PHS After Florida Jail Prisoner Paralyzed

A federal jury in Florida has awarded $1.2 million to a former prisoner who was paralyzed due to deliberate indifference to his serious medical needs while he was incarcerated at the Lee County Jail. The jury found that the jail’s for-profit medical provider, Prison Health Services (PHS), was ...

Fifth Circuit Vacates Dismissal of Habeas Challenge to Texas Parole Changes

On February 2, 2011, the Fifth Circuit Court of Appeals vacated a district court’s judgment dismissing a prisoner’s challenge to retroactive changes in Texas parole procedures.

Matthew Clarke, a Texas state prisoner and PLN contributing writer, filed a habeas corpus petition in federal district court pursuant to 28 ...

Report Finds Prior Incarceration Hinders Upward Economic Mobility

by Matt Clarke

The Pew Charitable Trusts’ Economic Mobility Project and Public Safety Performance Project issued a collaborative report in September 2010 on the impact of incarceration on economic mobility. The report found a strong negative effect of incarceration on upward economic mobility not only for former prisoners but also ...

California Prisoners Still Forced to Drink Arsenic-Laced Water

by David M. Reutter

Prisoners at California’s Kern Valley State Prison in Delano are being slowly poisoned through their drinking water. The “state of the art” facility opened at a cost of $379 million in 2005; the water problem was discovered within weeks of the prison’s opening, but ...

Judge Rejects Challenge to BOP’s Special Administrative Measures

On January 27, 2011, U.S. District Court Judge Lewis T. Babcock dismissed a lawsuit challenging Special Administrative Measures (SAMs) imposed by the federal Bureau of Prisons (BOP). SAMs are authorized under 28 C.F.R. § 501.3(a).

Mohamed Rashed Daoud Al-Owhali, serving life plus 40 years for the ...

Supreme Court Allows § 1983 Challenge to Texas Post-Conviction DNA Testing Law

Supreme Court Allows § 1983 Challenge to Texas Post-Conviction DNA Testing Law

On March 7, 2011, the U.S. Supreme Court held that a Texas prisoner could challenge the due process he received under Texas’ post-conviction DNA testing statute, Article 64 of the Texas Code of Criminal Procedure, as that statute ...

Washington Supreme Court Upholds Decision Against State Attorney General for Failure to Comply with Public Records Act

On September 16, 2010, the Supreme Court of the State of Washington, sitting en banc, upheld a lower court’s finding that the Attorney General’s Office had failed to produce requested documents under the state’s Public Records Act and failed to provide a brief explanation as to why ...

Provision in Florida Law Prohibits Compensation to Wrongfully Convicted

by David M. Reutter

A “clean hands” provision in a Florida law designed to compensate wrongfully convicted prisoners is preventing most of those prisoners from receiving compensation. Of 13 men cleared by DNA evidence in Florida, only one has qualified for compensation while two eventually received payments through legislative claim ...

U.S. Supreme Court Overturns Wrongful Conviction Suit Against New Orleans DA, Vacates $14 Million Judgment

by Derek Gilna and Brandon Sample

In a March 29, 2011 five-to-four decision, the U.S. Supreme Court ruled against a former Louisiana prisoner who filed a § 1983 suit against Orleans Parish District Attorney Harry F. Connick, Sr., based upon admitted Brady errors. The Supreme Court’s decision reversed a ...

Oklahoma Gladiator Discipline Results in Prisoner’s Death

The estate of a prisoner killed by his codefendant claimed in a lawsuit that guards at the Oklahoma State Penitentiary (OSP) used a “gladiator system” to discipline prisoners.

Paul David Duran, Jr., 24, and Jesse James Dalton, 33, were convicted on charges related to a 2002 home invasion robbery. Duran ...

Ohio Prison Industry Cranks Out Crappy Toilet Paper

by David M. Reutter

The foray by Ohio Penal Industries (OPI), a branch of the Ohio Department of Rehabilitation and Correction, into manufacturing toilet paper has turned out to be a crappy deal for taxpayers.

OPI creates a wide variety of products at 24 manufacturing sites in 16 prisons. The ...

U.S. Department of Justice Seeks $28.2 Billion Budget

Despite initial reports that the Justice Department’s 2012 budget would decrease, the latest numbers indicate the Department will seek a 2% increase, including a 10% hike for prison operations.

During a February 14, 2011 public news briefing, Deputy Attorney General James Cole said the issue of whether terrorism detainees ...

Prison Records Officer Entitled to Qualified Immunity; No Evidence of Deliberate Indifference to Sentencing Errors

On April 22, 2010, the Third Circuit Court of Appeals held that a Pennsylvania prison records officer was entitled to qualified immunity for a prisoner allegedly being confined 10 months beyond his maximum term of imprisonment.

On August 11, 1992, Miguel Montanez was sentenced to 60 months in prison with ...

Washington Prison Guards Sue Prisoners

Prisoners who attack Washington state prison guards can add one more potential consequence to their actions – garnishment of their commissary accounts.

The effort to garnish prisoners’ accounts is being spearheaded by the Washington Staff Assault Task Force (WSATF), a group of guards who hope to deter assaults by suing their ...

$17.5 Million Verdict for Diabetic Prisoner in New York

A diabetic prisoner who was denied insulin by officers with the New York Police Department (NYPD) was awarded $17.5 million by a Brooklyn jury on October 19, 2010.

For nearly 58 hours after Jose Vargas’ arrest on drug charges in September 2006, he went without insulin for his Type ...

Louisiana Attorney Permanently Disbarred but Not Criminally Charged for Pimping Child to Jail Prisoners

by David M. Reutter

An attorney’s failure to respect the authority of the Louisiana Supreme Court, “as well as his use of his position as an attorney to obtain sexual gratification at the expense of his client’s interests,” has resulted in permanent disbarment.

The January 19, 2011 order ...

Insider Trading Charges Against Private Prison Consultant Rejected

by David M. Reutter

A Florida federal district court has rejected insider trading charges brought against a consultant for Correctional Services Corporation (CSC). The civil complaint, filed in September 2008 by the Securities and Exchange Commission (SEC), charged Dr. Zachariah P. Zachariah, his brother Dr. Mamen P. Zachariah, and his ...

Voting Rights Must Be “Earned” Back, Says Iowa Governor

Regaining voting rights for former felons in Iowa just got harder.

Making good on a campaign promise, the newly-elected governor of Iowa, Terry Branstad, a Republican, has rescinded a July 4, 2005 executive order that allowed felons to vote after they completed their sentences.

Branstad signed a new executive order ...

Hawaii State Auditor Blasts Private Prison Contracting; State Renews Contract Anyway

On December 29, 2010, the State Auditor of Hawaii released a report highly critical of the way the Hawaii Department of Public Safety (DPS) contracts for private prison beds on the U.S. mainland.

The report found that the DPS overstated the cost of housing prisoners in Hawaii while understating ...

New York Prisoners Man Call Centers

The current era of budget deficits and fiscal austerity has made prison labor fashionable, at least in the eyes of some government officials.

For nearly two decades, New York State’s Department of Motor Vehicles (DMV) has been operating a call center from New York’s Bayview and Arthur Kill ...

Fifth Circuit Upholds $355,000 Award Against Dallas County in Jail MRSA Case

On January 13, 2011, the Fifth Circuit Court of Appeals upheld a judgment in a lawsuit filed by a former prisoner who contracted Methicillin-Resistant Staphylococcus Aureus (MRSA) while incarcerated at the Dallas County Jail, resulting in the loss of sight in one eye. The federal district court jury had awarded ...

Federal Court Dismisses PLN’s Texas Prison Censorship Suit; Appeal Pending

On January 4, 2011, a Texas federal district court dismissed PLN’s challenge to censorship of books by the Texas Department of Criminal Justice (TDCJ).

PLN had filed a civil rights suit under 42 U.S.C. § 1983 against TDCJ Executive Director Brad Livingston, TDCJ Mail Systems Coordinating Panel chairperson ...

State Ordered to Reimburse Prisoner Who Was Not Allowed to Complete College Classes

An Illinois prisoner was awarded $1,225 by a state Court of Claims for tortious interference with a business relationship by the Illinois Department of Corrections (IDOC).

While incarcerated at Stateville Penitentiary, Marshan Terrell Allen received permission from prison staff to enroll in two college correspondence courses from Ohio University ...

Texas Prison Phones and Emails Generate Less Revenue Than Expected

When the Texas legislature passed SB 1580 in 2007, requiring the Texas Department of Criminal Justice (TDCJ) to install phones in state prisons, Texas was the only state that did not allow prisoners to make regular phone calls. Even so, the bill faced opposition and only passed because lawmakers expected ...

Washington State Regulatory Agency Finds AT&T Failed to Disclose Prison Collect Call Rates

Washington State Regulatory Agency Finds AT&T Failed to Disclose Prison Collect Call Rates

by Derek Gilna and Brandon Sample

On March 31, 2011, AT&T Communications of the Pacific Northwest was found guilty by the Washington State Utilities and Transportation Commission of failing to disclose charges for collect calls ...

American “Corrections”

At SCI Pittsburgh in Woods Run, Pennsylvania, prisoners and guards alike made the phenomenon of imprisonment more hellish than usual.

That’s because, according to at least one broadcast report, men at the medium- to minimum-security lock-up, particularly those convicted of sexual assaults against children, were raped by other prisoners ...

Oregon Jail Pneumonia Death Lawsuit Settles for $905,000

The estate of a woman who died of pneumonia at the Multnomah County Detention Center (MCDC) in Portland, Oregon has agreed to settle a federal wrongful death suit for $905,000.

Homeless heroin addict Holly Jean Casey, 36, was arrested on January 3, 2008 for failure to appear in court ...

Los Angeles Jail Guards Beat Prisoner in Front of ACLU Monitor

by David M. Reutter

A monitor with the American Civil Liberties Union of Southern California (ACLU/SC) witnessed the brutal beating of a prisoner at the Twin Towers Correctional Facility by two Los Angeles County sheriff’s deputies. Twin Towers is part of the county’s jail system.

The January ...

Terminated South Carolina Wardens Awarded a Total of $882,000

On December 22, 2010, the South Carolina Court of Appeals upheld a $372,000 verdict in favor of a prison warden who was wrongfully terminated by the South Carolina Department of Corrections (SCDC).

In 2002, SCDC Investigator Karen Hair was assigned to the Lee Correctional Institution (LCI). Hair did not ...

Sixth Circuit Reinstates Michigan Prisoner’s Denial of Toothpaste Suit

On May 6, 2010, the U.S. Court of Appeals for the Sixth Circuit reversed the dismissal of a Michigan prisoner’s federal civil rights lawsuit in which he claimed he was denied toothpaste for nearly a year.

In January 2005, while held at the Newberry Correctional Facility, Jerry Flanory ...

California: Court Monitoring of Conditions at Pelican Bay State Prison Terminated

On March 21, 2011, the Honorable Thelton E. Henderson, U.S. District Court Judge for the Northern District of California, issued an order terminating all remaining aspects of federal court monitoring of conditions at Pelican Bay State Prison. In so doing, the court relinquished jurisdiction over a 1990 class-action lawsuit ...

Illinois Prison Guards Scam Workers’ Comp

The chairman of the Illinois Workers’ Compensation Commission (IWCC) has called for an investigation of workers’ comp claims filed by guards at the maximum-security Menard Correctional Center.

Since January 2008, over 500 workers’ compensation claims have been filed by Menard guards. Most of the claims seek compensation for so-called “repetitive ...

Seventh Circuit: Court May Not Revoke Supervised Release via Videoconference

by Matt Clarke

On March 19, 2010, the Seventh Circuit Court of Appeals held that a federal district court violated Rule 32.l(b)(2) of the Federal Rules of Criminal Procedure when the judge used videoconferencing technology to appear at a supervised release revocation hearing.

Christopher R. Thompson was ...

Big Win for Open Government in Vermont Legislature: Attorney Fees Now Mandated for Prevailing Plaintiffs in Public Records Lawsuits

Vermont’s public records law will be getting a makeover thanks to a push from open government advocates, the administration of newly-elected Governor Peter Shumlin and a legislature that saw the need for greater government transparency.

The key provision of the public records reform bill, H. 73, adds an enforcement ...

Ninth Circuit Upholds Arizona’s Felon Disenfranchisement Law

by David M. Reutter

The Ninth Circuit Court of Appeals held on May 27, 2010 that Arizona’s felon disenfranchisement law does not violate the Fourteenth Amendment. The law is based on Arizona’s Constitution, which provides that anyone convicted of treason or a felony may not vote unless their ...

$450,000 Settlement in Alabama Jail Prisoner’s Death

by David M. Reutter

The estate of a prisoner who died at Alabama’s Washington County Jail has agreed to accept $450,000 to settle a wrongful death suit.

Shawn Desmond Woodard, 33, was being held at the Washington County Jail on a probation violation when he became sick on ...

News In Brief

Alabama: A prisoner’s refusal to surrender a contraband cell phone to guards led to an uprising at the Holman prison in April 2011 that was quelled by the facility’s SORT team. “The inmates did not take over the unit. What actually happened, the supervisor came on the unit, the confrontation ...