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Prisoner Education Guide

Prison Legal News: September, 2013

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Volume 24, Number 9

In this issue:

  1. Prison Rape Elimination Act Standards Finally in Effect, but Will They be Effective? (p 1)
  2. Prisoners Raped and Sexually Abused While PREA Standards Pending (p 17)
  3. U.S. Supreme Court Denies Stay of California Prisoner Release Order (p 21)
  4. From the Editor (p 22)
  5. Employee Disciplinary Problems Persist at Houston Jails (p 23)
  6. How Privatization Destroyed an Illinois Jail's Award-winning Suicide Prevention Program (p 24)
  7. Missouri: Arrestees Billed for Cost of Police Tasers (p 25)
  8. High-Tech, High-Risk Forensics (p 26)
  9. The Americans with Disabilities Act and Prisoners (p 28)
  10. Michigan County Sanctioned for Defrauding Federal Court in Prisoner Death Case (p 30)
  11. Solitary Confinement for Death Row Prisoners a Blot on U.S. Justice System (p 32)
  12. Oklahoma’s DNA Law Means Post-Conviction Testing Available in All 50 States (p 33)
  13. Habeas Hints: Actual Innocence (p 34)
  14. Second Circuit Establishes Property Seizure Standards for Civilly Committed Persons (p 36)
  15. 500 Escape from Abu Ghraib and Taji Prisons in Iraq (p 37)
  16. Illinois DOC’s Failure to Accommodate Disabled Prisoners States Rehabilitation Act Claim (p 38)
  17. Seventh Circuit: Indiana Tolling Provision May Excuse Time-Barred Suit; Rule 12(b)(6) Dismissal Improper (p 40)
  18. PLN Resolves Censorship Suit Against Oregon County Jail for $51,000 Plus Fees and Costs (p 40)
  19. After Ten Years, FCC Votes for Prison Phone Reforms! (p 42)
  20. First Circuit: Rejection of Settlement Offer Does Not Justify Defendants’ Attorney Fee Award (p 44)
  21. Pennsylvania: Parole Board May Expound on Court-ordered Probation Conditions (p 44)
  22. Washington Community Custody, Sex Offender Registration and Release Conditions Modified (p 46)
  23. Seventh Circuit Retires “De Minimis” Standard for Use of Physical Force (p 46)
  24. New Mexico Prison Doctor Fingered in Lawsuits (p 47)
  25. Qualified Immunity for NY Prison Officials who Failed to Award Parole Jail Time (p 48)
  26. Minnesota: Remedies for Civil Commitments are Limited (p 48)
  27. Wrongful Immigration Detention Suit Reinstated by Second Circuit, Dismissed on Remand (p 50)
  28. Ninth Circuit Requires Notice to Pro Se Prisoner Litigants for Motions to Dismiss for Failure to Exhaust (p 52)
  29. California Supreme Court: Cutting Through Fences May Not Constitute Attempt to Escape (p 52)
  30. Seventh Circuit Upholds CCA’s Victory in Indiana Jail Conditions Suit (p 53)
  31. California: Victim’s Post-Death Economic Losses Not Subject to Mandatory Restitution (p 54)
  32. Second Circuit: No Social Security Payments for Prisoners (p 54)
  33. News in Brief (p 56)

Prison Rape Elimination Act Standards Finally in Effect, but Will They be Effective?

"Sexual abuse is not an inevitable feature of incarceration. Leadership matters because corrections administrators can create a culture within facilities that promotes safety instead of one that tolerates abuse." – National Prison Rape Elimination Commission

A report released by Human Rights Watch in 2001, titled "No Escape: Male Rape in U.S. Prisons," served as a catalyst which, in conjunction with increased public awareness about the issue of prison rape, led numerous organizations to lobby for federal legislation to address the dilemma of sexual abuse behind bars.

Michael J. Horowitz, a senior fellow at the Hudson Institute, garnered support for the legislation from a number of conservative and evangelical organizations – particularly Prison Fellowship, founded by former special counsel to President Nixon (and ex-federal prisoner) Charles "Chuck" Colson.

Groups from opposite ends of the political spectrum joined together to back the bill, including Just Detention International (formerly Stop Prisoner Rape), the NAACP, Amnesty International, National Council of La Raza, Concerned Women for America, the Salvation Army, Penal Reform International and Focus on the Family.

For some, legislation to protect prisoners from sexual abuse was preferable to enlarging their legal rights. According to a 2002 article in the National Review, "While ...

Prisoners Raped and Sexually Abused While PREA Standards Pending

As described in this issue’s cover story, in May 2012 the U.S. Department of Justice issued a final rule adopting national standards pursuant to the Prison Rape Elimination Act (PREA). The rule was published in the Federal Register and became effective on August 20, 2012; however, state and local corrections agencies were given one year to provide PREA-related training to current employees. Likewise, the first PREA audit cycle, to ensure compliance with the standards, didn’t begin until a year after the rule’s effective date.

Therefore, during the one-year period ending August 20, 2013, state and local corrections officials finalized policies to comply with the PREA standards and trained staff members on PREA-related issues, including “zero-tolerance [policies] for sexual abuse and sexual harassment” and “[h]ow to fulfill their responsibilities under agency sexual abuse and sexual harassment prevention, detection, reporting, and response policies and procedures.”

Concurrently, prison and jail employees nationwide continued a long-standing pattern of raping and sexually assaulting prisoners – a pattern that Prison Legal News has documented extensively. [See, e.g.: PLN, April 2012, p.1; May 2009, p.1; Aug. 2006, p.1].

The following are examples of rape and sexual abuse involving corrections ...

U.S. Supreme Court Denies Stay of California Prisoner Release Order

In a 6-3 decision issued August 2, 2013, the U.S. Supreme Court denied California Governor Jerry Brown’s request for a stay of a three-judge court’s order requiring the state to comply with a December 31, 2013 deadline to reduce California’s in-state prison population to approximately 110,000, or 137.5% of design capacity. [See: PLN, Aug. 2013, p.20].

Justices Alito, Scalia and Thomas would have granted the stay. In an acerbic dissent, Justice Scalia reasserted his opinion in the Court’s May 23, 2011 ruling upholding the release order, stating the order “violated the clear limitations of the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A) – ‘besides defying all sound conception of the proper role of judges.’” [See: PLN, July 2011, p.1].

The three-judge court’s release order, according to Scalia, was a “bluff” to gain compliance from the state while allowing state officials to decide how to accomplish the prison population reduction. In his dissent, Scalia lamented, “The bluff has been called, and the Court has nary a pair to lay on the table.” He sided with Governor Brown’s argument asserting the substantial progress the state had made ...

From the Editor

The month of August was fairly eventful from a criminal justice perspective. New York City’s “stop and frisk” policy, under which police officers stopped and searched hundreds of thousands of predominantly black and Hispanic men, was found to be unconstitutional. U.S. Attorney General Eric Holder, Jr. announced that federal prosecutors would no longer seek mandatory minimum sentences for certain low-level, nonviolent drug offenders. And most importantly, the Federal Communications Commission (FCC) finally acted on the Wright petition and voted to cap the cost of interstate prison and jail phone calls nationwide.

In regard to the latter development, as reported in greater detail in this issue of PLN, more than ten years ago Martha Wright filed a lawsuit over the high cost of prison telephone calls, which resulted in a petition for rulemaking being submitted to the FCC. The FCC’s recent order capping interstate prison phone rates is a victory directly attributable to the hard work and efforts of Deborah Golden, Phil Fornaci and Lee Petro, the attorneys who filed the lawsuit and pursued the FCC petition, who have steadfastly advocated for justice for Mrs. Wright.

Kudos also go to the Campaign for Prison Phone Justice, founded in ...

Employee Disciplinary Problems Persist at Houston Jails

by Matt Clarke

Misconduct by employees in the Harris County jail system in Houston, Texas remains persistent and problematic.

A Houston Chronicle review of employee disciplinary actions from 2008 through 2010 found there was an average of 67 disciplinary cases annually, totaling more than 200 during the three-year period.

In 2011, 88 jail employees were disciplined, including seven who used excessive force against prisoners – an increase of 31% over the three-year average. From January to April 1, 2012, Harris County Sheriff Adrian Garcia fired nine staff members.

Employees were punished for offenses such as having sex with prisoners, excessive use of force, mistakenly releasing prisoners, sleeping on the job, destroying prisoners’ mail and leaving an assigned post to play a game of dominos.

A June 2009 report by the U.S. Department of Justice (DOJ) had criticized a “flawed” use of force policy at the jail and “systemic deficiencies” in employee training, which exposed prisoners to harm. DOJ investigators found a significant number of cases in which jail employees had used excessive force – including choke holds and hog-tying prisoners, both of which can cause death by suffocation. [See: PLN, Jan. 2010, p.14; Oct. 2009, p.1].

“It strikes to ...

How Privatization Destroyed an Illinois Jail's Award-winning Suicide Prevention Program

Several years ago, while working at our local Books to Prisoners, I met a volunteer who was formerly a mental health counselor in the local jail in Champaign County, Illinois. This was just after there had been three jail suicides within a six-month period in 2004. She recalled a time when she worked with the "Crisis Team," a nationally-recognized mental health program which for 20 years prevented any suicides at the jail. In response to the three suicides, Sheriff Dan Walsh outsourced mental health services to Health Professionals Ltd. (HPL), a private company based in Peoria, Illinois. Yet this has not stopped suicides and other deaths at the jail.

There is a current debate in Champaign County, where the twin cities of Champaign-Urbana are home to the University of Illinois, about whether to allocate millions of dollars toward a new jail. Sheriff Walsh has frequently cited the large percentage of those with mental illness (as much as 20 percent of the daily population) and argued for the need to expand the jail's mental health facilities. More than just bricks and mortar, this issue demands that we look into quality of services provided by the private company HPL. We have ...

Missouri: Arrestees Billed for Cost of Police Tasers

Police officers in St. Joseph, Missouri have successfully recouped payments from defendants for the cost of “tasing” them during an arrest. It costs $24.99 for a Taser cartridge and about $1.05 in battery use each time an officer tases a suspect, according to the police department’s Taser instructor, Brendan McGinnis.

Between March and December 2012, the department sought restitution in 64 cases where Tasers were used, representing approximately $2,000 in costs and resulting in payments totaling about $700. Within the first five months of 2013, 28 Taser deployments resulted in another $790 in restitution being requested by prosecutors, who petition the courts to impose the sanction. A state law allows police departments to recover general arrest costs, said McGinnis.

While there have been numerous civil actions alleging wrongful deaths related to Taser use by law enforcement officers [see, e.g.: PLN, Feb. 2013, p.46; Jan. 2012, p.42; Oct. 2011, p.40], McGinnis sees no conflict in viewing Taser deployments in the same light as DWI cases, in which restitution for police expenditures also has been sought.

“We’re spending about $4,000 a year for Taser usage, a cost we will never recover,” he ...

High-Tech, High-Risk Forensics

by Prof. Osagie K. Obasogie

When the police arrived last November at the ransacked mansion of the millionaire investor Raveesh Kumra, outside of San Jose, California, they found Mr. Kumra had been blindfolded, tied and gagged. The robbers took cash, rare coins and ultimately Mr. Kumra’s life; he died at the scene, suffocated by the packaging tape used to stifle his screams. A forensics team found DNA on his fingernails that belonged to an unknown person, presumably one of the assailants. The sample was put into a DNA database and turned up a “hit” – a local man by the name of Lukis Anderson.

Bingo. Mr. Anderson was arrested and charged with murder.

There was one small problem: the 26-year-old Mr. Anderson couldn’t have been the culprit. During the night in question, he was at the Santa Clara Valley Medical Center, suffering from severe intoxication.

Yet he spent more than five months in jail with a possible death sentence hanging over his head. Once presented with Mr. Anderson’s hospital records, prosecutors struggled to figure out how an innocent man’s DNA could have ended up on a murder victim.

Late last month, prosecutors announced what they believe to ...

The Americans with Disabilities Act and Prisoners

The language of Title II of the Americans with Disabilities Act (ADA) is succinct: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

In Pennsylvania DOC v. Yeskey, 524 U.S. 206 (1998) [PLN, Sept. 1998, p.1], the Supreme Court held that the ADA applies to people in prison. Title II of the ADA defines “public entity” to include “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(B). In Yeskey, Justice Scalia wrote, “The text of the ADA provides no basis for distinguishing these programs, services, and activities from those provided by public entities that are not prisons.” Thus, Title II of the ADA extends to prisoners.

DOJ Investigates Pennsylvania Prison

On May 31, 2013, the U.S. Department of Justice (DOJ) issued a findings letter that detailed the results of an investigation into the use of solitary confinement on prisoners with serious mental illnesses at ...

Michigan County Sanctioned for Defrauding Federal Court in Prisoner Death Case

by David M. Reutter

On April 4, 2012, a Michigan federal district court imposed sanctions against Wayne County for committing fraud and misrepresentation upon the court and opposing counsel in a prisoner’s wrongful death suit.

The lawsuit was filed by the personal representative of John C. Fahner, who was murdered at the Wayne County Jail on June 27, 2006 by another prisoner. With the exception of Nurse Bernadine Tuitt-Hill (Tuitt), an ex-county employee against whom a default judgment was entered, the district court had granted summary judgment to all of the remaining defendants.

The whereabouts of Nurse Tuitt had become a “great mystery” since the court permitted the plaintiff to file an amended complaint on February 12, 2010, which added Tuitt as a defendant. On June 28, 2010, the court held a hearing on a motion to compel Wayne County to disclose whatever information it had to solve that mystery and locate Tuitt so she could be served.

The Magistrate Judge asked the county’s attorney, Karie H. Boylan, what she knew about Nurse Tuitt’s whereabouts. “I do not know. I have no idea where she is...,” Boylan responded. “I have heard she’s in Trinidad and Tobago ...

Solitary Confinement for Death Row Prisoners a Blot on U.S. Justice System

Although more and more states have abolished the death penalty in recent years, with six states doing away with capital punishment since 2007, the death penalty still has strong support in certain elements of society, notably among lawmakers. However, there should be little dispute as to the growing body of evidence that indicates holding death row prisoners in solitary confinement is both dehumanizing and damaging.

According to a 14-page report released by the American Civil Liberties Union (ACLU) in July 2013, more than 3,000 death row prisoners nationwide are held in solitary confinement. Although the separation of death-sentenced prisoners from the general prison population is cloaked in the legitimacy of the judicial process and deemed acceptable by the courts and the rest of the justice system bureaucracy, the fact remains that placing death row prisoners in solitary for years or decades before executing them constitutes a sadistic form of “death before dying.”

Even if condemned prisoners held in solitary are eventually exonerated and released – and 142 have been since 1973 – the long years of forced isolation take their toll on the physical and mental well-being of those on death row.

As the ACLU report puts it, “While many in ...

Oklahoma’s DNA Law Means Post-Conviction Testing Available in All 50 States

On May 24, 2013, Oklahoma Governor Mary Fallin signed into law a comprehensive post-conviction DNA review process for defendants in cases involving violent felonies or resulting in sentences of 25 years or more. Oklahoma thus became the final state to pass a post-conviction DNA testing statute.

Barry Scheck, co-director of the Innocence Project, which has championed DNA testing as a forensic tool, hailed the Oklahoma law as a victory. “Two decades ago, when we founded the Innocence Project, no state in the nation had a law on the books to help wrongfully convicted people access DNA testing to prove their innocence. Today, every state in the country now has a law allowing wrongfully convicted people the legal means to request DNA testing.”

At least 310 people have been exonerated by post-conviction DNA tests since 1989, when such testing became forensically feasible. Larry Peterson, for example, spent 16 years in New Jersey prisons after being falsely convicted of murder. Following the passage of New Jersey’s DNA testing statute in 2002, Peterson was released when he was able to prove he was not the perpetrator of the crime.

Most recently, in Laramie County, Wyoming, charges of first-degree sexual assault and aggravated ...

Habeas Hints: Actual Innocence

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 the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.

In McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), the U.S. Supreme Court held that “actual innocence,” if proved, is a gateway through which a habeas petitioner can make it into federal court even though the AEDPA statute of limitations has run. McQuiggin is an important case because it potentially opens the door to the federal courthouse for prisoners who claim they are innocent but whose convictions are so old that they otherwise would have been barred by AEDPA’s one-year statute of limitations. On the other hand, the standard of proof for actual innocence claims is so demanding that only a handful of prisoners will be able to satisfy it.

McQuiggin involved a habeas corpus petitioner (Floyd Perkins) who had been convicted of first-degree murder and sentenced to death in 1977. The prosecution’s star witness at trial, Damarr Jones, was ...

Second Circuit Establishes Property Seizure Standards for Civilly Committed Persons

As a matter of first impression, the Second Circuit Court of Appeals has undertaken a Fourth Amendment balancing analysis with regard to the right of a civilly committed person to be free from unreasonable seizures under the Fourth Amendment.

Karl Ahlers, a convicted sex offender, was civilly committed by the State of New York after serving 23 years in prison for multiple sex offenses involving children. He filed a civil rights complaint in 2008 alleging First and Fourteenth Amendment violations and denial of procedural due process after staff at the Manhattan Psychiatric Center (the Center) seized and withheld his personal DVDs and CDs and his incoming mail.

Over time, Ahlers had collected 163 DVDs and 86 CDs (collectively, discs) with the Center’s permission. On April 21, 2008, staff entered his room without warning and seized all of his discs. Most were returned, but some were permanently confiscated for containing inappropriate sexual content. The district court dismissed Ahlers’ complaint for failure to state a claim.

On appeal, the Second Circuit held the reasonableness of the seizure was dependent on a balancing of interests: the state’s interest in order, security and treatment, and Ahlers’ property interest in retaining his discs ...

500 Escape from Abu Ghraib and Taji Prisons in Iraq

On July 21, 2013, military-style assaults at Iraq’s notorious Abu Ghraib prison and another prison in Taji resulted in the escape of more than 500 prisoners, including an unknown number of al-Qaida members. Many of the prisoners were captured or killed the same day, said Hakim al-Zamili, an Iraqi lawmaker. Authorities believe an attack on the Taji prison was a diversion intended to facilitate the escape of hundreds of prisoners from Abu Ghraib, including al-Qaida leaders who had been sentenced to death.

Abuse of Iraqi prisoners at the hands of U.S. guards at Abu Ghraib became a source of international outrage after photos of the maltreatment became public in 2004. The Abu Ghraib and Taji facilities were operated by American military personnel until U.S. troops left Iraq in December 2011. Since then, prison escapes have been common. [See: PLN, Jan. 2013, p.23].

One year prior to the violent July 2013 jailbreak, al-Qaida’s Iraqi arm, known as the Islamic State of Iraq and the Levant, launched a campaign called “Break the Walls” to free its incarcerated members.

“The first priority in this is releasing Muslim prisoners everywhere, and chasing and eliminating judges and investigators and their ...

Illinois DOC’s Failure to Accommodate Disabled Prisoners States Rehabilitation Act Claim

In separate decisions, the Seventh Circuit Court of Appeals reversed the dismissal of two lawsuits filed by disabled state prisoners, finding that the Illinois Department of Corrections (IDOC) may have violated their rights under the Rehabilitation Act (RA), while skirting claims raised under the Americans with Disabilities Act.

In May 2010, Phillip E. Jaros was sent to the Vandalia Correctional Center (VCC) to serve a two-year sentence for driving on a suspended license.

Medical records indicated that Jaros suffered from several serious physical ailments, including advanced osteoarthritis and vascular necrosis in his right hip. He required a cane to walk, and walking for more than a few minutes made him tired. He suffered chronic, severe pain whether walking, sitting, standing or lying down. Private physicians had recommended a hip replacement.

VCC was not compliant with the Americans with Disabilities Act (ADA), and lacked grab bars for the physically disabled near toilets and in showers and walkways. Two days after his arrival at VCC, Jaros told Teanah Harter, a grievance coordinator, that he required such accommodations. She conceded that VCC was not ADA compliant but told Jaros “to just deal with it,” because the prison’s administrators “did not do” medical ...

Seventh Circuit: Indiana Tolling Provision May Excuse Time-Barred Suit; Rule 12(b)(6) Dismissal Improper

The Seventh Circuit Court of Appeals has reversed a district court’s dismissal of an Indiana prisoner’s lawsuit as being time-barred.

In January 2008, Pendleton Correctional Facility prisoner Danny R. Richards began complaining of abdominal pain and blood in his stool. Prison doctors dismissed his complaints, saying he was fine. They were wrong.

When Richards was finally sent to a specialist nine months later, he was diagnosed with ulcerative colitis. “By then,” however, “it was too late to do anything but excise the colon and attempt some palliation.” Richards underwent three surgeries to remove his colon and construct an ileo-anal pouch.

He filed suit in federal court in December 2010, alleging that prison officials had been deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).

Finding that Richards’ claim had accrued no later than October 2008, the district court dismissed his suit because it was filed after the expiration of the two-year statute of limitations based upon state law.

Richards appealed and the Seventh Circuit reversed on August 9, 2012, finding that Indiana law provides a tolling provision for people who ...

PLN Resolves Censorship Suit Against Oregon County Jail for $51,000 Plus Fees and Costs

In August 2012, Prison Legal News accepted an offer of judgment made by officials in Umatilla County, Oregon to resolve a First Amendment censorship suit filed against the county, the sheriff’s office and several sheriff’s employees.

Approximately two months earlier, PLN had filed suit in federal court alleging ...

After Ten Years, FCC Votes for Prison Phone Reforms!

On August 9, 2013, Federal Communications Commission (FCC) Chairwoman Mignon Clyburn presided over a historic vote by the Commission to reform the prison phone industry, and while doing so publicly acknowledged family members and prisoners’ rights organizations that had influenced the FCC to finally make the “Wright” decision.

Thirteen years ago, the Center for Constitutional Rights co-counseled with the D.C. Prisoners’ Legal Services Project and several other attorneys to file a lawsuit, Wright v. Corrections Corporation of America, U.S.D.C. (D. DC), Case No. 1:00-cv-00293-GK, challenging an exclusive prison phone contract that resulted in high phone rates. The district court referred the case to the FCC, and an initial petition for rulemaking, called the “Wright petition,” was filed in 2003 by lawyers from the D.C. Prisoners’ Legal Services Project and attorneys Steve Seliger and Frank Krogh. An alternative petition for rulemaking was submitted in 2007, seeking to cap prison phone rates at $.20/minute for debit calls and $.25/minute for collect calls. Attorney Lee Petro with the law firm of Drinker Biddle joined the case in 2009.

The lawsuit and subsequent FCC petition resulted after Martha Wright, an 87-year-old blind grandmother who lives in ...

First Circuit: Rejection of Settlement Offer Does Not Justify Defendants’ Attorney Fee Award

On September 7, 2012, the First Circuit Court of Appeals vacated a $59,787.50 attorney fee award to the defendants in a 42 U.S.C. § 1983 complaint, finding that the plaintiffs’ rejection of a settlement offer did not render their claims unreasonable.

Three former employees of the Commonwealth of Puerto Rico filed suit in federal court in 2006, alleging that they were subjected to political discrimination in violation of the U.S. Constitution and the laws and Constitution of Puerto Rico. The plaintiffs sued three direct supervisors, Mayor Jaime H. Barlucea-Maldonado and the Municipality of Adjuntas for damages and declaratory and injunctive relief.

After some individual capacity claims were dismissed, the district court granted the supervisory defendants’ motion for summary judgment, but denied the Mayor’s and municipality’s motions.

On January 19, 2010, the first day of trial, the municipality and Mayor offered to enter into settlement negotiations. Those negotiations ultimately failed and the case proceeded to trial. On January 27, 2010, the jury returned a verdict in favor of the remaining defendants.

The municipality then moved for an attorney fee award pursuant to 42 U.S.C. § 1988(b), claiming that the plaintiffs’ claims were “totally ...

Pennsylvania: Parole Board May Expound on Court-ordered Probation Conditions

On September 7, 2012, the Pennsylvania Supreme Court held that a lower court had incorrectly reversed a probation revocation that was premised on the violation of a probation condition imposed by the Pennsylvania Board of Probation and Parole (Board), rather than by the trial court.

Robert C. Elliott, Jr. was convicted of child sex offenses and sentenced to prison followed by a 5-year term of probation. He was also adjudicated a Sexually Violent Predator under Megan’s Law. While incarcerated, Elliott was turned down for parole four times for failing to complete a sex offender treatment program. Following his release after serving his entire sentence, he met with Board officials who notified him of his probation conditions.

Several weeks later Elliott was observed watching young children in a park. He later “admitted that he regularly went to the park to watch the children and that he was sexually aroused by the girl in the red bathing suit,” though he never had any contact or direct interaction with the children. His probation was revoked and he was sentenced to 5 to 10 years in prison.

Elliott appealed, arguing that the revocation could not stand because the conditions of his probation, which ...

Washington Community Custody, Sex Offender Registration and Release Conditions Modified

On September 13, 2012, the Washington Court of Appeals, Division Three, instructed a lower court to clarify a sex offender’s length of community custody, correct his registration requirement, revise prohibitions regarding dating relationships and strike conditions related to Internet use, mental health treatment and substance abuse treatment.

Jerry D. Sheehan was convicted of molesting his 12-year-old step-daughter and sentenced to 22 years in prison followed by 13 years of community custody. The trial court also imposed post-release crime-related conditions, including prohibiting Sheehan from dating or forming relationships without prior approval and from possessing pornography. The court further ordered Sheehan to participate in mental health and substance abuse treatment and placed restrictions on his Internet usage.

Pursuant to RCW 9.94A.701(9), if an offender’s standard range of confinement, combined with community custody, exceeds the statutory maximum sentence, the community custody period shall be reduced. When “a sentence of confinement and community custody could possibly exceed the statutory maximum for the crime, the appropriate remedy is to remand to the trial court to amend the judgment and sentence.”

The Court of Appeals held that “While Mr. Sheehan’s total term of confinement and community custody does not exceed ...

Seventh Circuit Retires “De Minimis” Standard for Use of Physical Force

The Seventh Circuit Court of Appeals has reversed a district court’s application of a “de minimis harm” standard in dismissing a Wisconsin detainee’s claim that he was sexually groped.

In April 2008, James Washington, Jr. was a pretrial detainee at a Wisconsin jail when a guard, John P. Hively, allegedly fondled his “testicles and penis through [his] clothing” during a pat down, “then while strip searching him fondled his nude testicles for two or three seconds.” Washington filed a federal lawsuit against Hively, who denied the allegations.

The district court granted Hively’s motion for summary judgment. The court correctly recognized that it could not resolve the factual disputes on summary judgment. However, even presuming “that the defendant grabbed the plaintiff’s genitals in a way that was not related to penological interests,” the district court found Hively was entitled to summary judgment because Washington “presented evidence of only de minimis injury” and had “suffered at most an assault and battery.”

Washington appealed and the Seventh Circuit reversed, finding that “the judge’s references to ‘de minimis injury’ and ‘assault and battery’ inappropriately invoked excessive force cases,” which hold “that ‘de minimis uses of force are non-actionable.’”

The ...

New Mexico Prison Doctor Fingered in Lawsuits

Two lawsuits filed in March 2013 seek compensatory and punitive damages against former prison physician Mark E. Walden, GEO Group, Corizon, wardens Erasmo Bravo and Timothy Hatch, and health administrator Sherry Phillips. The suits allege that numerous prisoners were fondled or received intrusive rectal exams by Dr. Walden, a Corizon employee, at the GEO Group-operated Guadalupe County Correctional Facility in Santa Rosa and New Mexico Detention Facility in Clayton.

Suspicions arose due to a substantial increase in unnecessary, prolonged rectal exams, including some conducted without gloves, and Walden’s refusal to have a nurse or other third party present during the exams. In one case, a prisoner with a knee injury received a rectal exam; in another, a prisoner claimed that Walden penetrated his anus using his entire hand.

A third lawsuit was filed against Dr. Walden, GEO Group, Corizon and various prison officials on July 12, 2013, alleging that Walden had “sexually abused at least 25 victims” by performing unnecessary rectal exams or fondling them. The suits remain pending. See: F.M. v. Walden, U.S.D.C. (D. NM), Case No. 1:13-cv-00264-ACT-RHS; R.J. v. The GEO Group, U.S.D.C. (D. NM), Case No. 1 ...

Qualified Immunity for NY Prison Officials who Failed to Award Parole Jail Time

The Second Circuit Court of Appeals held on August 7, 2012 that prison officials who failed to properly award parole jail time (PJT) credits to two prisoners serving concurrent prison and jail sentences were entitled to qualified immunity because it was not clearly established at the time that they were required to award the credits.

The appellate ruling was entered in consolidated lawsuits filed by Terence Sudler and Timothy Batthany. Both were on parole after serving state prison sentences and were arrested for parole violations and new misdemeanor charges. They pleaded guilty to the violations and were sentenced to serve the remainder of their original prison terms.

They also subsequently pleaded guilty to the new misdemeanor offenses. Sudler received a nine-month jail sentence while Batthany received six months. In each case, the judge ordered the jail sentence to be served concurrently with the parole violation sentence.

When their jail sentences expired, Sudler and Batthany were transferred from Rikers Island to the custody of the New York State Department of Corrections and Community Supervision (NY DOCCS). Prison officials determined that neither was entitled to PJT for the time served on their jail sentences.

Both Sudler and Batthany complained. Sudler got nowhere ...

Minnesota: Remedies for Civil Commitments are Limited

The Minnesota Supreme Court has held that a person who is indeterminately civilly committed as a Sexually Dangerous Person (SDP) or Sexual Psychopathic Personality (SPP) may not bring a motion seeking transfer or discharge from their commitment under Minn.R.Civ.P. 60.02, but may bring a Rule 60.02 motion to void a commitment for lack of jurisdiction, ineffective assistance of counsel and other limited claims that do not specifically request a transfer or discharge.

The state Supreme Court issued its ruling in the combined appeals of Peter G. Lonergan, an SDP, and Robert A. Kunshier, an SPP. Both filed a motion with the Dakota County District Court under Rule 60.02, which allows a court to “relieve a party or the party’s legal representative from a final judgment ... order, or proceeding.” The district court denied their motions, which was affirmed by the Court of Appeals.

The first question addressed by the Supreme Court was whether the Commitment Act (Minn. Stat. § 253B (2010)) conflicted or was inconsistent with Rule 60.02. The Act permits civil commitment of 1) the chemically dependent, 2) mentally ill, 3) developmentally disabled, 4) mentally ill and dangerous to the public, 5) an ...

Wrongful Immigration Detention Suit Reinstated by Second Circuit, Dismissed on Remand

Viterbo Liranzo, born in the Dominican Republic, was a U.S. citizen through section 321 of the Immigration and Naturalization Act, which conferred derivative citizenship on children of U.S. citizens. He was required to apply for a certificate of citizenship, but did not do so. Instead, he applied for and received a resident alien card (or “green card”) to remain in the United States. Federal immigration records mistakenly indicated he was a lawful permanent resident.

In 2005, Liranzo was convicted of criminal sale of a controlled substance, a felony, which subjected him to possible deportation. He was detained by immigration agents after he told them he was a citizen of the Dominican Republic, and held in custody for seven months beyond his release date. He was then transported to the Federal Detention Center in Oakdale, Louisiana, where his attorney convinced the government that he was, in fact, a U.S. citizen based on his entitlement to derivative citizenship.

Liranzo exhausted his administrative remedies with the Department of Homeland Security and filed suit in U.S. District Court in New York in 2008, seeking damages for “false arrest and imprisonment” and other tortious conduct. Following two years of discovery, the ...

Ninth Circuit Requires Notice to Pro Se Prisoner Litigants for Motions to Dismiss for Failure to Exhaust

The Ninth Circuit Court of Appeals held on September 19, 2012 that district courts must give pro se prisoners notice of their rights and duties when responding to a motion to dismiss for failure to exhaust administrative remedies.

In 2008, Washington state prisoner Donald L. Stratton was assaulted by a fellow prisoner and required hospitalization. He later filed suit in federal court against prison nurse Dale Brown and a doctor who examined him at the hospital, alleging they had improperly deprived him of pain medication.

The district court granted Brown’s motion to dismiss under Fed.R.Civ.P. 12(b) for failure to exhaust administrative remedies, and Stratton appealed.

The Ninth Circuit first noted that it had held in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) [PLN, April 1999, p.19] “that a pro se prisoner litigant is entitled to ‘fair notice of the requirements and consequences of the summary judgment rule.’”

Because “an unenumerated Fed.R.Civ.P. 12(b) motion to dismiss based on the failure to exhaust administrative remedies is closely analogous to a motion for summary judgment,” the Court of Appeals had previously held in Wyatt v. Terhune, 315 F ...

California Supreme Court: Cutting Through Fences May Not Constitute Attempt to Escape

In a July 2012 unpublished decision, the California Supreme Court upheld a published opinion of the Court of Appeal dismissing the “three strikes” conviction of a prisoner, Robin Bailey, who was charged with escaping from the Correctional Training Facility in Soledad in 2008.

Both courts found the trial evidence insufficient as a matter of law to support a conviction for escape from a state prison, where the record established merely that Bailey, while cutting through four fences, had managed only to “saw his way further into the facility” but did not breach a wall or perimeter fence.

The question reviewed by the Supreme Court was whether, under the circumstances presented, an appellate court could reduce Bailey’s conviction from one of escape to attempted escape. The Supreme Court agreed with the appellate court that it could not do so because, counter-intuitively, attempt to escape is not a lesser included offense of escape; the former contains a specific intent element not present in the latter, as the Court discussed at length.

The appellate court had held that “[a]n inmate who remains within the bounds of the prison has not escaped that prison even if he has broken out of his ...

Seventh Circuit Upholds CCA’s Victory in Indiana Jail Conditions Suit

On September 14, 2012, the Seventh Circuit Court of Appeals affirmed a district court’s class certification and summary judgment orders in a jail conditions case involving the Marion County Correctional Center (MCCC) in Indianapolis, Indiana, also known as the Marion County Jail II, operated by Corrections Corporation of America (CCA).

In 2008, MCCC prisoners were subjected to overcrowded living conditions in which upwards of 150 prisoners were forced to share a single toilet and sink; deprived of food and water for extended periods of time; housed in trash, mold and insect-infested living conditions; and required to reveal confidential medical information in the presence of other prisoners.

MCCC prisoners Alan Kress and Randy Carr filed suit in April 2008 alleging inadequate medical care and inhumane living conditions. The federal district court granted their motion for class certification and named them as class representatives, but dismissed several claims that failed to satisfy class certification requirements. The court subsequently granted CCA’s motion for summary judgment on the remaining claims and dismissed the case in 2011. [See: PLN, May 2012, p.46].

On appeal, the Seventh Circuit first upheld the district court’s finding that the plaintiffs had failed to satisfy the ...

California: Victim’s Post-Death Economic Losses Not Subject to Mandatory Restitution

The California Supreme Court has reversed a restitution order assessed against a defendant who, while driving intoxicated, killed another driver in a freeway collision. The Court held that 1) the estate of the accident victim (who died without heirs) was not itself a “direct victim” of a crime; 2) the executor of the decedent’s estate is nonetheless entitled to collect mandatory restitution on the decedent’s behalf for economic losses the decedent personally incurred before death as an actual victim of the defendant’s criminal conduct; but 3) post-death economic losses are not subject to mandatory restitution.

The Supreme Court reached this conclusion notwithstanding the “Victims’ Bill of Rights” incorporated in California’s Constitution, as amended by Proposition 9 (Marsy’s Law), which specifies that a crime victim is entitled to restitution and defines “victim” as including “a lawful representative of a crime victim who is deceased.”

After being convicted of gross vehicular manslaughter while intoxicated and sentenced to six years in prison, Paul Dean Runyan was ordered to pay restitution totaling $446,486 to the estate of Donald Benge, the other driver he killed in April 2007. The restitution amount was assessed pursuant to the mandatory restitution statute ...

Second Circuit: No Social Security Payments for Prisoners

Last year, the Second Circuit Court of Appeals held that the “No Social Security Benefits for Prisoners Act (the Act), Pub. L. No. 111-115, 123 Stat. 3029 (2009), bars the Social Security Administration (SSA) from making any payments to incarcerated individuals covered by the Act, “regardless of when the underlying obligation to pay the individual arose.”

In April 2002, Felipe O. Fowlkes filed a pro se complaint in federal district court in New York against two SSA officials and an SSA administrative law judge. He alleged that his Supplemental Social Security (SSI) benefits had been improperly suspended based on the erroneous conclusion that he was a fugitive felon, and the suspension constituted a violation of his due process rights.

The district court granted the defendants’ motion to dismiss. The Second Circuit affirmed the dismissal of Fowlkes’ due process claim, but remanded the case because the lower court should have construed the remainder of his complaint as a petition for review of an adverse SSA determination. The Court of Appeals held that Fowlkes’ SSI benefits could only be suspended when a warrant or order issues from a court on a finding that he had fled or was fleeing from justice, which ...

News in Brief

Arizona: “The debt one pays to society for having engaged in criminal activity does not include being subjected to sexual assault by prison staff,” said Acting U.S. Attorney Ann Birmingham Scheel. Two prisoners at FCI Phoenix were subjected to such sexual assaults, and on June 18, 2012, a federal grand jury indicted former prison employee Jose “Joe” Martinez, 48, on five counts of aggravated sexual abuse and eight counts of sexual abuse of a ward. He was found guilty by a federal jury of six counts of sexual abuse of a ward on May 28, 2013 and awaits sentencing.

California: In March 2013, California parole officials caught up with a parolee who had eluded them for over three decades. Richard Bradford had been living under the name of James Edward Heard when he was finally captured; a search of his home uncovered evidence of both names. Bradford had been sentenced to life for first-degree murder in 1971, was paroled in 1978 and absconded from parole supervision in 1980. He was on the run for 32 years, and owned a drug rehab facility and other properties in the Pasadena area at the time of his arrest.

California: Steve Whitmore, a ...


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