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Prison Legal News: September, 2013

Issue PDF
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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...