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Prisoner Education Guide

Prison Legal News: October, 2014

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Volume 25, Number 10

In this issue:

  1. In Washington State Prisons, Negligent Health Care Turns Illness into a Death Sentence (p 1)
  2. $750,000 Settlement for Washington State Prisoner’s Wrongful Death (p 8)
  3. Texas Court Finds CCA Subject to State’s Public Information Act, Awards Attorney Fees (p 9)
  4. From the Editor (p 10)
  5. Women in Solitary Confinement: “The Isolation Degenerates Us into Madness“ (p 12)
  6. Tennessee Senate Judiciary Committee Holds Hearings on Criminal Justice Reform (p 16)
  7. How the Courts View ACA Accreditation (p 18)
  8. Leading with Conviction: JustLeadershipUSA (p 22)
  9. Washington State: Injunction Entered Against Lewis County in PLN Censorship Suit (p 23)
  10. Drug Courts Partner with Pharmaceutical Company to Combat Heroin, Alcohol Abuse (p 24)
  11. Class-Action Suit Claiming Inadequate Medical Care at Virginia Prison Set for Trial (p 26)
  12. Prison and Jail Phone Reforms Needed in New Jersey (p 28)
  13. Pretrial Detainee’s First Amendment Retaliation Claim Survives Summary Judgment (p 28)
  14. Alaska Filing Fee Statute Denies Prisoners Court Access (p 30)
  15. California: Federal Judge Certifies Class-Action Over SHU Placement, Conditions (p 30)
  16. $8.15 Million Jury Award for Prisoner’s Death at New York Jail (p 32)
  17. Tenth Circuit Holds “Consensual” Sex Defeats Prisoner’s Eighth Amendment Claim (p 32)
  18. Jail Video Visitation Proposal Considered in Dallas County, Texas (p 34)
  19. Colorado Law Grants Immunity to Law Enforcement Officers Transporting Juveniles (p 34)
  20. California Exhaustion Requirement Extends to Independent Contractors (p 35)
  21. Former Wyoming Probation Officer Receives, Violates Probation (p 36)
  22. Ninth Circuit: Exhaustion Prior to Amended Complaint Satisfies PLRA (p 36)
  23. Fifth Circuit Holds Louisiana Commutation Changes Not Ex Post Facto (p 38)
  24. Second Circuit: Spraying with Feces Not De Minimis Injury; $7,000 Settlement After Remand (p 38)
  25. Ninth Circuit Revives Ad Seg 24-Hour Lighting Claim (p 40)
  26. Seventh Circuit Extends Appeal Filing Deadline for Prisoner Misled by Court Clerk (p 41)
  27. Seventh Circuit Upholds Dismissal of Illinois Booking Fee Challenge (p 42)
  28. Colorado: Sentencing Court May Override Sexually Violent Predator Risk Assessment Score (p 42)
  29. ICE Implements New Directive to Limit Solitary Confinement (p 44)
  30. “Ban the Box” Movement Spreads Nationwide (p 46)
  31. Pennsylvania Activists Arrested for Protesting Construction of New Prison Complex (p 48)
  32. California Prison Healthcare Costs Soar Under Federal Receiver (p 50)
  33. Fifth Circuit Declares SORNA Unconstitutional in Certain Cases, Reversed by Supreme Court (p 50)
  34. Probe Reveals Corruption at Pennsylvania Jail (p 52)
  35. Nebraska DOC Obstructing Efforts to Modify Prisoners’ Child Support Payments (p 52)
  36. New York District Attorney Admits Lying About Acting in Porn Movies (p 53)
  37. Investigation Uncovers Lost Graves at Former Florida Juvenile Facility (p 54)
  38. News in Brief (p 56)

In Washington State Prisons, Negligent Health Care Turns Illness into a Death Sentence

In Washington State Prisons, Negligent Health Care Turns Illness into a Death Sentence

Ricardo Cruz Mejia went to prison a murderer, he left a victim.

by Rick Anderson

Ricardo Cruz Mejia’s final days began with a stomach problem. It was October 2010. After the 26-year-old Walla Walla State Penitentiary prisoner discovered blood in his stool, he signed in at the prison infirmary. A test and exam turned up a severely inflamed colon. The onetime Latino gang member from Skagit County, doing 34 years for seven felonies including murder, was given hydrocortisone enemas and tabs of prednisone, used to treat inflammation. The prison medical staff also gave him sulfasalazine for abdominal pain.

In November, Mejia, a stocky, tattooed prisoner with a closely shaved head, began to experience other symptoms – headaches, sore throat, then vomiting. He also had begun to develop a rash, for which he was given penicillin, though it didn’t seem to help.

In the ensuing days, he became a familiar figure to infirmary nurses. From December through the first week of January 2011, he showed up at the infirmary 14 times. Nurses doled out a topical cortico-steroid for skin inflammation and tried other drugs to ease his symptoms ...

$750,000 Settlement for Washington State Prisoner’s Wrongful Death

$750,000 Settlement for Washington State Prisoner’s Wrongful Death

by Carrie Wilkinson

Although Prison Legal News and its parent organization, the Human Rights Defense Center (HRDC), are best known for litigation involving censorship by prison and jail officials, HRDC also co-counsels select other cases, mainly involving wrongful deaths on behalf ...

Texas Court Finds CCA Subject to State’s Public Information Act, Awards Attorney Fees

Texas Court Finds CCA Subject to State’s Public Information Act, Awards Attorney Fees

On September 15, 2014, a Travis County District Court entered a final judgment that found Corrections Corporation of America (CCA), the nation’s largest for-profit prison company, is a “governmental body” for purposes of the Texas Public Information ...

From the Editor

From the Editor

by Paul Wright

This month’s cover story about the Washington Department of Corrections killing prisoner Ricardo Mejia through medical neglect is in many ways an old one. Over the past 24 years, PLN has run hundreds of articles about prisons and jails murdering prisoners through medical and mental health neglect, malpractice and deliberate indifference.

What is different about this story is that attorneys from the Human Rights Defense Center – the organization that publishes Prison Legal News – represented Mr. Mejia’s family and estate in obtaining some modicum of justice following his death, with the goal of trying to ensure it does not happen to other prisoners.

When PLN was founded in 1990, one of our goals was to be able to conduct public interest litigation involving the criminal justice system. Between 1993 and 2009, PLN filed a number of censorship and public records lawsuits around the country, many involving cutting-edge legal issues, which helped to ensure that the right of prisoners and publishers to send and receive information was respected, and brought a modest amount of transparency to the secrecy of government institutions.

In 2009 we created our litigation project, which allowed us to employ our ...

Women in Solitary Confinement: “The Isolation Degenerates Us into Madness“

Women in Solitary Confinement: “The Isolation Degenerates Us into Madness“

by Victoria Law

A mass prisoner hunger strike rocked California’s prison system last year, drawing international attention to the extensive use of solitary confinement in the United States. Increasingly, solitary is finding its way into the mainstream media and onto activist agendas. Nearly all of the attention, however, has focused on solitary confinement in men’s prisons; much less is known about the conditions and experiences inside women’s prisons.

During legislative hearing on solitary confinement in California in October 2013, lawmakers asked prison officials about women in solitary confinement. Officials from the California Department of Corrections and Rehabilitation (CDCR) stated that 74 women were held in the Security Housing Unit at the California Institution for Women (CIW) and a handful of women were awaiting transfer from the Central California Women’s Facility (CCWF). CDCR does not separate people in the SHU with mental illness from those without mental illness. CDCR officials did not address the number of people in the Administrative Segregation (or Ad Seg) Unit.

According to CDCR statistics, as of September 2013, 107 women were held in Ad Seg at CCWF, which has a budgeted capacity of 38. The average ...

Tennessee Senate Judiciary Committee Holds Hearings on Criminal Justice Reform

Tennessee Senate Judiciary Committee Holds Hearings on Criminal Justice Reform

On September 15 and 16, 2014, while Tennessee’s General Assembly was out of session, the Senate Judiciary Committee held hearings on criminal justice reform – the first time a legislative body in the state has comprehensively addressed that topic for at least a decade. The hearings were chaired by Senator Brian Kelsey, and speakers testified on issues ranging from the history of sentencing in Tennessee to the state’s growing prison population, high crime rate and potential solutions to those problems.

According to the FBI, Tennessee had the highest violent crime rate in the nation based on 2012 statistics.

Criminal defense attorney David Raybin, a former district attorney and former member of the Tennessee Sentencing Commission (abolished in 1995), who helped develop Tennessee’s criminal sentencing statutes, testified about the history of sentencing laws in the state, including the Class X laws and 1989 Sentencing Reform Act. He noted that the Sentencing Commission had made a number of recommendations that were ignored by lawmakers.

Others who testified included officials from the district attorney’s office and attorney general’s office. The DA’s office complained that criminal sentences in Tennessee mislead the public and victims ...

How the Courts View ACA Accreditation

How the Courts View ACA Accreditation

by Alex Friedmann

The American Correctional Association (ACA), a private non-profit organization composed mostly of current and former corrections officials, provides accreditation to prisons, jails and other detention facilities.

According to the ACA, “Accreditation is a system of verification that correctional agencies/facilities comply with national standards promulgated by the American Correctional Association. Accreditation is achieved through a series of reviews, evaluations, audits and hearings.”

To achieve accreditation a facility must comply with 100% of applicable mandatory standards and at least 90% of applicable non-mandatory standards. Under some circumstances, the ACA may waive certain accreditation standards. There are different standards for different types of facilities, such as adult correctional institutions, jails, juvenile detention facilities and boot camp programs.

The standards are established by the ACA with no oversight by government agencies, and the organization basically sells accreditation by charging fees ranging from $8,100 to $19,500, depending on the number of days and auditors involved and the number of facilities being accredited. [See, e.g.: PLN, Aug. 2014, p.24].

The ACA relies heavily on such fees; it reported receiving more than $4.5 million in accreditation fees in 2011 – almost ...

Leading with Conviction: JustLeadershipUSA

Leading with Conviction: JustLeadershipUSA

by Glenn Martin and Sasha Graham

For decades, advocates and scholars alike have publicly decried the crippling financial and human costs of mass incarceration. Today their calls for reform are amplified by an emerging bipartisan consensus that current incarceration trends are unsustainable, ineffective and increasingly harmful to individuals, families, communities and society as a whole.

Several states, including New York, New Jersey and California, have prioritized criminal justice reforms intended to reduce excessive criminalization and incarceration.1 Last year, 300 bills were introduced on the state level that promoted smarter, healthier approaches to crime prevention and reductions in our overreliance on incarceration.2 Yet despite this abundance of political will and a growing legion of zealous advocates, we have yet to realize significant and widespread reform of our criminal justice system. In fact, recent successes notwithstanding, the justice system continues to operate at full throttle, consuming millions of individuals, countless families and entire communities.

The problem is that for far too long the individuals and communities directly impacted by mass incarceration have been glaringly absent – or worse, omitted – from the conversation. Ironically, in a movement established in their name, the currently and formerly incarcerated ...

Washington State: Injunction Entered Against Lewis County in PLN Censorship Suit

Washington State: Injunction Entered Against Lewis County in PLN Censorship Suit

On September 10, 2014 a federal judge entered a preliminary injunction against Lewis County, Washington in a lawsuit challenging a postcard-only mail policy at the county jail.

The lawsuit, filed by Prison Legal News in April 2014, alleged that the jail’s policy of restricting incoming and outgoing correspondence to postcards violated PLN’s rights under the First Amendment. Further, the complaint argued that the jail’s failure to provide notice to the sender when mail was censored or rejected violated the due process clause of the Fourteenth Amendment.

While county officials claimed the jail had changed its mail policy after the suit was filed, “and is now allowing news sources to distribute both publications and other forms of correspondence to prisoners,” U.S. Magistrate Judge J. Richard Creatura wrote there was “substantial evidence to believe that this policy has not yet been adopted.” Further, “First Amendment rights are too important to be subject to such arbitrariness,” he added.

Between September and October 2013, pursuant to the jail’s postcard-only policy, jailers had rejected dozens of letters sent to prisoners by PLN, including subscription brochures, book catalogs and copies of ...

Drug Courts Partner with Pharmaceutical Company to Combat Heroin, Alcohol Abuse

Drug Courts Partner with Pharmaceutical Company to Combat Heroin, Alcohol Abuse

The 406th District Drug Court in Webb County, Texas has turned to a new approach for breaking the cycle of addiction related to heroin, opiate and alcohol abuse: The court formed a partnership with Irish pharmaceutical company Alkermes plc to provide a drug called Vivitrol to drug court participants.

Vivitrol is an intramuscular medication delivered once-monthly by injection. It works to block the production of endorphins, which in turn prevents the brain from producing surges of dopamine – the body’s pleasure hormone. Essentially, Vivitrol prevents a person from getting high or drunk. As a result, if a heroin addict shoots up or an alcoholic takes a drink, he or she won’t feel anything pleasurable – although Vivitrol is only meant to be used after a person has detoxed or stopped drinking.

A primary benefit of the drug compared to other medical treatments, such as Suboxone and methadone, is that Vivitrol is not addictive.

One dose of Vivitrol lasts 30 days, though the drug is expensive; the cost can range from $800 to $1,200 for a single shot. Alkermes agreed to a three-year partnership with Webb County in ...

Class-Action Suit Claiming Inadequate Medical Care at Virginia Prison Set for Trial

Class-Action Suit Claiming Inadequate Medical Care at Virginia Prison Set for Trial

A December 2014 trial date has been scheduled in a class-action federal lawsuit that could determine the future of health care for prisoners at the Fluvanna Correctional Center for Women (FCCW) in Troy, Virginia.

The suit was filed in July 2012 on behalf of five women incarcerated at Fluvanna, and names as defendants the Virginia Department of Corrections (VDOC), Armor Correctional Health Services and both VDOC and Armor officials for failing to provide constitutionally adequate medical care at FCCW. The Legal Aid Justice Center (LAJC) in Charlottesville, Virginia; the Washington, D.C. law firm of Wiley Rein, LLP and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs are jointly representing the plaintiffs – Cynthia B. Scott, Bobinette D. Fearce, Patricia Knight, Marguerite Richardson and Rebecca L. Scott.

On July 15, 2013, the district court held that Corizon Health, Inc., of Brentwood, Tennessee, which was the contract provider for medical care in VDOC facilities prior to Armor, and which outbid Armor in May 2013 to resume its role as Virginia’s correctional health care provider, could be added as a defendant.

The suit does not seek monetary damages ...

Prison and Jail Phone Reforms Needed in New Jersey

Prison and Jail Phone Reforms Needed in New Jersey

by Karina Wilkinson

Two prison phone service providers, Global Tel*Link and Securus, continue to overcharge prisoners and their families for calls made from prisons and jails in New Jersey. While federal regulations capped interstate (long distance) calls from correctional facilities beginning in February 2014, the State of New Jersey has allowed a grave injustice to continue by permitting companies to charge high rates and allowing county jails to accept commissions on in-state calls ranging from 50% to 70%. Such commissions amount to legal “kickbacks” that let phone companies share profits with state and local governments at the expense of those who can least afford it.

Prior to the Federal Communication Commission’s order capping interstate phone rates, charges of $.33 per minute from New Jersey state prisons and as high as $15.00 for 15-minute calls from county jails have translated to hundreds and even thousands of dollars of debt for prisoners and their families. New Jersey Advocates for Immigrant Detainees* and other advocacy groups have received reports of parents forgoing calls with their children because they couldn’t afford the cost.

“It is absolutely obscene that a private vendor can charge ...

Pretrial Detainee’s First Amendment Retaliation Claim Survives Summary Judgment

Pretrial Detainee’s First Amendment Retaliation Claim Survives Summary Judgment

by David M. Reutter

In a December 26, 2013 decision, the Eighth Circuit Court of Appeals reversed a district court’s grant of summary judgment, holding that a former pretrial detainee had presented sufficient evidence that he was subjected to retaliation for filing grievances and a lawsuit.

Randy G. Spencer filed suit alleging a First Amendment claim related to his stay at the Jackson County Detention Center (JCDC) in Missouri. When he entered the JCDC in January 2005 he faced multiple charges, including tampering with a motor vehicle, assaulting a police officer, theft and resisting arrest.

Despite those charges and a prior criminal record, Spencer was approved for and assigned to the Inmate Worker Program (IWP), also known as the trustee program. The IWP not only provided special privileges such as late nights, contact visits, movies, sodas, popcorn and extra food for kitchen workers, it also paid detainees for each shift worked.

Spencer was commended by the program’s supervisor, Margo Carter. He was reentered in the IWP after completing a substance abuse treatment program, and remained in the IWP until he was released from jail. In 2006, Spencer filed a lawsuit against ...

Alaska Filing Fee Statute Denies Prisoners Court Access

Alaska Filing Fee Statute Denies Prisoners Court Access

by Mark Wilson

In December 6, 2013, the Alaska Supreme Court held that barring an indigent prisoner from filing an appeal due to inability to pay the filing fee deprived him of his fundamental right of access to the courts.

In May 2011, Alaska prisoner James Barber was found in violation of prison rules and placed in segregation. He appealed the violation to the superior court, requesting a partial filing fee exemption under AS 09.19.010 due to his indigency. The superior court granted a partial exemption and reduced the filing fee to $33.86, to be paid within 30 days.

AS 09.19.010 specifies that prisoners “must pay a full court filing fee before commencing litigation against the State. But the statute allows a court to exempt part of the filing fee if the prisoner demonstrates exceptional circumstances.”

In September 2011, Barber was found guilty of a second disciplinary violation and again put in segregation. He also attempted to challenge that order in superior court, seeking a partial filing fee exemption due to his inability to pay. The superior court again set the filing fee at $33.86 ...

California: Federal Judge Certifies Class-Action Over SHU Placement, Conditions

California: Federal Judge Certifies Class-Action Over SHU Placement, Conditions

by Derek Gilna

California state prison officials could be forgiven for complaining that the federal courts spend a lot of time monitoring their activities, but the facts indicate that such attention is warranted. California’s prison system, already singled out by the U.S. Supreme Court for overcrowding and court-ordered population reductions, is currently under additional scrutiny for constitutional violations in the Security Housing Unit (SHU) at Pelican Bay State Prison.

A lawsuit filed by the Center for Constitutional Rights on behalf of ten prisoners who have spent at least ten years in the SHU at Pelican Bay alleges that prolonged SHU confinement constitutes cruel and inhumane punishment.

According to Alexis Agathocleous, one of the attorneys representing the plaintiffs, “Since their 2011 hunger strikes, hundreds of prisoners at the Pelican Bay SHU – and across California – have stood together in solidarity to protest inhumane conditions and broken policies they’ve been subjected to for decades. This case has always been about the constitutional violations suffered by all prisoners at the SHU....”

The federal judge hearing the case of Ashker v. Brown apparently agreed, and on June 2, 2014 certified the lawsuit ...

$8.15 Million Jury Award for Prisoner’s Death at New York Jail

$8.15 Million Jury Award for Prisoner’s Death at New York Jail

by David Reutter

A New York City jury awarded $8.15 million to the estate of a prisoner who died after being denied access to medical care.

While incarcerated in 1996 at the Vernon C. Bain Correctional Center ...

Tenth Circuit Holds “Consensual” Sex Defeats Prisoner’s Eighth Amendment Claim

Tenth Circuit Holds “Consensual” Sex Defeats Prisoner’s Eighth Amendment Claim

by Mark Wilson

The Tenth Circuit Court of Appeals has held that a female prisoner’s “consensual” sex with two guards did not violate the Eighth Amendment.

Stacey Graham was housed in solitary confinement at a jail in Logan County, Oklahoma. Between July and October 2009, jail guard Rahmel Jefferies began talking to Graham over the intercom and their discussions soon became sexual. They also exchanged sexually explicit notes. “I look forward to fucking you,” Graham wrote in one note. “Damn, just the thought of that gets my nipples hard. I’m such a nympho!” She also flashed her breasts at Jefferies “for the hell of it.”

On October 7, 2009, another jailer, Alexander Mendez, called Graham over the intercom, “asked about her sexual fantasies” and told her about his. “She responded that her fantasy was to ‘be with two men at the same time.’... He asked who she would like him to bring. She said, ‘Bring Jefferies.’” Graham then agreed to allow Mendez to see her naked when he came by her cell.

During the early morning hours of October 9, 2009, Jefferies and Mendez entered ...

Jail Video Visitation Proposal Considered in Dallas County, Texas

Jail Video Visitation Proposal Considered in Dallas County, Texa

On September 9, 2014, the Dallas County Commissioners Court unanimously rejected a proposal that would have ended all face-to-face visits with prisoners at the Dallas County Jail. The Commissioners Court had been considering bids to equip the jail with a video visitation system. Prison phone service provider Securus Technologies appeared to have the edge on the contract; however, when the company submitted a plan that included the elimination of in-person visits at the jail, it met vigorous opposition from County Judge Clay Jenkins.

Judge Jenkins’ outspoken rejection of the plan was a rallying cry for a number of prisoners’ rights advocates, including Texas CURE, former state Rep. Terri Hodge and Richard Miles, a former Texas prisoner who was exonerated following a wrongful murder conviction. The Commissioners Court also received hundreds of emails and a petition with over 2,000 signatures objecting to Securus’ video visitation plan.

The company’s proposal included charging $10 for each 20-minute visit, and tried to sweeten the deal by offering the county a 25% commission on video visitation revenue. The Commissioners Court initially decided to table the issue and allow previous bidders to submit new bids based ...

Colorado Law Grants Immunity to Law Enforcement Officers Transporting Juveniles

Colorado Law Grants Immunity to Law Enforcement Officers Transporting Juveniles

by David M. Reutter

The Colorado Supreme Court held on January 13, 2014 that “allegations of negligence alone are not sufficient to overcome the statutory grant of immunity and the presumption of good faith afforded to law enforcement officers” under section 19-2-508(7), C.R.S. (2013) – a statute that pertains to officers who transport juveniles

The Court’s ruling vacated a trial court’s order denying a motion to dismiss on immunity grounds in a lawsuit filed against the Jefferson County Sheriff and Deputy John Hodges. While transporting juveniles Daniel Larson and Dylan Bucy on July 28, 2010 from a court hearing to the Mount View Youth Services Center, a collision occurred between the transport van and a car that failed to yield when Deputy Hodges pulled into an intersection.

Larson and Bucy were injured. They filed suit, alleging that Hodges had acted negligently by failing to secure their seatbelts while they were handcuffed and by driving into the intersection without ensuring it was clear. After the trial court denied the defendants’ motion to dismiss, the Colorado Supreme Court granted review.

Under section 19-2-508(7), it “shall be presumed” that ...

California Exhaustion Requirement Extends to Independent Contractors

California Exhaustion Requirement Extends to Independent Contractors

by Mark Wilson

On December 6, 2013, the California Court of Appeal, Third Appellate District, held that prisoners must exhaust administrative remedies before suing independent contractors employed by the prison system.

California prisoner Ira Don Parthemore was examined by Dr. Peter R. Col, an optometrist under contract at the Mule Creek State Prison.

Col diagnosed Parthemore with cataracts in both eyes and advised him that he would need surgery. Col later re-examined him and concluded surgery was not necessary. Col prepared a transfer request, incorrectly identifying Parthemore as being “legally blind.” He was then transferred to a medical facility.

A different optometrist examined Parthemore and found that he “never should have been diagnosed as legally blind or transferred to the medical facility.”

Parthemore fell while at the medical facility, breaking his right kneecap and several bones in his left shoulder. After he recovered, he was sent back to Mule Creek.

Parthemore sued Dr. Col in state court for negligence, alleging that the injuries from his fall were caused by Col’s refusal to issue a new eyeglasses prescription. He also alleged that Col intentionally falsified official medical records, resulting in his unnecessary ...

Former Wyoming Probation Officer Receives, Violates Probation

Former Wyoming Probation Officer Receives, Violates Probation

by Derek Gilna

A former Wyoming Department of Corrections probation officer was placed on probation herself following her conviction on drug and theft charges.

Ruby Maddox, 36, was enrolled in a rehabilitation center to address her addiction to prescription medication as part of a plea agreement after she admitted to stealing drugs from probationers she was responsible for supervising. She was also charged with stealing a puppy from a probationer and taking money from a charity event.

Maddox received probation plus a suspended prison sentence of three-to-five years in April 2013 after pleading guilty to one felony count of possession of a controlled substance and four counts of petty larceny.

During her initial three-year term of supervised probation, Maddox was ordered to complete a program at the Casper Re-Entry Center. Maddox has Graves’ disease, an autoimmune disorder; she was admitted in mid-2013 to Wyoming Recovery for addiction to painkillers.

“A person can get in trouble with it before you know it,” her attorney, Tom Smith, said about his client’s abuse of prescription drugs.

Maddox was initially arrested in October 2012 following an investigation by the Natrona County Sheriff’s Office and the Wyoming ...

Ninth Circuit: Exhaustion Prior to Amended Complaint Satisfies PLRA

Ninth Circuit: Exhaustion Prior to Amended Complaint Satisfies PLRA

by Mark Wilson

On January 14, 2014, the Ninth Circuit Court of Appeals held that claims raised in an amended complaint satisfy administrative exhaustion requirements under the Prison Litigation Reform Act (PLRA) if they are exhausted before the amended complaint is filed.

On December 4, 2007, Arizona prisoner Erineo Cano filed suit alleging that prison officials were deliberately indifferent to his mental illness and risk of committing suicide. He then moved to submit a first amended complaint, asserting religious diet and court access claims that arose before the original complaint was filed.

Although Cano had exhausted the new claims before seeking to file his amended complaint, prison officials moved to dismiss them, arguing that the PLRA’s exhaustion requirement, 42 U.S.C. § 1997e(a), requires exhaustion of all claims before an action is filed. The district court agreed, and since Cano did not exhaust until after the initial complaint was filed, his amended claims were dismissed.

The Ninth Circuit reversed, noting it had recently held “that a prisoner may file an amended complaint and add new claims where the additional cause of action arose after the initial filing, as long ...

Fifth Circuit Holds Louisiana Commutation Changes Not Ex Post Facto

Fifth Circuit Holds Louisiana Commutation Changes Not Ex Post Facto

by Matt Clarke

In an opinion filed May 21, 2013, the Fifth Circuit Court of Appeals held that changes to commutation laws and rules in Louisiana, which gave the pardons board the authority to deny a hearing on commutation and increased the amount of time before a prisoner could reapply for commutation, did not violate the constitutional prohibition against ex post facto laws.

Robert Howard, a Louisiana state prisoner sentenced to life in 1968, has served over forty years. Life-sentenced prisoners in Louisiana are not eligible for parole; to become eligible, a prisoner serving life must first have his sentence commuted to a fixed number of years.

At the time of Howard’s offense, the rules of the Board of Pardons allowed a prisoner to reapply for a pardon or commutation one year after the previous board action. At that time, the governor could grant commutations based upon the recommendation of two of the following officials: the lieutenant governor, attorney general and trial court judge.

A revised state constitution enacted in 1974 created a new Board of Pardons; the governor could only grant pardons upon the board’s recommendation. Later changes in ...

Second Circuit: Spraying with Feces Not De Minimis Injury; $7,000 Settlement After Remand

Second Circuit: Spraying with Feces Not De Minimis Injury; $7,000 Settlement After Remand

by Mark Wilson

The Second Circuit Court of Appeals held on December 20, 2013 that spraying a prisoner with a mixture of feces, vinegar and oil is not a de minimis injury

New York state prisoner John Hogan was confined at the Attica Correctional Facility on February 14, 2009 when he claimed three guards with their faces concealed by brown paper bags sprayed vinegar, feces and machine oil on his body and in his mouth, eyes and nose in retaliation for his having reported several other staff assaults. As a result, he suffered recurring eye and skin problems plus significant psychological harm.

On May 5, 2009, Hogan filed suit in federal court against several named and John Doe guards. Despite numerous discovery and public records requests over a three-year period, he was unable to identify the guards who sprayed him.

Pursuant to FRCP 12(b)(6) and 12(c), the defendants moved to dismiss Hogan’s claims against only the named guards in his complaint. The Attorney General’s office expressly stated the motion was not brought on behalf of any John Doe defendants. Nevertheless, the district court ...

Ninth Circuit Revives Ad Seg 24-Hour Lighting Claim

Ninth Circuit Revives Ad Seg 24-Hour Lighting Claim

by Mark Wilson

On January 16, 2014, the Ninth CircuitCourt of Appeals reversed a summary judgment order dismissing a prisoner’s claim related to 24-hour lighting in a segregation cell.

While incarcerated at the Airway Heights Corrections Center, Washington prisoner Neil Grenning was placed in administrative segregation (ad seg) for thirteen days “pending investigation” of his alleged involvement in a fight. Ad seg cells are lit by three four-foot-long fluorescent light tubes. Prisoners can turn off two of the tubes, but one remains illuminated at all times.

Grenning stated in a grievance that he could not sleep and suffered headaches due to the constant lighting. When prison officials refused his request to replace the tube with something that produced less light, he filed suit. He alleged that the continuous lighting violated the Eighth Amendment because “the light was so bright he could not sleep, even with ‘four layers of towel wrapped around his eyes.’” Grenning also claimed “that the lighting gave him ‘recurring migraine headaches’ and that he could not distinguish between night and day in the cell.” He said the light caused him pain and disorientation.

The district court granted ...

Seventh Circuit Extends Appeal Filing Deadline for Prisoner Misled by Court Clerk

Seventh Circuit Extends Appeal Filing Deadline for Prisoner Misled by Court Clerk

by Matt Clarke

In a well-crafted opinion delivered on August 8, 2013, the Seventh Circuit Court of Appeals held that a prisoner who was misled by a court clerk regarding the status of his habeas corpus petition should be allowed to appeal the district court’s ruling despite his notice of appeal being filed more than two years after the petition was decided.

Michael Carter, an Illinois state prisoner, filed a petition for writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254. The district court denied the petition on February 10, 2011 but failed to make a separate judgment or send a copy of the opinion to Carter. On December 5, 2011, Carter wrote to the court clerk inquiring about the status of his petition. The clerk responded that no action had been taken and he would be promptly notified by mail when an order was entered. About a year later, Carter contacted the clerk again. This time he was informed of the judgment in a letter received on March 22, 2013.

Carter filed a notice of appeal less than a month later ...

Seventh Circuit Upholds Dismissal of Illinois Booking Fee Challenge

Seventh Circuit Upholds Dismissal of Illinois Booking Fee Challenge

by Mark Wilson

On January 2014, the Seventh Circuit Court of Appeals upheld the dismissal of a challenge to a jail’s booking fee policy.

The Village of Woodridge, Illinois imposes a $30 booking fee on any person who is arrested and taken into custody. The fee is collected without any hearing, or
opportunity to challenge the deprivation or seek reimbursement.

On January 8, 2011, Jerry G. Markadonatos was arrested and booked into jail. He paid the $30 booking fee and was given a receipt, but was not afforded a hearing or any other opportunity to challenge the fee.

After Markadonatos successfully completed a period of supervised release, he was adjudicated “not guilty.” Despite this favorable resolution the booking fee was not refunded and he was denied an opportunity to seek reimbursement.

Markadonatos filed suit on behalf of himself and all arrestees who were charged the booking fee, alleging that the fee violates procedural and substantive due process. The district court dismissed the action for failure to state a claim.

The Seventh Circuit affirmed. Applying the balancing test in Matthews v. Eldridge, 424 U.S. 319 (1976), the Court of Appeals ...

Colorado: Sentencing Court May Override Sexually Violent Predator Risk Assessment Score

Colorado: Sentencing Court May Override Sexually Violent Predator Risk Assessment Score

by Matt Clarke

The Colorado Supreme Court has held that a sentencing court may designate a person convicted of a sexual offense a Sexually Violent Predator (SVP) even if a risk assessment instrument (screening instrument) indicates that the person is unlikely to commit another sex offense. However, the sentencing court must make specific findings on the record to demonstrate the necessity of the SVP designation.

Brandon David Allen, a Colorado state prisoner, pleaded guilty to first-degree sexual assault and other charges related to breaking into his neighbor’s home, grabbing her by the throat, threatening to kill her and repeatedly raping her. After the trial court sentenced him to 20 years to life in prison, it considered whether he should be designated an SVP.

Under § 18-3-212.5(1)(a), C.R.S. (2012), an offender who was at least 18 years old at the time of committing an enumerated sexual offense against a stranger or victim with whom the offender established a relationship primarily for the purpose of sexual victimization, and is likely to recidivate based on the results of the screening instrument, can be designated an SVP. A ...

ICE Implements New Directive to Limit Solitary Confinement

ICE Implements New Directive to Limit Solitary Confinement

Civil rights and immigration advocacy groups are watching closely to see the results of a change in federal policy governing the placement of immigrant detainees in solitary confinement, which was implemented one year following the release of a damning report on that issue.

Immediately after the policy was adopted by Immigration and Customs Enforcement (ICE) on September 4, 2013, the American Civil Liberties Union pledged to “closely monitor the implementation of the new directive,” which the ACLU cautiously hailed as a step in the right direction toward ending segregation and solitary confinement for immigrant detainees.

“The new ICE directive sets a good example for the prison system writ large when it comes to monitoring the use of solitary confinement,” Ruthie Epstein, an ACLU legislative policy analyst, said in a written statement.

“If strictly enforced throughout the ICE detention system – including at county jails and contract facilities – ICE’s new policy could represent significant progress in curtailing this inhumane practice,” she added, noting the directive “sets important limits on the use of solitary confinement. Solitary confinement in both immigration detention and the criminal justice system is cruel, expensive, and ...

“Ban the Box” Movement Spreads Nationwide

“Ban the Box” Movement Spreads Nationwide

by Joe Watson

Prisoner advocacy groups are hailing recent successes in “Ban the Box” campaigns to remove questions related to criminal records from employment applications, and say they hope to expand the movement even further as momentum grows to help ex-offenders find jobs.

San Francisco became the first city in the nation to adopt a Ban the Box policy that includes private employers and affordable housing, when Mayor Ed Lee signed the Fair Chance Ordinance on March 4, 2014. The law bars private companies with more than 20 employees, contractors that hold city contracts worth more than $5,000 and any residential building that has received city funding from asking about a potential applicant’s criminal history prior to conducting a job interview or reviewing a housing application.

“Ban the Box” is the catchphrase coined by All of Us or None, a San Francisco-based advocacy organization composed of formerly-incarcerated people and their families, founded in 2003. It refers to the question on job applications, usually accompanied by a check-box, that asks whether an applicant has a criminal history.

Employers can still ask about convictions later in the hiring process and deny job offers based on ...

Pennsylvania Activists Arrested for Protesting Construction of New Prison Complex

Pennsylvania Activists Arrested for Protesting Construction of New Prison Complex

Seven members of Decarcerate PA, a grassroots coalition working to end mass incarceration in Pennsylvania, were arrested while protesting the construction of a new two-prison complex in that state. The protest was to highlight the $400 million cost to build the facilities, which could be better spent on schools.

To make that point, the protestors set up 10 school-style desks with apples and notebooks across the entrance to the construction site for the prisons, which is on the grounds of SCI Graterford. They also set up a mock schoolhouse in what they said was the “first-ever act of civil disobedience to block prison construction in Pennsylvania.”

The November 19, 2012 protest began at 6:40 AM. It was short-lived, as the protestors were arrested about an hour later after they ignored orders by the State Police to disperse. They were charged with defiant trespass, failure of disorderly persons to disperse upon official order and persistent disorderly conduct. Following arraignment, they were released on bail.

The seven protestors, all from Philadelphia, were Layne Mullett, 27; Jenna Peters-Golden, 27; Leana Cabral, 29; Erica Slaymaker, 23; Sean Damon, 35; David Fisher, 41 ...

California Prison Healthcare Costs Soar Under Federal Receiver

California Prison Healthcare Costs Soar Under Federal Receiver

Creating a balance between adequate healthcare for prisoners at a reasonable and affordable cost for taxpayers is at the heart of a debate being argued in legislative offices and behind prison walls in California.

The federal receiver appointed to overhaul the state’s prison healthcare says he has worked hard to reform a dysfunctional system that – at its worst in 2005 – claimed the life of one prisoner per week due to negligence, malfeasance or inadequate and substandard medical care. [See: PLN, March 2006, p.1].

State officials counter that the reforms have produced a “Cadillac” level of care that has caused medical costs to skyrocket, nearly doubling over the past decade. Statistics indicate, for example, that partly as a result of healthcare costs, California now spends more per year housing a state prisoner than it does to educate a child in public school.

When a federal district court assumed oversight of the state’s prison healthcare system and appointed a receiver in 2006 – initially Robert Sillen, who was replaced by J. Clark Kelso in 2008 – the court gave the receiver’s office the authority to hire medical staff and set their ...

Fifth Circuit Declares SORNA Unconstitutional in Certain Cases, Reversed by Supreme Court

Fifth Circuit Declares SORNA Unconstitutional in Certain Cases, Reversed by Supreme Court

by Matt Clarke

The full Fifth Circuit Court of Appeals held in July 2012 that Congress did not have the power to enact criminal penalties for failing to register as a sex offender following an intrastate move, as applied to a defendant who had been unconditionally released from a federal prison sentence and military service prior to the enactment of the registration law. Thus, the Court declared the Sex Offender Registration and Notification Act (SORNA) and accompanying statutes and rules, 42 U.S.C. § 16913, 18 U.S.C. § 2250(a) and 28 C.F.R. § 72.3, unconstitutional under those narrow circumstances. The Supreme Court disagreed, however, and reversed the appellate ruling.

In 1999, Anthony James Kebodeaux, 21, was in the military when he was convicted of having sex with a fifteen-year-old girl and sentenced to three months in prison. After serving his sentence, he was no longer in the military; his release from both prison and military service was unconditional.

SORNA requires all federal sex offenders to register with state registration authorities within three days of moving. Texas law requires registration within seven ...

Probe Reveals Corruption at Pennsylvania Jail

Probe Reveals Corruption at Pennsylvania Jail

A former guard at Pennsylvania’s Erie County Prison and his supervisor, who is also his wife, were accepted into a special diversion program for first-time offenders after being charged in connection with payroll tampering and missing ammunition. Another guard was demoted following an investigation into misconduct at the facility.

Sgt. Daniel S. Danowski, 41, and his supervisor and wife, Capt. Leslie L. Danowski, 40, were fired in October 2012 after being charged in a scheme that netted Daniel Danowski nearly $3,500 in pay he did not earn.

Jim Senyo, the deputy warden of safety and security at the Erie County Prison, was demoted and suspended without pay for five days for his involvement in a separate scheme in which Daniel Danowski sold over 400 rounds of prison ammunition to a former guard. Senyo’s duties as deputy warden included overseeing the facility’s armory, where the ammunition was stored.

The investigation uncovered a conspiracy between the Danowskis to falsify time-keeping records at the prison, resulting in $3,428 in payments to Daniel Danowski for work he never performed between February and July 2012.

Erie police charged Daniel Danowski with misdemeanor charges of theft by unlawful ...

Nebraska DOC Obstructing Efforts to Modify Prisoners’ Child Support Payments

Nebraska DOC Obstructing Efforts to Modify Prisoners’ Child Support Payments

Excessive enforcement of child support obligations is not only detrimental to incarcerated parents, according to advocates in Nebraska, but also risks increasing recidivism and hindering familial relationships.

Legal Aid of Nebraska, led by managing attorney Muirne Heaney, has attempted to help prisoners modify their child support payments by offering forms and clinics on how to navigate that process. But the state’s Department of Correctional Services has obstructed those efforts by prohibiting prisoners from receiving the forms provided by Heaney, saying they haven’t been approved by a state attorney.

“Nobody is advocating [incarcerated parents] should be freed of their responsibility,” Heaney said. “What I am advocating is that we make [child support] a collectable judgment.”

At the end of 2011, Nebraska prisoners – over 4,000 men and women – owed back child support and interest of about $86 million; close to 700 had monthly child support obligations of at least $400. Many had owed back child support before they were incarcerated.

The debts are despite the enactment of a 2007 state law that made imprisonment an involuntary, rather than voluntary, circumstance with respect to child support payments once ...

New York District Attorney Admits Lying About Acting in Porn Movies

New York District Attorney Admits Lying About Acting in Porn Movies

An upstate New York district attorney who lied when questioned during his re-election campaign about being an actor in pornographic movies during the 1970s will not quit, despite public calls for his resignation and at least one expert’s view that he may have violated New York State Bar Association rules.

Democratic incumbent Mark D. Suben was re-elected in 2012 as district attorney for Cortland County, near Syracuse. During the campaign he was asked whether he had acted in adult films in the 1970s, and he denied having done so.

Suben accused his Republican opponent, Keith Dayton, of spreading false rumors in a smear campaign to discredit him.

However, WSTM-TV reported on November 17, 2012 that Suben had in fact acted in pornographic movies under his real name and the pseudonym Gus Thomas. An anonymous YouTube video compared images of Suben and Thomas, and presented other evidence.

Suben then decided to come clean.

“Recently, materials have circulated alleging that I was involved in the adult film industry about 40 years ago in New York. Those allegations are true,” Suben admitted in a news conference ten days after the election ...

Investigation Uncovers Lost Graves at Former Florida Juvenile Facility

Investigation Uncovers Lost Graves at Former Florida Juvenile Facility

by David M. Reutter

An anthropological team from the University of South Florida investigating the grounds of the now-closed Florida Industrial School for Boys (FISB), a juvenile detention facility in Marianna, has identified the remains of three youths buried in a cemetery on the property and continues to exhume other bodies discovered at the site.

In all, the team found 55 graves – 24 of which were outside the boundaries of the marked cemetery – at the facility, which was formerly called the Arthur G. Dozier School for Boys. Researchers believe another cemetery for black youths is also located on the property.

The FISB came under scrutiny in 2008 after a group of men publicized stories about physical and sexual abuse they had endured while held at the facility as juveniles. They called themselves the “White House Boys,” after a small white building where the most serious abuses occurred. Some said they were made to lie down on a bed and severely beaten with leather straps by school officials. [See: PLN, March 2009, p.22].

“I came out of there in shock, and when they hit you, you went down ...

News in Brief

News in Brief

Alaska: On January 12, 2014, twenty-year-old detainee Jairus Nelson slipped under a garage door at the Dillingham jail and fled wearing nothing but his underwear. He ran into some nearby woods and later attempted to jump into several passing cars to evade officers. Unfortunately for Nelson, after several unsuccessful attempts to find a ride to freedom, he tried to enter the car of off-duty policeman Dan Decker. Decker recognized the escapee and held him until other officers arrived. Nelson was returned to the jail, given a new set of clothes and charged with felony escape.

Arizona: Anthony James Marotta resigned from his job as a guard at ASPC Perryville after he was allegedly caught receiving oral sex from a female prisoner in the back of a transport vehicle. Another prisoner was driving the vehicle when she witnessed the incident in the rearview mirror; she reported it to prison authorities, and Marotta was arrested on December 31, 2013. He admitted to the sex act and to an earlier incident of sexual misconduct

Arizona: A prisoner being held on death row at the Eyman complex was found dead in his cell on January 27, 2014. According to the Pinal ...


 

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Disciplinary Self-Help Litigation Manual

 



 

Federal Prison Handbook

 



 


 

Disciplinary Self-Help Litigation Manual