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Prison Legal News: March, 2014

Issue PDF
Volume 25, Number 3

In this issue:

  1. Corizon Needs a Checkup: Problems with Privatized Correctional Healthcare (p 1)
  2. Florida County Agrees to Pay $4 Million to Deceased Prisoner’s Estate (p 16)
  3. Seventh Circuit Upholds Removal of Prisoner’s Dreadlocks (p 17)
  4. From the Editor (p 18)
  5. Second Circuit Vacates Magistrate’s Judgment Entered without Consent (p 18)
  6. Why There’s an Even Larger Racial Disparity in Private Prisons Than in Public Ones (p 20)
  7. Arrest-Proof Yourself, by Dale Carson and Wes Denham (p 22)
  8. When Victims Speak Up in Court – in Defense of the Criminals (p 24)
  9. Texas Criminal Court Fees are a Tax on Poor Defendants (p 28)
  10. Oregon Jail Guard Quits, Divorces Wife for Former Prisoner (p 30)
  11. South Dakota Parole Board Improperly Enhanced Prisoner’s Parole Date (p 31)
  12. California Female Prisoners Sterilized (p 32)
  13. Kentucky Supreme Court: Probation Cannot be Extended for Sex Offender Treatment (p 34)
  14. Former Detainee Alleges Unconstitutional Conditions at Illinois Jail, Accepts $7,501 Judgment (p 34)
  15. Seventh Circuit Upholds FTCA Venue Transfer (p 35)
  16. Alabama Sheriff Made Party on Counterclaim Alleging Prisoners Subjected to Sexual Abuse (p 36)
  17. Adverse Inference Instruction Required for New York Jail’s Destruction of Video Evidence (p 36)
  18. Washington Jail Denied Good Time without Due Process; Rehearing Ordered (p 37)
  19. Texas Courts Examine Proof of Ability to Pay Probation Fees before Revocation (p 38)
  20. California County Not Liable for Misconduct of Jail Guard Not Acting within Scope of Employment (p 38)
  21. Second Circuit: Videoconference at Resentencing Violates Right to be Present (p 39)
  22. Taylor County, Texas Rarely Disciplines Jailers (p 40)
  23. Eighth Circuit: Denial of Nominal Damages Jury Instruction was Improper (p 40)
  24. D.C. Circuit Holds PLRA’s Exhaustion Requirement Inapplicable to Former Prisoner (p 41)
  25. Michigan Parole and Probation Supervision Scrutinized; Three Officials Fired (p 42)
  26. The Federal Tort Claims Act: A Primer (p 44)
  27. Psst! Hey Man, Need Some Execution Drugs? (p 46)
  28. A Rare Look Inside the Maine State Prison's "Supermax" (p 48)
  29. Video Visitation a Growing Trend, but Concerns Remain (p 50)
  30. PLRA Does Not Permit Waiver of Court-ordered Answer (p 51)
  31. Online Gaming Accounts of New York Registered Sex Offenders Restricted or Closed (p 51)
  32. New Hampshire Prisoners Suspected of Breaching Prison Computer System (p 52)
  33. Businesses, Members of Congress Not Happy with UNICOR (p 52)
  34. Ninth Circuit Holds Staff Sexual Abuse Presumed Coercive; State Bears Burden of Rebutting Presumption (p 54)
  35. Lawsuits filed over Oregon Jail Death (p 54)
  36. News in Brief (p 56)

Corizon Needs a Checkup: Problems with Privatized Correctional Healthcare

Corizon, the nation’s largest for-profit medical services provider for prisons, jails and other detention facilities, was formed in June 2011 through the merger of Prison Health Services (PHS) and Correctional Medical Services (CMS).

In April 2013, the debt-rating agency Moody’s downgraded Corizon’s nearly $360 million worth of debt to a ...

Florida County Agrees to Pay $4 Million to Deceased Prisoner’s Estate

Nicholas T. Christie, incarcerated at the Lee County jail in Ft. Myers, Florida, died on March 31, 2009 after being repeatedly pepper sprayed by deputies while strapped to a restraint chair. Following three years of litigation, Lee County officials agreed in May 2013 to pay a record settlement of $4 ...

Seventh Circuit Upholds Removal of Prisoner’s Dreadlocks

The Seventh Circuit Court of Appeals has held that an Illinois prisoner’s religious rights were not violated when prison officials required him to cut off his dreadlocks to be transported to a court hearing.

Peter A. Lewis, incarcerated at the Dixon Correctional Center, is a member of a religious ...

From the Editor

This month’s cover story on Corizon, the company formed by the merger of Prison Health Services and Correctional Medical Services, is our most recent reporting on an issue that has been ongoing for the past several decades. Namely, the prison HMO model whereby corrections agencies contract with for-profit companies ...

Second Circuit Vacates Magistrate’s Judgment Entered without Consent

On March 6, 2013, the Second Circuit Court of Appeals vacated the summary judgment dismissal of a New York prisoner’s lawsuit, finding he had not consented to having the case decided by a magistrate judge.

Willie James Yeldon filed suit in federal court against numerous New York and Wyoming prison ...

Why There’s an Even Larger Racial Disparity in Private Prisons Than in Public Ones

It’s well known that people of color are vastly overrepresented in U.S. prisons. African-Americans and Latinos constitute 30 percent of the U.S. population and 60 percent of its prisoners. But a new study by University of California-Berkeley researcher Christopher Petrella addresses a fact of equal concern. Once ...

Arrest-Proof Yourself, by Dale Carson and Wes Denham

(Chicago Review Press, 2007). 282 pages (paperback), $14.95.

Book review by John E. Dannenberg

In short, Arrest-Proof Yourself is a colorfully-written manual on how to avoid being arrested. The book’s principal thesis is a hypothetical “electronic plantation” where all persons who are arrested – even if later exonerated – must ...

When Victims Speak Up in Court – in Defense of the Criminals

A death penalty case in Colorado has generated an unusual fight between a district attorney and two parents who oppose capital punishment against the man who murdered their son.

One of the most profound changes in criminal justice over the past 40 years has been the rise of the victims ...

Texas Criminal Court Fees are a Tax on Poor Defendants

by Matt Clarke

The Texas legislature has erected such a hodgepodge of criminal court fees that even the court administrators and clerks don’t know how to apply them. These fees, which are frequently not used for their intended purposes, amount to a hidden tax on the poorest members of ...

Oregon Jail Guard Quits, Divorces Wife for Former Prisoner

"I crushed a dude’s eye socket from repeatedly punching him in it, then I charged him with menacing and harassment,” bragged Multnomah County, Oregon jail guard David B. Thompson in one of more than 1,700 messages he posted on an Internet gaming site over an eight-month period while ...

South Dakota Parole Board Improperly Enhanced Prisoner’s Parole Date

The South Dakota Supreme Court has held that the state Board of Pardons and Paroles (Board) exceeded its authority when it calculated a prisoner’s initial parole release date by treating Class 4 felonies as Class 2 felonies.

Lloyd Rowley was convicted of two Class 4 felonies on October 12 ...

California Female Prisoners Sterilized

More than 130 female prisoners at two California facilities were sterilized over a four-year period without required state approval, and some of the women have claimed they were pressured, harassed and even tricked into signing forms agreeing to the sterilizations. The procedure, known as tubal ligation, involves severing a woman ...

Kentucky Supreme Court: Probation Cannot be Extended for Sex Offender Treatment

The Supreme Court of Kentucky has held that a probationer’s period of probation cannot be extended to require completion of a sex offender treatment program.

Elmer David Miller was originally charged with felony first-degree unlawful transaction with a minor. He entered into a plea agreement for a misdemeanor charge ...

Former Detainee Alleges Unconstitutional Conditions at Illinois Jail, Accepts $7,501 Judgment

On April 24, 2013, the Seventh Circuit Court of Appeals held that a former pretrial detainee at the Edgar County Jail (ECJ) in Illinois stated a claim concerning unconstitutional conditions of confinement at the facility. The appellate court also affirmed the dismissal of a claim alleging deliberate indifference to the ...

Seventh Circuit Upholds FTCA Venue Transfer

The Seventh Circuit Court of Appeals has upheld the transfer of a former federal prisoner’s negligence action from Illinois to Kansas.

Daniel Hudson relocated to Illinois following his release from a federal prison in Kansas. He filed a Federal Tort Claims Act (FTCA) suit in U.S. District Court ...

Alabama Sheriff Made Party on Counterclaim Alleging Prisoners Subjected to Sexual Abuse

The Alabama Supreme Court has held that a third party to a lawsuit may be made a party when a counterclaim is filed. The Court also held a sheriff named as a defendant was not entitled to qualified immunity on a federal claim in her individual capacity, but was entitled ...

Adverse Inference Instruction Required for New York Jail’s Destruction of Video Evidence

The New York Court of Appeals has held that when a criminal defendant acts with due diligence to demand the preservation of evidence that is reasonably likely to be of material importance, and the evidence is destroyed by the state, the defendant is entitled to an adverse inference jury instruction ...

Washington Jail Denied Good Time without Due Process; Rehearing Ordered

The Washington Court of Appeals held in an unpublished opinion that a prisoner was denied good time credits without adequate due process protections.

Allen Michael Knoll was held in the Skagit County jail between March 2011 and August 30, 2011, when he was transferred to the Washington Department of Corrections ...

Texas Courts Examine Proof of Ability to Pay Probation Fees before Revocation

by Matt Clarke

In a November 14, 2012 opinion, the Texas Court of Criminal Appeals held prosecutors are not required to prove that a probationer was able to pay fees and fines when his probation was revoked due to nonpayment. The Court of Appeals reversed the probation revocation on remand ...

California County Not Liable for Misconduct of Jail Guard Not Acting within Scope of Employment

On April 3, 2013, the California Court of Appeal held that a county is not liable for damages arising out of the misconduct of one of its jail guards when such misconduct is deemed to be “purely personal” and thus not within the scope of the guard’s employment.

In ...

Second Circuit: Videoconference at Resentencing Violates Right to be Present

The Second Circuit Court of Appeals has held that resentencing a defendant by videoconference violated his right to be present in court, and the government failed to satisfy its burden of establishing that the defendant knowingly and voluntarily waived his right to be present. Under the circumstances, however, the error ...

Taylor County, Texas Rarely Disciplines Jailers

Compared to scandals at the Harris County Jail in Houston – where guards have assaulted and had sex with prisoners, mistakenly released prisoners and abandoned their posts to play dominos [see: PLN, Sept. 2013, p.23] – problems at the Taylor County Jail in Abilene, Texas seem fairly tame.

According to news ...

Eighth Circuit: Denial of Nominal Damages Jury Instruction was Improper

The Eighth Circuit Court of Appeals held on September 4, 2012 that a district court erred when it refused to give a nominal damages jury instruction in a lawsuit brought by a Missouri state prisoner. Another trial was held in June 2013 following remand, and the jury again ruled in ...

D.C. Circuit Holds PLRA’s Exhaustion Requirement Inapplicable to Former Prisoner

The Circuit Court of Appeals for the District of Columbia has held that the administrative exhaustion requirement of the Prison Litigation Reform Act (PLRA) does not apply to suits filed by persons who are no longer incarcerated.

The lawsuit at issue, filed by former prisoner John B. Lesesne, alleged permanent ...

Michigan Parole and Probation Supervision Scrutinized; Three Officials Fired

The failure to properly supervise parolees and probationers accused of committing high-profile murders has resulted in the firing of three Michigan Department of Corrections (MDOC) employees. The MDOC supervises around 20,000 parolees and 50,000 probationers.

“Our parole/probation staff performs critical functions that are vital to ensuring public ...

The Federal Tort Claims Act: A Primer

The Federal Tort Claims Act (FTCA) is outlined in various sections of Chapter 28 of the United States Code, which describe the steps necessary to file and maintain a tort action against the U.S. government.

The FTCA is the exclusive remedy for monetary damages for injuries “caused by the ...

Psst! Hey Man, Need Some Execution Drugs?

Officials in Delaware and 31 other states that use lethal injection to execute prisoners are scrambling to find new drugs to carry out death sentences, and in some cases are procuring them through secret exchanges and confidential deals – and from questionable sources.

Emails obtained by the Associated Press (AP) revealed ...

A Rare Look Inside the Maine State Prison's "Supermax"

An almost-clean version of hell

by Lance Tapley

There was a stain of what looked like blood on the floor of the otherwise shiny-clean, empty Mental Health Unit isolation cell. “It’s Kool-Aid,” said my minder, a deputy warden. He smiled. But, as the saying goes, I hadn’t drunk the ...

Video Visitation a Growing Trend, but Concerns Remain

A growing trend toward the use of video visitation at jails across the country is drawing the praise of corrections officials and prisoners’ family members alike, though some advocacy groups worry that video visits could pose an undue financial hardship on those least able to afford it and possibly lead ...

PLRA Does Not Permit Waiver of Court-ordered Answer

An Illinois federal district court has condemned a practice employed by the Illinois Attorney General when representing defendants in lawsuits brought by prisoners. The district court concluded that a motion for leave to waive an answer is unnecessary, and that the assertion of affirmative defenses in a pleading purporting to ...

Online Gaming Accounts of New York Registered Sex Offenders Restricted or Closed

According to New York Attorney General Eric T. Scheiderman, around 5,600 online gaming accounts belonging to sex offenders registered with the State of New York have been restricted or canceled. Gaming companies Microsoft, Sony, Blizzard, Electronic Arts, Warner Brothers, Disney, Funcom, THQ, Gaia Online, NCSoft and Apple all cooperated ...

New Hampshire Prisoners Suspected of Breaching Prison Computer System

New Hampshire officials are investigating a suspected “breach” of the Department of Corrections (DOC) computer system at the State Prison for Men in Concord. The investigation began when a staff member noticed a cable linking a computer used by prisoners to a staff computer with access to the DOC’s ...

Businesses, Members of Congress Not Happy with UNICOR

When a powerful U.S. Senator takes interest in an issue, even a bureaucratic government agency like the Bureau of Prisons (BOP) pays attention.

Kurt Wilson, an executive with American Apparel, Inc., an Alabama company that makes military uniforms, and Michael Marsh of Kentucky-based Ashland Sales and Service Co., found ...

Ninth Circuit Holds Staff Sexual Abuse Presumed Coercive; State Bears Burden of Rebutting Presumption

The Ninth Circuit Court of Appeals has held that a district court erred when finding a prisoner could not state an Eighth Amendment sex abuse claim because he “consented” to a relationship with a prison guard.

In 2002, Idaho prisoner Lance Wood and guard Sandra De Martin began a romantic ...

Lawsuits filed over Oregon Jail Death

The mother of a deceased prisoner has sued jail and hospital officials over the death of her son at the Marion County Jail (MCJ) in Salem, Oregon.

On June 14, 2010, Robert Haws was arrested for several criminal offenses and a probation violation, according to court records. He was held ...

News in Brief

Arizona: Two prisoners at the Yavapai County Jail have been sentenced for their involvement in a fraudulent tax refund scheme. James Borboa pleaded guilty and on September 8, 2013 received an additional term of 18.5 years in prison for using other prisoners’ IDs to file tax returns for 2010 ...