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Prisoner Education Guide

Prison Legal News: March, 2014

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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. Second Circuit Vacates Magistrate’s Judgment Entered without Consent (p 18)
  5. From the Editor (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. Former Detainee Alleges Unconstitutional Conditions at Illinois Jail, Accepts $7,501 Judgment (p 34)
  14. Kentucky Supreme Court: Probation Cannot be Extended for Sex Offender Treatment (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. Online Gaming Accounts of New York Registered Sex Offenders Restricted or Closed (p 51)
  31. PLRA Does Not Permit Waiver of Court-ordered Answer (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. Lawsuits filed over Oregon Jail Death (p 54)
  35. Ninth Circuit Holds Staff Sexual Abuse Presumed Coercive; State Bears Burden of Rebutting Presumption (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 rating of B2 – an indication the company’s debt is highly speculative and a high credit risk. According to Moody’s, the rating downgrade was due to an “expectation of earnings volatility following recent contract losses, margin declines from competitive pricing pressure on new and renewed contracts, and Moody’s belief that Valitás [Corizon’s parent corporation] will be unable to restore metrics to levels commensurate with the prior B1 rating over the near to intermediate term.”

Valitás Health Services is majority owned by Beecken Petty O’Keefe & Company, a Chicago-based private equity management firm. Beecken’s other holdings are primarily in the healthcare industry.

On September 23, 2013, Moody’s again downgraded Corizon’s debt rating and changed the company’s rating outlook from “stable” to “negative.” The following month Corizon announced that it had replaced CEO Rich Hallworth with Woodrow A. Myers, Jr., the former chief medical officer at WellPoint Health. Hallworth, who ...

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 million to Christie’s estate.

The jail’s for-profit medical contractor, Prison Health Services (PHS), now known as Corizon, was named as a defendant in the federal lawsuit and included in the settlement agreement.

The § 1983 suit raised claims related to Christie’s death under the “Fourth, Eighth and/or Fourteenth Amendments to the United States Constitution, the laws of the United States, and the laws of the State of Florida.”

The complaint alleged that Christie was “restrained to a chair with a hood over his head and face for several hours in the custody of the Lee County Sheriff, while being detained on a misdemeanor trespass charge,” and that medical staff at the jail failed to provide him with adequate care after he showed signs of respiratory distress during and after that incident. Medical personnel, the lawsuit stated, “acted willfully, wantonly, maliciously, and with reckless and callous disregard for ...

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 sect called the African Hebrew Israelites of Jerusalem. Consistent with the requirements of his faith, Lewis took the voluntary Nazirith vow, which, among other things, committed him to not cut his hair. He had previously filed suit against prison officials, claiming that they infringed his religious freedom by refusing to let him have visits unless he agreed to cut his hair. A 2003 settlement in that lawsuit allowed Lewis to have visitors if he permitted guards to search his dreadlocks for contraband before and after each visit.

Prison officials gave Lewis a choice in January 2004, when he was scheduled to appear in federal court. He could either get a haircut or go to segregation as punishment for eluding (by refusing a haircut) his scheduled court hearing. Lewis chose the haircut, then claimed prison officials knew his court date had been postponed, depriving them of a security concern that justified ...

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 and community-based doctors under 42 U.S.C. § 1983.

Although he expressly declined to consent to the appointment of a magistrate judge, the district court entered a February 8, 2008 order referring the case to a magistrate pursuant to 28 U.S.C. § 636(c). The magistrate judge then granted summary judgment to the defendants on all of Yeldon’s claims.

On appeal, the Second Circuit noted it had previously held in N.Y. Chinese TV Programs, Inc. v. U.E. Enterprises, 996 F.2d 21 (2d Cir. 1993) that consent to appoint a magistrate judge must be “truly voluntary,” and “consent of all parties must be clear and express or the requirement would mean little.”

Recognizing that Yeldon had expressly refused to consent to a magistrate, the Court of Appeals could not find on the record before it that he gave implied consent by failing to ...

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 to provide medical services to prisoners, while the companies’ business model requires that they delay or deny treatment in order to make a profit. Not surprisingly this results in a pattern of deaths, injuries and pain suffered by prisoners who have no other options for obtaining medical care.

What is interesting is that despite decades of abuse, corruption and fraud, the government entities that contract with for-profit prison medical providers still fail to adequately monitor and audit their performance. Even after repeated contractual violations, if one company’s contract is canceled or expires, the government typically awards the contract to another corporation with similar performance problems. Besides Corizon, other prison medical care companies include Wexford Health Sources, Centurion, NaphCare, Armor Correctional Health Services, Correct Care Solutions and Conmed Health Management.

The notion that such companies should actually be required to provide the medical services for which they are being paid ...

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 sentenced, people of color are more likely than their white counterparts to serve time in private prisons, which have higher levels of violence and recidivism and provide less sufficient health care and educational programming than equivalent public facilities. [See: PLN, March 2013, p.16].

The study compares the percentage of prisoners identifying as black or Hispanic in public prisons and private prisons in nine states. It finds that there are higher rates of people of color in private facilities than public facilities in all nine states studied, ranging from 3 percent in Arizona and Georgia to 13 percent in California and Oklahoma. According to Petrella, this disparity casts doubt on cost-efficiency claims made by the private prison industry and demonstrates how ostensibly “colorblind” policies can have a very real effect on people of color.

The study points out an important link between prisoner age and race. Not only do private ...

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 serve an irrevocable life sentence of being blacklisted from future employment, socially ostracized, etc. as a result of their arrest record. The book is written in street language to garner the attention of younger people who, statistically, are more likely to face arrest. The authors emphatically counsel the reader, wherever possible, to simply avoid being seen by the police; but if stopped, they provide advice on how to act and, more importantly, how not to act.

Authors Carson and Denham speak from years of experience: Carson was a former police officer in both state and federal jurisdictions while Denham is a private investigator. Carson, now a defense attorney, today defends the very people who, in Arrest-Proof Yourself, he tries to prevent from needing his services. Throughout the book the authors speak about how police officers love to arrest people, which not only makes them happy but also improves their job ...

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’ lobby. Essentially shut out of the core of the process until the 1970s, the victims’ rights movement today can cite legislation from sea to sea, chapter and verse under both federal and state laws, that broadens the rights of victims to participate in the trials of those accused of harming them or their families. The Department of Justice’s 2012 “Attorney General Guidelines for Victim and Witness Assistance,” for example, totals 66 pages and barely scratches the surface of what similar state guidelines reveal.

The immutable trio that once existed in criminal cases – judge, prosecutor and defendant – now almost always resembles a quartet. Victims have a voice – and they use it. All 50 states now allow some form of “victim impact statement” at sentencing. Because such statements are often so compelling to jurors, defense attorneys frequently seek ways to blunt their impact. But these efforts almost always fail. Even judges ...

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 society ensnared in Texas’ criminal justice system.

“Sometimes, I can’t even tell my client what the bill is for,” said Austin defense attorney David Gonzales.

He is not alone. The Texas Office of Court Administration (TOCA) receives “hundreds of calls from court officials about how to assess and prioritize fines, fees and surcharges in criminal cases,” according to a report the agency published in 2009. “The sprawling number of state and local fees and court costs that state law prescribes as a result of a criminal conviction amounts to a nearly incomprehensible package.”

The fee system is so complex that people convicted of identical crimes might be charged vastly different fees, possibly violating the constitutional guarantee of equal treatment under the law.

Nor is it always possible to determine how a particular fee is actually used; typical legislative practice includes the raiding of fee accounts to balance the budget ...

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 at work in 2007.

“Seeing someone get Tasered is second only to pulling the trigger,” Thompson wrote in another post. “That is money – puts a smile on your face.”

As previously reported in PLN, Thompson, who had been employed as a veteran guard at the Multnomah County Detention Center (MCDC), was merely suspended without pay for 11 days rather than terminated or prosecuted for misuse of jail computers or using excessive force against prisoners. [See: PLN, March 2009, p.25].

The suspension did little to get Thompson’s attention, apparently. He faced complaints for injuring a male prisoner in March 2009, for an undocumented use of force on a female prisoner in September 2010 and for an inappropriate conversation with another female prisoner in November 2011.

While assaulting prisoners is seemingly okay, falling in love with them evidently crosses the line in the eyes of Thompson’s MCDC co-workers. When ...

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, 2007. His sentence was enhanced two levels – to the equivalent of Class 2 felonies – because he was a habitual offender, and he received 21 years in prison for both convictions.

Pursuant to SDCL 24-15A-32, defendants convicted of Class 4 felonies must serve 40 percent of their sentences before parole eligibility while those convicted of Class 2 felonies have to serve 50 percent of their sentences.

Since his sentence had been enhanced, the Department of Corrections (DOC) calculated Rowley’s initial parole date using the Class 2 percentage rather than the Class 4 percentage. The Board subsequently affirmed the DOC’s initial parole date calculation; Rowley filed an appeal in circuit court, which upheld the Board’s decision.

The South Dakota Supreme Court reversed, finding that the plain language of the habitual offender statute, SDCL 22-7-8.1, “indicates that the sentence is enhanced, not the principal felony.”

The Court concluded: “By ...

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’s fallopian tubes to prevent eggs from reaching the uterus; the operation requires general anesthesia and is considered permanent.

The surgeries were performed from 2006 to 2010 at outside medical facilities by doctors under contract with the California Department of Corrections and Rehabilitation (CDCR). Joyce Hayhoe, a spokeswoman for California Correctional Health Care Services – the federal court-appointed receiver over CDCR medical care – said the procedures violated state regulations that restrict tubal ligations not deemed medically necessary. They did not, however, violate state law.

According to public records, doctors were paid $147,460 to perform the sterilizations on female prisoners from the California Institution for Women and Valley State Prison in Chowchilla. The Center for Investigative Reporting (CIR), which first reported the story on July 7, 2013, initially identified 148 prisoners who were sterilized from 2006 to 2010, but that number was later revised downward to 132 after a further review ...

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 detainee’s medical needs.

Over a period of two-and-a-half years, Richard D. Budd served three stints at ECJ as a pretrial detainee. He initially spent 45 days at the jail following a 2009 arrest. During that time he was confined with eight other detainees in an area of the facility intended for three; he had to sleep on the floor alongside broken windows and damaged toilets.

After another arrest two years later, Budd was placed in a section of the ECJ where overcrowded conditions again forced him and other prisoners to sleep on the floor amid water from a shower leak. The cells had broken windows, exposed wiring, extensive rust, sinks without running water, toilets covered in mold and spider webs, and a broken heating system. ECJ staff did not provide prisoners with cleaning supplies.

Four months later, Budd was again arrested and had to sleep on the floor in ...

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 of criminal attempt to commit first-degree unlawful transaction with a minor, because the victim was over the age of sixteen. The plea agreement included two years of probation and required Miller to “[a]ttend any counseling recommended by probation and parole.”

Following the recommendation of the Division of Probation and Parole, Miller enrolled in the state’s sex offender treatment program. Shortly before his period of probation ended, his probation officer informed the trial court that Miller would be unable to complete the program before the expiration of his probation term. The court then held a hearing and extended Miller’s probation until he finished the three-year sex offender treatment program.

Miller challenged the trial court’s order and the Court of Appeals reversed, holding that he had not agreed to the extension of his probation and, in fact, had opposed it at the hearing. The appellate court remanded 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 in Illinois, alleging that Kansas medical staff had negligently misdiagnosed a blood clot in his leg.

The district court granted the defendants’ motion to transfer the case to a federal court in Kansas pursuant to 28 U.S.C. § 1404(a), because the principal witnesses were located in Kansas and the per-judge caseload in that state was lighter than the caseload in Illinois.

Hudson then filed a mandamus petition with the Seventh Circuit, seeking to return venue to Illinois. He argued that he and five of his witnesses – including three treating physicians – resided in Illinois.

The Court of Appeals agreed that mandamus was the proper method to challenge the district court’s transfer order: “The grant of the government’s motion to transfer the case was an unappealable interlocutory order, but an unappealable order can in exceptional circumstances be reviewed by a mandamus proceeding. The grant of a motion to ...

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 to immunity on a federal official capacity claim and state law claims.

The case involved a lawsuit filed by Scott Cotney, an administrator at the Clay County Jail, against former jail guard Phillip E. Green and prisoners Anthony Haywood and Daniel Hall, alleging defamation, slander, libel, invasion of privacy, negligence and wantonness. The claims resulted from a report filed by Green, Haywood and Hall with the Alabama Department of Corrections, claiming that Cotney had used his position to sexually abuse or assault Haywood and Hall while they were held at the jail.

Haywood and Hall filed a counterclaim against Cotney for violations of their Fourth, Eighth and Fourteenth Amendment rights. They also filed counterclaims against the Clay County Commission and Sheriff Dorothy “Jean Dot” Alexander, in her official and individual capacities. They alleged Alexander “had knowledge of [Cotney’s] unlawful acts ... and permitted the abuse to occur,” and made the ...

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.

Dayshawn P. Handy was charged with assaulting three deputy sheriffs at the Monroe County Jail. The first two assaults took place on November 8, 2006 and the third incident occurred on January 8, 2007. Handy was acquitted by a jury on counts one and three, but convicted on count two.

The count two assault charge involved an altercation with Deputy Brandon Saeva, who approached Handy in his cell after Handy returned from the shower. Saeva noticed that the boxers and sandals Handy was wearing were not “jail issue.” According to Saeva, Handy refused to turn over the sandals and swung at him. They scuffled, and other deputies helped Saeva gain control of Handy.

Deputy Timothy Schiff testified that he assisted in subduing Handy after the altercation with Saeva. When he reached for Handy’s right leg to control him, Schiff said Handy kicked back, injuring his thumb. Handy, however, testified ...

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. One day prior to his transfer, jail officials notified Knoll that he would not receive any good time credits because he “had been the subject of over 40 incident reports and had been disciplined 10 times for both major and minor rule violations.”

Knoll requested a hearing, contending that he had not been disciplined 10 times. The hearing was held five hours later and “the hearing officer upheld the denial of good time credit,” finding that Knoll had been the subject of “43 reports, 10 disciplinary actions, and 2 instances of use of force” at the jail.

Knoll then filed a personal restraint petition, arguing that inadequate advance notice of the hearing and lack of specificity of the disciplinary actions deprived him of good time credits without due process.

The Court of Appeals accepted the state’s concession that the jail’s failure to provide Knoll with at least 24 ...

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, and the Court of Criminal Appeals granted discretionary review of that ruling in June 2013.

Raimond Kevon Gipson, who was serving a term of probation, failed to pay his fees and fines. He was required to pay a $500 fine, supervision fees, court costs, a pre-sentence investigation (PSI) fee, a $50 Crime Stoppers fee and $1,000 in attorney fees. [See article in this issue of PLN regarding Texas criminal court fees].

The state filed for revocation due to the nonpayment. Gipson pleaded “true” to failure to pay fees but contested other reasons for the revocation. At no time did the state claim he was able to pay the fees but willfully failed to do so; Gipson also did not raise the issue of inability to pay. The trial court revoked his probation and sentenced him to eight years in prison.

On appeal, Gipson claimed that the state’s failure-to-pay ...

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 February 2005, Paul and Felicia Perry were injured in a car accident involving a vehicle owned by Alejandro Vital, who was then employed as a veteran jail guard by Fresno County. After the Perrys filed a personal injury suit against Vital, he became obligated to pay their medical bills resulting from the accident because his insurance company refused to cover those expenses.

Vital then embarked on a scheme designed to intimidate the Perrys into dropping their lawsuit. He accessed information about “dangerous inmates” through the jail’s computer system, then sent them racially inflammatory and insulting letters in Paul Perry’s name using his return address, hoping they would provoke the prisoners to retaliate against the Perrys.

Vital also wrote an anonymous letter to Fresno High School officials, accusing Perry, a coach, of once molesting a basketball player at the school.

An investigation led to Vital’s eventual admission that ...

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 was not prejudicial.

On November 1, 2000, alleged al Qaeda member Mamdouh Mahmud Salim was confined at the Metropolitan Correctional Center (MCC) in New York, awaiting trial on federal terrorism charges.

Salim and his cellmate, a co-defendant in the terrorism case, plotted “to take a guard’s keys so that Salim could attack his lawyers in an attorney-inmate meeting room. Their goal was to force Salim’s attorneys to withdraw their representation so that District Judge Sand, who was presiding over the terrorism case and previously had denied Salim’s repeated requests for new lawyers, would have to grant substitute counsel.”

As Salim was escorted to his cell from a meeting with his lawyers, under the guise of retrieving additional legal materials, Salim and his cellmate assaulted MCC guard Louis Pepe, stabbing him in the left eye with a sharpened plastic comb. Before he could attack his attorneys, however, Salim ...

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 reports, 28 of 135 employees at the Taylor County jail were disciplined in the three years prior to 2012, but the disciplinary action was minor and the misconduct much less serious than at Harris County. None of the discipline resulted in termination.

Former Taylor County Sheriff Les Bruce had a three-tier approach to employee discipline. First, an employee was given a letter of counseling. If that didn’t correct the problem, a letter of reprimand was issued. The last resort, termination, was reserved for when the letters did not have the desired effect of correcting errant behavior.

During the three-year period, two jail guards were reprimanded for “major booking errors.” One received a letter of counseling after he was caught surfing the Internet on the job after having received repeated prior warnings.

Other deputies were reprimanded for sleeping while on the job or in connection with the escape of two ...

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 favor of the defendant prison officials.

Missouri Department of Corrections (DOC) policy allows a prisoner to declare his cellmate an “enemy” and be removed from the cell if he fears for his safety. The prisoner is then placed on a restraint bench until a compatible cellmate is found, a single-person cell becomes available or the prisoner elects to return to the original cell. While on the restraint bench, bathroom breaks and small amounts of water are allowed but food is not provided per DOC policy.

Arthur E. Taylor, Jr., was confined at the maximum-security Jefferson County Correctional Center when he declared his cellmate an enemy and was removed from the cell on September 9, 2005.

Taylor was shackled to a metal restraint bench, where he remained until he was placed in a cell with a new cellmate on September 11. He was unable to sleep during the two days he ...

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, life-threatening injuries suffered while in the custody of the District of Columbia (D.C.) Department of Corrections (DOC). Lesesne was involved in an altercation on March 30, 2008 in which he was shot in the lower abdomen, causing neurological damage to his leg.

He was arrested and transported to a hospital where he remained in the custody of the D.C. Metropolitan Police for the next 48 hours. He was then taken into DOC custody but remained cuffed by his wrist and ankle to the hospital bed.

As a result of the injury to his leg, doctors prescribed physical and occupational therapies and directed Lesesne to walk in the hospital hallway. However, even after the doctors faxed their recommendations to the DOC, guards did not let Lesesne walk in the hallway and restrained movement of his injured leg.

When he was discharged from the hospital on April 8, 2008, guards ...

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 safety,” MDOC director Daniel H. Heyns said in a written statement to the Detroit Free Press. “The overwhelming majority of these employees do excellent work and help to make our communities safer.”

The burden on those employees has increased in recent years as the MDOC overhauled its parole system to release more prisoners as a result of budget reductions. The changes resulted in a decreased prison population, saving the MDOC millions of dollars and allowing it to close several facilities. [See: PLN, June 2010, p.13; April 2009, p.1].

However, three incidents led to scrutiny as to how the MDOC is supervising parolees and probationers. The first involved the robbery and brutal murder of Nancy Dailey, 80, in her Royal Oak home on November 20, 2011. She was discovered with her hands bound and her throat slit.

Alan Wood, 49, and Tonia Watson, 40, were charged with first-degree murder ...

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 negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

This means that the FTCA is only available to address acts or omissions by federal employees that constitute torts under state law. Constitutional violations are not actionable under the FTCA unless they are also torts. For example, deliberate indifference to serious medical needs, which is a constitutional violation under the Eighth Amendment, may also constitute the torts of medical malpractice or negligence.

The FTCA constitutes a limited waiver of the United States’ sovereign immunity, allowing claimants to sue the federal government; however, the FTCA does not apply to acts by federal ...

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 how the head of Delaware’s Department of Correction enlisted a drugstore owner-turned-bureaucrat to acquire pentobarbital, the sedative component of the state’s new three-drug execution protocol since production of sodium thiopental ceased in the U.S. in early 2011. [See: PLN, June 2011, p.1].

Delaware DOC Commissioner Carl Danberg reached out to Alan Levin, the state’s economic development director, knowing that Levin used to own the Happy Harry’s drugstore chain, which he sold in 2006 before becoming a state official. Aware that Levin had spent more than a decade cultivating connections in the pharmaceutical industry, Danberg asked him to make a few calls.

According to the emails obtained by the AP, in May 2011, Levin contacted Mike Kaufmann, CEO of the pharmaceutical division of Cardinal Health, one of the largest wholesale distributors of prescription drugs in the United States.

“While I know this is a bit ...

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 Kool-Aid.

The cell faintly stank of shit. Mentally ill prisoners and those made mentally ill by prolonged solitary confinement are driven to cut themselves and to try to throw their feces at guards.

In one of the Administrative Segregation cellblocks – pure solitary confinement – I heard undulating cries and saw shadowy faces behind the steel doors’ tiny windows.

The Maine State Prison “supermax,” or Special Management Unit, is an ugly place. Are my photos ugly enough? Trying to fit form to content, I used an old film camera and grainy-image-producing 400-speed, black-and-white film shot usually without a flash under fluorescent lights. There were big limitations. I was not supposed to photograph prisoners, and my tour was rapid. That said, I was, possibly, the first journalist to visit and photograph the supermax – after eight years of writing about it.

Super-harsh supermax (super-maximum-security) prisons and their central feature of ...

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 to the elimination of in-person visits.

“I think it’s the way of the future,” said Kane County, Illinois police commander Corey Hunger. “In the next 20 years, I think everyone will have it.”

At some jails, visitors can use video screens to communicate with prisoners in another part of the facility. Other systems allow people to conduct visits via the Internet from a remote location, including their own homes. Prisoners typically use video monitors set up in cell blocks or other designated areas; the visits are monitored and recorded. [See: PLN, July 2013, p.44; Sept. 2012, p.42; Nov. 2011, p.37; Jan. 2010, p.22].

But in Kane County and other jails, the installation of video systems spelled the end of in-person visits. Hunger said not having to screen visitors and escort them through the jail frees up guards to perform other duties. Officials also claim that ...

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 in “Operation: Game Over,” resulting in the closure of sex offenders’ gaming accounts or revocation of their online communications privileges. The move was an initiative of the Entertainment Software Association.

New York requires registered sex offenders to list all of their email addresses, screen names and similar online identifiers in order to limit their access to certain websites such as Facebook. Scheiderman said sexual predators had been using the voice and text chat features in online games to identify and lure potential victims.

“The Internet is the crime scene of the 21st century, and we must ensure that online video game platforms do not become a digital playground for dangerous predators,” he said. “That means doing everything possible to block sex offenders from using gaming systems as a vehicle to prey on underage victims.”

As one example, Richard J. Kretovic, a 19-year-old resident of Monroe County, New York, pleaded guilty ...

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 be a “waiver” of the defendants’ obligation to file an answer is not permitted by statute or rule.

In the case at issue, the defendants’ motion for leave to waive an answer was filed in response to the court’s order that they answer the complaint. The motion relied upon the language of 42 U.S.C. § 1997e(g)(1). The district court noted that that provision of the Prison Litigation Reform Act (PLRA) “allows defendants to conserve resources by waiving their right to reply to potentially frivolous or meritless claims.” It does not require the defendants to request a waiver to file an answer unless ordered to do so by the court upon a finding the claim has a reasonable chance of prevailing on the merits.

Once a district court orders an answer from the defendants they must comply, and the PLRA does not provide that their answer may ...

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 data system.

“I’m told an inmate, or inmates, were able to hack into the CORIS system,” said Mark Jordan, a former president of the guards’ union. “Once they are in there, they could have access to parole dates, sentencing information, programming schedules for inmates, staff information. And they could change any of that. They could delete [detainer] information from other states.”

The Corrections Information System (CORIS) was installed in 2008 by Abilis New England. “CORIS connects relevant stakeholders through a single electronic offender record and centralized database, thereby providing a holistic view of the offender’s status, history, and risk profile,” a news release stated when CORIS was installed.

When the cable was noticed on August 24, 2012, the DOC called the State Police to assist in the investigation. “It’s a really complex investigation,” said DOC spokesman Jeffrey Lyons. “We don’t know whether any data was compromised ...

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 that out after they learned that UNICOR, which runs prison industry programs for the BOP, was considering bidding on contracts for business that their companies already had. A public statement from U.S. Senator Mitch McConnell, who sits on the Senate Appropriations Committee, led UNICOR to change its mind.

Like many other initiatives of the federal government, UNICOR, formally known as Federal Prison Industries, Inc., started off as well-intentioned. Prisoners earning from $.23 to $1.15 an hour are trained to work in factories supervised by BOP staff, where in theory they learn job skills that will help them find employment following their release. However, UNICOR has become not only a job training program but a manufacturing behemoth that employs some 12,300 prisoners and made approximately $606 million in gross revenue in fiscal year 2012 – yet still reported a net loss of $28 million. [See: PLN, Nov. 2013, p ...

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 at the MCJ pending trial.

A month later, Haws was playing basketball with other prisoners at 9:30 a.m. During an argument, fellow prisoner Robert Dailey punched Haws in the jaw, knocking him unconscious and causing his head to hit the concrete floor. Dailey and the other prisoners fled.

Guards did not witness the altercation or see Haws lying unconscious on the basketball court. Approximately fifteen minutes later, Dailey and a few other prisoners returned to check on him.

They dragged Haws to the edge of the court and propped him up. He was barely conscious, vomiting and urinating on himself and bleeding from the nose. Unbeknownst to guards, one prisoner made several trips to the laundry room to replace Haws’ bloody clothing.

Guards did not notice Haws on the video monitor until 10:40 a.m. When they finally responded, he was disoriented, unresponsive and exhibiting signs of ...

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, but not sexual, relationship. Within a few months, however, Wood heard “rumors that Martin had gotten married.” She denied being married but Wood said he wanted to end the relationship.

Shortly thereafter, Martin entered Wood’s cell and “cupped her hand on [his] groin ... enough to excite [him].” Wood pushed her away and said “you need to back off on this.”

Wood again tried to end the relationship but Martin pursued him and subjected him to “aggressive pat searches” on several occasions. Wood went so far as to ask another guard for help, but Martin continued to pursue him.

After Wood ended the relationship, Martin again entered his cell and “grabbed ahold of [his] penis and started to stroke it.”

Martin continued to harass Wood after that incident, but he did not initially report her due to fear of retaliation. Eventually he did report Martin and was transferred to a ...

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, 2011 and 2012. Justin Eugene Shaw Young, who also participated in the scheme, pleaded guilty in August 2013 and received a mitigated sentence of 6 years. Borboa and Young offered kickbacks of about $1,000 to each prisoner whose ID was used in the tax scam.

California: On August 23, 2013, Robert Eugene Vasquez, 36, was sentenced to life in prison without the possibility of parole for the stabbing death of his neighbor, Bobby Ray Rainwater, Jr. Vasquez had been told by his mother that Rainwater was a child molester, though actually he had been required to register as a sex offender for an offense that did not involve a child. Vasquez attacked Rainwater in their mobile home park, punched him in the back of the head and then stabbed him until he was nearly decapitated.

California: A veteran prison guard at the California Men’s Colony was sentenced to 30 ...


 

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