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Prisoner Education Guide

Prison Legal News: April, 2014

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Volume 25, Number 4

In this issue:

  1. An Interview with Noam Chomsky on Criminal Justice and Human Rights (p 1)
  2. $2.25 Million Jury Verdict against LCS in Texas Prisoner Death Suit (p 16)
  3. From the Editor (p 16)
  4. Ohio: Attorney General May Not Increase Sex Offender’s Registration Requirements (p 17)
  5. The Inadequacy of Prison Food Allergy Policies (p 18)
  6. $15.5 Million Settlement for Mentally Ill Jail Detainee Held in Solitary Confinement (p 20)
  7. U.S. Supreme Court: District Courts Can Make Federal Sentences Consecutive or Concurrent to Future State Sentences (p 20)
  8. Kitchen Supervisor Gets Prison Time for Sexually Abusing Two Prisoners (p 20)
  9. Colorado Prisoner who Murdered Guard Gets Life Without Parole (p 22)
  10. Lowering Recidivism through Family Communication (p 24)
  11. Iowa: Parole Agreement Does Not Constitute Voluntary Consent that Justifies Warrantless Search (p 26)
  12. No Discipline for Oregon Prosecutor and Defense Counsel for Illegal Confinement of Mentally Ill Defendant (p 28)
  13. Update on Missouri Incarceration Reimbursement Act Case (p 28)
  14. Arkansas Suing Prisoners for Incarceration Costs (p 30)
  15. Montana: Hospitalized Prisoner Entitled to Continuance in Divorce Case (p 30)
  16. California Supreme Court: Challenge to Booking Fee Order Forfeited Due to Failure to Object in Trial Court (p 32)
  17. Texas: False Arrest and Malicious Prosecution Result in $411,865.18 Recovery (p 32)
  18. Study: TASER Shocks May Cause Fatal Heart Attacks (p 34)
  19. Texas Court Holds CCA is a Governmental Body for Purposes of Public Records Law (p 35)
  20. Mass Incarceration: The Whole Pie (p 36)
  21. New York Prisoner Secures Court Order for Visitation with Child (p 38)
  22. GPS Monitoring System in Los Angeles Plagued by False Alerts, Ignored Alarms (p 40)
  23. Placing Rival Gang Members in Same Cell Not Per Se Unconstitutional (p 40)
  24. Qualified Immunity Denied to Michigan Guard for Improper Strip Search of Amputee Prisoner (p 42)
  25. No Death Penalty for Maine Prisoner (p 42)
  26. The Redbook – A Manual on Legal Style (p 43)
  27. Court Awards $802,176 in Fees, Costs in PLN Censorship Suit Against Oregon County (p 44)
  28. Oregon Appellate Court Declines to Correct Unpreserved Sentencing Error Related to Restitution (p 44)
  29. New York Prison Officials Can Force-Feed Hunger Striking Prisoner (p 45)
  30. Ninth Circuit: Delay in Providing Dental Care May Constitute Deliberate Indifference (p 46)
  31. Burden-Shifting Jury Instruction Requires New Trial in Prisoner's Lawsuit (p 46)
  32. Eighth Circuit: Federal Sentence Consecutive to Later-Imposed State Sentence (p 47)
  33. Sexual Abuse by Oregon Jail Guard Nets Probation; Defense Attorney Blames Victim (p 48)
  34. Federal Court Must Give Reasons for Special Conditions of Supervised Release (p 50)
  35. Idaho Supreme Court Upholds Dismissal of Section 1983 Claims in Jail Suicide Case (p 50)
  36. Washington PRA Violations Result in Costs and Penalties (p 51)
  37. Prisoner Organ Transplants, Donations Create Controversy (p 52)
  38. Oklahoma Jailers Not Immune from Excessive Force Claims (p 54)
  39. News in Brief (p 56)

An Interview with Noam Chomsky on Criminal Justice and Human Rights

On February 5, 2014, Prison Legal News editor Paul Wright interviewed Noam Chomsky, 85, at his home in Lexington, Massachusetts. Professor Chomsky is the foremost dissident intellectual in the United States, and for decades has been a prominent critic of U.S. foreign policy, human rights abuses, imperialism and the media’s facilitation of same. He is also one of the world’s eminent linguists and has been a professor of linguistics at the Massachusetts Institute of Technology since 1955. He was arrested and jailed for anti-war activism in the 1960s.

The author of dozens of books on politics, media analysis, foreign policy and other issues, Professor Chomsky was also one of PLN’s earliest subscribers and has corresponded with Paul on various topics since the early 1990s. However, in his books, essays and interviews, Professor Chomsky has rarely addressed human rights abuses in the United States with respect to policing and prisons – until now.

While Professor Chomsky agreed to be interviewed by PLN, scheduling was difficult due to his extensive travel and speaking schedule. It turned out that the day of the interview was also the day a massive snowstorm hit Boston, and he did not come into work. He graciously ...

$2.25 Million Jury Verdict against LCS in Texas Prisoner Death Suit

by Matt Clarke

On October 24, 2012, a federal jury in Texas awarded $2.25 million to the estate and survivors of a prisoner who died at a facility operated by LCS Corrections Services (LCS), after finding the company was 100% at fault. The district court subsequently reversed its dismissal of § 1983 claims against LCS and granted a new trial as to those claims.

Mario A. Garcia was incarcerated at the Brooks County Detention Center (BCDC) in Falfurrias, Texas, owned and operated by LCS, when he died of a seizure on January 12, 2009. After Garcia was booked into BCDC, his wife delivered a supply of clonazepam, a prescription anti-anxiety medication he had been using for years, to the facility. BCDC officials received the medication but did not give it to Garcia because they allegedly had a policy of refusing to allow prisoners to take any controlled substances, even bona fide prescription medications.

Garcia began shaking badly later that day. He was taken to the emergency room, treated and returned to BCDC. The prison’s contract physician, Dr. Michael Pendleton, saw Garcia twice – the last time on January 8, 2009. After the second visit with Dr. Pendleton, Garcia’s condition ...

From the Editor

This month’s interview with Noam Chomsky is part of PLN’s ongoing series of interviews with notable people who have diverse views of the U.S. criminal justice system. Prior interviews have been conducted with well-known actor Danny Trejo, media mogul and millionaire Conrad Black, and wrongfully convicted former prisoner Jeff Deskovic. We hope that these interviews serve to further what passes for discussion and debate on this country’s criminal justice system in general and prisons in particular.

We still need to expand our circulation in order to keep our subscription rates as low as possible; since most publishing-related costs are fixed, the higher our circulation the lower our per-issue expenses for things like printing, postage and layout, which helps keep our costs – and thus our subscription rates – low.

How can you help? First, you can subscribe to PLN for four years and get a copy of The Habeas Citebook: Ineffective Assistance of Counsel for free! This $49.95 value is yours if you subscribe for four years or extend your existing subscription for four years. Second, if you know someone who would benefit from PLN, purchase a gift subscription for them. PLN makes a great gift, especially ...

Ohio: Attorney General May Not Increase Sex Offender’s Registration Requirements

In April 2013, an Ohio appellate court ruled that a sex offender, who was required by virtue of a California conviction to register his address annually for ten years, could not subsequently be indicted, after moving to Ohio and being reclassified under the Adam Walsh Act, for failing to register every 90 days.

Ansuri Ameem was convicted in California of sexual assault and pandering. Classified as a sexually-oriented offender under the former Megan’s Law, Ameem was required to register his address annually for ten years.

In July 2007, after moving to Ohio, that state’s attorney general reclassified Ameem as a Tier III offender under the Adam Walsh Act. The reclassification subjected Ameem to an increased obligation to register – specifically, every 90 days for life. Ameem failed to register as required and was indicted in July 2010.

After unsuccessfully moving to have the indictment dismissed on grounds that the Ohio attorney general’s reclassification was unconstitutional, Ameem pleaded no contest to failing to register.

On appeal, the Eighth Appellate District of the Court of Appeals held that the attorney general’s reclassification of Ameem from Megan’s Law to the Adam Walsh Act was invalid. Relying on Ohio Supreme ...

The Inadequacy of Prison Food Allergy Policies

by Jamie Longazel and Rachel Archer

Michael Saffioti was arrested on a misdemeanor marijuana charge and held at the Snohomish County Jail (SCJ) in Washington State. On the morning of July 2, 2012, he arrived at the center of his module where breakfast was being served. Because he had a severe dairy allergy, Saffioti examined very closely the pancake and oatmeal he was given. Video footage obtained by local news agency KIRO-7 showed him discussing his food with guards, servers and fellow prisoners. This was not the first time Saffioti was held at the SCJ, so his allergy was on record. Yet jail staff had brought no special diet trays to his module that morning; they instead simply removed the pancake from his tray and assured him the oatmeal would be safe to eat.

After taking just a few bites, Saffioti began to experience shortness of breath. Video footage showed him approaching a guard’s desk, where reports say he asked for his inhaler and to see a nurse. He was given the inhaler but his request for a nurse was denied, and shortly afterwards he was sent back to his cell. Once there, according to a subsequent lawsuit, he pressed ...

$15.5 Million Settlement for Mentally Ill Jail Detainee Held in Solitary Confinement

A mentally ill detainee who was placed in solitary confinement in a New Mexico county jail for nearly two years, without adequate medical or mental health care, accepted a $15.5 million settlement for violations of his civil rights.

Stephen Slevin, 59, served almost 22 months in solitary confinement between 2005 and 2007 at the Doña Ana County Detention Center in Las Cruces, New Mexico. On January 24, 2012, a federal jury awarded him $22 million. The award was upheld by a federal judge after county officials challenged it as being excessive, but Slevin decided in February 2013 to accept a $15.5 million settlement and end the legal battle without further appeals.

“It has been a long and hard fight to bring Mr. Slevin justice,” said one of his attorneys, Matthew Coyte. “This settlement, although very large, does not give back to Mr. Slevin what was taken from him, but if it prevents others from enduring the pain and suffering he was subjected to, then the fight has been worthwhile.”

Slevin’s ordeal began on August 24, 2005, when he was booked into the jail on charges of driving while intoxicated and receiving or transferring a stolen vehicle ...

U.S. Supreme Court: District Courts Can Make Federal Sentences Consecutive or Concurrent to Future State Sentences

On March 28, 2012, the U.S. Supreme Court held that a federal district court may impose a federal prison term that is consecutive to an anticipated future state court sentence. In February 2014, the Third Circuit ruled that a district court’s ability to impose such a sentence only applies at the time when the federal sentence is imposed.

Monroe Ace Setser was on probation for a drug charge when he was arrested in Texas on a new charge of possession with intent to deliver a controlled substance. After Setser was indicted on the new drug charge, the state moved to revoke his probation. A federal grand jury then indicted him on the federal offense of possession with intent to distribute 50 grams or more of methamphetamine, based on the same incident that had resulted in the new state drug charge.

This did not constitute double jeopardy based on the legal fiction that it is permissible to pursue state and federal charges for the same criminal conduct under the “dual sovereignty” doctrine.

Setser pleaded guilty to the federal charge and was sentenced to 151 months in prison. The federal judge made Setser’s sentence consecutive to the sentence he would receive ...

Kitchen Supervisor Gets Prison Time for Sexually Abusing Two Prisoners

A civilian prison employee’s sexual abuse of two prisoners at a federal facility in Phoenix, Arizona was made public after an FBI surveillance camera captured the lascivious details of their ménage à trois.

According to a rather explicit criminal complaint filed on August 29, 2012 in U.S. District Court, Carl David Evans, the kitchen supervisor at FCI-Phoenix, traded packs of cigarettes for oral sex with two male prisoners identified only as “J.I.” and “E.D.” Evans was charged with two counts of sexual abuse of a ward and one count of providing contraband.

Prison officials learned in June 2012 that Evans was “engaged in a sexual relationship” with at least one prisoner, according to FBI Agent Tyler Woods. Investigators hid a video camera in the food storage area in the kitchen where the alleged sex acts were taking place, and recorded Evans’ work shifts for an entire week.

Woods then reviewed the video and discovered footage showing Evans, J.I. and E.D. entering the storage area. E.D. was heard asking Evans and J.I. if they were “ready to suck some dick.” Evans locked the door, and the trio then had mutual fellatio ...

Colorado Prisoner who Murdered Guard Gets Life Without Parole

Last month, Prison Legal News reported that the parents of a slain Colorado prison guard did not want the prisoner who murdered him to face the death penalty. Edward Montour, who beat Lima Correctional Facility guard Eric Autobee to death in October 2002, was initially sentenced to death but that sentence was overturned in 2007.

Montour faced the death penalty again in a retrial, but Eric Autobee’s parents, Bob and Lola, who now oppose capital punishment, wanted to provide a victim impact statement to the jury urging them not to impose a death sentence.

“A lot of people think because I forgave him [Montour], I don’t want to hold him accountable or have him punished,” Bob Autobee stated. “That’s not true. People that do these things have to be punished, but death is not the answer.”

Eighteenth Judicial District Attorney George Brauchler objected to the Autobees’ request to provide a victim impact statement, arguing that such statements could only be for punitive and not mitigating purposes. [See: PLN, March 2014, p.24].

Before murdering Eric Autobee, Montour was serving a life sentence for killing his 11-week-old daughter, Taylor, which he claimed was an accident when she fell ...

Lowering Recidivism through Family Communication

There are currently 2.2 million people held in prisons and jails in the United States,1 and an estimated 95% of prisoners currently in custody will one day be released. Based on 2012 data, around 637,400 people are released annually from state and federal prisons.2

According to an April 2011 report by the Pew Center on the States, the average national recidivism rate is 43.3%.3 Based on that average rate, an estimated 276,000 released prisoners can be expected to recidivate each year, many committing new crimes and returning to prison.

This negatively impacts our communities in several ways, including the societal costs of more crime and victimization as well as the fiscal costs of reincarcerating ex-prisoners who commit new offenses – at an average annual cost of $31,286 per prisoner, according to a 2012 report by the Vera Institute.4

Studies have consistently found that prisoners who maintain close contact with their family members while incarcerated have better post-release outcomes and lower recidivism rates.

These findings represent a body of research stretching back over 40 years. For example, according to “Explorations in Inmate-Family Relationships,” a 1972 study: “The central finding of this ...

Iowa: Parole Agreement Does Not Constitute Voluntary Consent that Justifies Warrantless Search

Last year the Supreme Court of Iowa reversed a parolee’s conviction on drug charges, holding that his acceptance of a search condition in a parole agreement did not constitute voluntary consent, and therefore a warrantless, suspicionless search of his car was unreasonable and violative of his rights under the search and seizure clause of the state constitution.

While on parole in 2009, Isaac A. Baldon III was subjected to a search of his person, the motel room where he was staying and his car, all pursuant to a consent-to-search provision in the parole agreement that Baldon, like all Iowa parolees, was required to sign as a prerequisite to being released on parole. The police found a large quantity of marijuana in Baldon’s car and charged him with drug-related offenses.

Baldon moved to suppress the marijuana from the search of his vehicle, arguing that his signing of the parole agreement did not constitute voluntary consent to searches of his person or property. The district court denied the motion and found him guilty of the charges.

On appeal, the Iowa Supreme Court reversed the judgment. Analyzing the issue of consent on state constitutional grounds, the Court concluded, in a thoughtful opinion, that ...

No Discipline for Oregon Prosecutor and Defense Counsel for Illegal Confinement of Mentally Ill Defendant

Although the Oregon State Bar initially decided to pursue disciplinary charges against the district attorney for Washington County and a criminal defense attorney who represented a mentally ill defendant, for causing the defendant’s illegal confinement, the charges were later dropped.

Donn Thomas Spinosa stabbed his wife to death on May 10, 1997, reportedly because she wouldn’t give him money to play video poker. He was found unable to aid and assist in his defense and sent to the Oregon State Hospital (OSH) for mental health treatment.

Under Oregon law, Spinosa could be held at OSH for no more than three years. When he was still not competent to stand trial in 2000, the criminal charges against him were dismissed and he was civilly committed.

The civil commitment order was renewed annually until 2010, when Washington County District Attorney Bob Hermann claimed that OSH officials told him they were considering discharging Spinosa. An OSH official denied his claim.

In October 2010, Hermann refiled aggravated murder charges against Spinosa, who was again found unable to aid and assist in his defense and returned to OSH.

Hermann and Spinosa’s defense counsel, Robert B. Axford, then filed a joint motion asking Washington County Circuit ...

Update on Missouri Incarceration Reimbursement Act Case

Prison Legal News previously reported a decision by the Bankruptcy Appellate Panel for the Eighth Circuit, which held that a Missouri bankruptcy court was correct in concluding that state prison officials did not violate a discharge injunction by collecting money from a prisoner’s account for incarceration costs that accrued after the injunction was filed.

In 2009, Missouri prisoner Zachary A. Smith was initially ordered to pay $87,830.13 to cover the costs of his incarceration through March 2007 under the Missouri Incarceration Reimbursement Act (MIRA), plus future costs that accrued until his release from custody. He filed a Chapter 7 bankruptcy petition in 2010 and received a discharge in March 2011, effectively voiding the MIRA judgment.

In September 2012, however, prison officials seized funds deposited into Smith’s prison account for costs that had accrued after he filed for bankruptcy. Smith sought a contempt ruling from the bankruptcy court, alleging the state had violated the discharge injunction. The bankruptcy court agreed that the MIRA judgment was void with respect to costs accrued as of the date of the bankruptcy filing, but held the judgment remained valid as to future incarceration reimbursement costs. The Eighth Circuit affirmed on February 5, 2013 ...

Arkansas Suing Prisoners for Incarceration Costs

Arkansas officials are suing prisoners under the State Prison Inmate Care and Custody Reimbursement Act (Act), seeking reimbursement for the costs of their incarceration by obtaining court orders and seizing money from their prison trust accounts.

For example, a state court entered an order requiring prisoner Michael R. MacKool to pay reimbursement costs, and the state sought a similar judgment against prisoner Deral Plunk. Both were subject to orders that confiscated the funds in their accounts for placement in a court account pending the outcome of the litigation.

MacKool is serving a cumulative 60-year sentence for first-degree murder and theft of property. In October 2010, Arkansas filed a petition against him in state court under the Act. Following a show-cause hearing, $5,016.61 in MacKool’s prison account was ordered deposited into the state treasury; he appealed that judgment, which was affirmed. See: MacKool v. State, 2012 Ark. 287 (Ark. 2012).

On rehearing, he argued the court had incorrectly held that his lack-of-due-process argument had not been presented to the circuit court. Next, he claimed money he had received from his mother was not part of his “estate” as that term is used in the Act. Finally, he argued his ...

Montana: Hospitalized Prisoner Entitled to Continuance in Divorce Case

The Montana Supreme Court held on March 5, 2013 that refusing to grant a hospitalized prisoner’s motion for continuance of a divorce trial was an abuse of discretion.

David and Lori Eslick were married on August 15, 2005. In December 2010, David began serving a sentence in the Montana State Prison (MSP), and Lori filed for divorce.

David was unrepresented and appeared telephonically at all court hearings. A June 12, 2012 pretrial conference and June 25, 2012 trial were scheduled. David failed to appear at the pretrial conference, which was rescheduled for June 19, 2012.

David’s failure to appear or communicate with opposing counsel and the court was due to an unexpected medical emergency. On May 5, 2012, he was hospitalized for amputation of septic toes and part of his foot as a result of diabetes. Due to complications he remained hospitalized until June 11, 2012, then was confined in the MSP infirmary for the following week.

David did not receive his mail and could not attend court proceedings during this time, or schedule phone calls with the trial court. On June 18, 2012 he mailed a motion to the court seeking a 60-day continuance.

When David did not appear ...

California Supreme Court: Challenge to Booking Fee Order Forfeited Due to Failure to Object in Trial Court

On April 22, 2013, the Supreme Court of California, resolving a conflict among lower state courts, held that a defendant who fails to contest a jail booking fee order when it is imposed forfeits the right to challenge the order on appeal.

After pleading no contest to being a convicted felon in possession of a firearm, Antoine J. McCullough was sentenced to a state prison term of four years. When imposing the sentence, the trial court also ordered McCullough to pay a jail booking fee of $270.17.

On appeal, McCullough argued that although he had not objected when the trial court imposed the booking fee, he was entitled to challenge it for the first time on appeal because the evidence was insufficient to support a finding that he was able to pay the fee.

The Court of Appeal affirmed the booking fee order, holding that McCullough’s failure to object in the trial court meant he had forfeited his right to challenge the imposition of the fee on appeal. The California Supreme Court granted review to resolve a split among the appellate courts on this question.

The Supreme Court initially held, as a matter of statutory construction, that the state ...

Texas: False Arrest and Malicious Prosecution Result in $411,865.18 Recovery

A Texas probationer subjected to false arrest and malicious prosecution has been awarded $169,000 in damages plus attorneys’ fees and costs.

Thomas Hannon, 37, unemployed and on probation, had an outstanding arrest warrant for probation revocation. Dallas police knew he was at a local hotel, and on August 1, 2007, police officers arrested several people, including Hannon, at the hotel in connection with a black bag that contained drugs, a .357 revolver and materials related to identity theft. Hannon was jailed on gun, drug and identity theft charges. He was exonerated and released more than 10 months later.

Hannon sued several police officers, but only his claims against officers Jerry Dodd, David Nevitt and Randy Sundquist survived to reach trial. The evidence showed that when the officers arrived at the hotel, Hannon had been waiting for a ride. He was not part of the initial arrest and began walking down the highway.

Police officers were notified that Hannon was walking away, and pursued and arrested him. Prior to the arrest, Hannon had been with a friend. The friend was carrying the black bag with the gun and drugs, but Hannon contended he was never in possession of the bag ...

Study: TASER Shocks May Cause Fatal Heart Attacks

by Matt Clarke

A study involving eight people who lost consciousness immediately after being shocked by a TASER X26 – the most common electronic control device (ECD) used by police, corrections agencies and the military – concluded that ECD shocks can induce fatal cardiac arrest by causing cardiac “capture” and ventricular tachycardia/ventricular fibrillation (VT/VF). Seven of the eight persons profiled in the study died while the eighth suffered memory impairment after receiving a near-fatal shock, according to an article published in Circulation, the journal of the American Heart Association.

The eight subjects of the peer-reviewed study were all male, ranging from 16 to 44 years old. Six were under the age of 25. All were struck in the chest with barbs from a TASER X26, a handgun-shaped weapon that fires the barbs with attached conductive wires using compressed nitrogen. The device delivers an initial 5,000-volt shock, followed by rapid micro-pulsing that is designed to mimic the electrical signals used by the brain to communicate with the muscles. The standard shock cycle lasts five seconds but can be shortened or repeated by the user.

The study found that a TASER shock “can cause cardiac electric capture and provoke ...

Texas Court Holds CCA is a Governmental Body for Purposes of Public Records Law

On March 19, 2014, a state district court in Travis County, Texas held that Corrections Corporation of America (CCA), the nation’s largest for-profit prison company, is considered a “governmental body” for purposes of the state’s Public Information Act and therefore subject to the Act’s “obligations to disclose public information.”

The court entered its ruling on a motion for summary judgment filed by Prison Legal News, which had brought suit against CCA in May 2013 after the company refused to produce records related to the now-closed Dawson State Jail in Dallas – including reports, investigations and audits regarding CCA’s operation of the facility. [See: PLN, June 2013, p.46]. Such records would have been made public had the jail been operated by a government agency.

“This is one of the many failings of private prisons,” said PLN managing editor Alex Friedmann. “By contracting with private companies, corrections officials interfere with the public’s right to know what is happening in prisons and jails, even though the contracts are funded with taxpayer money. This lack of transparency contributes to abuses and misconduct by for-profit companies like CCA, which prefer secrecy over public accountability.”

CCA currently operates nine facilities in Texas ...

Mass Incarceration: The Whole Pie

A Prison Policy Initiative briefing

by Peter Wagner and Leah Sakala

Wait, does the United States have 1.4 million or more than 2 million people in prison? And do the 688,000 people released every year include those getting out of local jails? Frustrating questions like these abound because our systems of federal, state, local and other types of confinement – and the data collectors that keep track of them – are so fragmented. There is a lot of interesting and valuable research out there, but definitional issues and incompatibilities make it hard to get the big picture for both people new to criminal justice and for experienced policy wonks.

On the other hand, piecing together the available information offers some clarity. This briefing presents the first graphic we’re aware of that aggregates the disparate systems of confinement in this country, which hold more than 2.4 million people in 1,719 state prisons, 102 federal prisons, 2,259 juvenile correctional facilities, 3,283 local jails and 79 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers and prisons in U.S. territories.1

While the numbers in each slice of this pie ...

New York Prisoner Secures Court Order for Visitation with Child

The New York Court of Appeals upheld a lower court’s ruling that granted an incarcerated father visitation rights with his three-year-old child. The Court held the lower court had properly applied a legal standard that presumes in favor of visitation and considers whether that presumption is rebutted by evidence showing visits would be harmful to the child.

The petitioner, New York state prisoner Shawn G. Granger, acknowledged paternity of a child prior to his imprisonment. He sought an order under the Family Court Act allowing visitation after the mother refused to bring the child to see him in prison.

The family court noted that state law presumes a child’s best interest is served by visits with a non-custodial parent, and “the fact that such parent is incarcerated is not an automatic reason for blocking visitation.” The court found that Granger had been involved in the child’s life prior to incarceration and had acted to maintain the relationship after he went to prison. Further, the court determined the child would not be harmed by travel to the prison and thus ordered periodic four-hour visits. The Appellate Division affirmed.

The Court of Appeals rejected the mother’s argument that the family court ...

GPS Monitoring System in Los Angeles Plagued by False Alerts, Ignored Alarms

Los Angeles County’s GPS monitoring system, designed to keep track of high-risk probationers, has overwhelmed probation officers with thousands of false alerts each day – so many that some officers simply ignore them. As a result, dozens of probationers have been able to roam unmonitored. In some cases, even when probationers removed their monitoring devices, the removal was not discovered for lengthy periods of time.

GPS monitors are used to track the highest-risk probationers and parolees, including sex offenders. A massive shift of prisoners from state prisons to county jails under California’s “realignment” legislation has led some counties to release hundreds of low-level offenders on electronic monitoring as a way to cut costs and reduce jail overcrowding.

The GPS system in Los Angeles County picks up satellite signals and transmits the data over cellular networks to a central computer. The system is designed to send an alert to a probation officer under a variety of circumstances; for example, if a probationer tries to remove the monitor or enter a designated prohibited area, or if the GPS batteries run down. The GPS devices send alerts for a number of routine reasons, too, such as when the signal is blocked by a ...

Placing Rival Gang Members in Same Cell Not Per Se Unconstitutional

The Ninth Circuit Court of Appeals applied the harmless error test in finding that a district court’s late Rand summary judgment notice did not deprive a prisoner of substantial rights. Additionally, the appellate court held prison officials were not deliberately indifferent to a substantial risk of violence by placing two rival gang members in the same cell.

This case involved the appeal of a Hawaii federal district court’s grant of summary judgment to Corrections Corporation of America and CCA guards at the Saguaro Correctional Center (SCC) in Arizona. The suit was brought by Hawaii state prisoner Keone Labatad, who was housed at SCC and assaulted by another prisoner on July 23, 2009.

Three days earlier, Labatad, a member of the La Familia gang, got into a fight with Howard Giddeons, a member of the USO Family gang. Both told guards that the fight was not gang-related and they had shook hands afterwards. Following procedure, both were placed in administrative segregation.

Labatad was put in a cell with Shane Mara, a USO Family gang member. On the day of the assault, Mara waited until Labatad was in hand restraints in preparation for leaving the cell; he then hit Labatad in the ...

Qualified Immunity Denied to Michigan Guard for Improper Strip Search of Amputee Prisoner

The Sixth Circuit Court of Appeals affirmed the denial of qualified immunity to a Michigan prison guard who allegedly strip searched a prisoner without a legitimate penological reason for doing so. The appellate court also vacated the denial of qualified immunity to a warden who sanctioned the prisoner’s placement in isolation, remanding for consideration of the warden’s qualified immunity defense.

When Martinique Stoudemire entered Michigan’s prison system at the age of 23 in July 2002, she had a lengthy documented history of health problems. Absent proper care, she was at significant risk of experiencing kidney and liver damage, heart attacks, amputations and chronic pain. After arriving at the Huron Valley Women’s Correctional Facility (Huron), her health quickly deteriorated.

By the time she was paroled in 2007, Stoudemire had undergone three amputations, eventually losing both legs below the knee. She attributed her health complications to the failure of prison staff, nurses and associated doctors to provide adequate medical care. The appeal in her lawsuit focused on her final amputation in December 2007, when she contracted a MRSA infection and was quarantined in Huron’s segregation unit. [See: PLN, May 2007, p.1].

Michigan Department of Corrections (MDOC) policy provides for prisoners with ...

No Death Penalty for Maine Prisoner

In 2008, within a supposedly high-security prison in the giant federal correctional complex in Florence, Colorado, Gary Watland, a “boarder” from Maine, murdered another prisoner, white supremacist Mark Baker.

After five and a half years – and after, probably, millions in taxpayer-paid legal costs, including for his defense team – Watland, the only Maine prisoner facing a possible death penalty, saw federal prosecutors in Denver on February 5, 2014 accept his offer to spend life behind bars without the possibility of parole.

However, Watland, 51, already had accumulated enough time to spend life in prison. He had been placed in the federal system after being sentenced to 35 years for a 2006 escape attempt at the Maine State Prison, in Warren, where he was serving 25 years for killing a drinking buddy in 2004.

At Warren, Watland had plotted with his wife to have her smuggle a gun behind her belt buckle into the prison visitors’ room, where he allegedly planned to kill guards and anyone else in his way during the breakout. After a prisoner tipped off authorities, Susan Watland was apprehended with the loaded gun in the parking lot.

In Colorado, Watland snuck up on Baker while he ...

The Redbook – A Manual on Legal Style

by Bryan Garner (Thomson West, 2nd Ed., 2006). 510 pages (spiral bound), $15.00.

Book review by John E. Dannenberg

The Redbook is a comprehensive reference manual that provides guidance with every facet of preparing legal documents. Reviewed by judges and attorneys, the Redbook authoritatively instructs litigants in the mechanics of writing (e.g., punctuation, spelling, citations, footnotes); grammar (all parts of speech, “legalese,” troublesome words); and preparing specific documents such as business letters, case briefs, affidavits, pleadings and motions. The detailed table of contents – 24 pages, not included in the 510 page count – is thoroughly indexed to help locate answers to your questions without time-consuming searches.

The Redbook is much more than a reference tool, though. Its bold-faced head notes draw your eye quickly to important subjects. Short tutorial paragraphs follow, educating you about each sub-category within a given topic. This tutorial design provides a superb self-instruction course on English language writing, independent of its focus on legal writing. This text is recommended as the single reference book (beyond a dictionary or thesaurus) necessary for any serious incarcerated writer.

Have you ever stopped to ponder whether you’re inaptly (or ineptly) using an incorrect word? Is it ...

Court Awards $802,176 in Fees, Costs in PLN Censorship Suit Against Oregon County

In March 2014, a U.S. District Court ordered Columbia County, Oregon to pay $763,803.45 in attorney’s fees and $38,373.01 in costs in a lawsuit raising claims of illegal censorship at the Columbia County Jail.

Prison Legal News had filed suit against Columbia County and Sheriff Jeff Dickerson in January 2012 after jail employees rejected PLN’s monthly publication and letters mailed to prisoners at the facility. Further, the jail refused to provide notice or an opportunity to appeal the censorship of PLN’s correspondence. [See: PLN, March 2013, p.50].

The Columbia County Jail rejected PLN’s publication and letters pursuant to a policy that only allowed prisoners to send and receive mail in the form of postcards. Further, the jail did not allow magazines. In April 2013, following a bench trial, the district court entered judgment for PLN and prohibited enforcement of the policy – the first time that a jail’s postcard-only policy has been struck down as unconstitutional following a trial on the merits. [See: PLN, June 2013, p.42].

During the litigation, the county admitted “that inmates have a First Amendment right to receive magazines and inmates and their correspondents have a Fourteenth Amendment right ...

Oregon Appellate Court Declines to Correct Unpreserved Sentencing Error Related to Restitution

In May 2013, the Oregon Court of Appeals agreed that a trial court had committed plain error when it recommended that a defendant pay restitution in an amount to be determined by the Board of Parole and Post-Prison Supervision (Board). The appellate court refused to correct the error, however, because the defendant did not object before the trial court.

Ramon E. Coronado was convicted of three assault charges. At a January 25, 2010 sentencing hearing on two of the convictions, the state requested restitution of $5,931.79 to the victim and $38,676.90 to the victim’s insurance company. Coronado’s attorney said “No objection.” During sentencing on the remaining conviction the following month, the court stated, “I’m going to recommend ... that [defendant] make restitution to the victim in this case in an amount to be determined by the [Board].”

Despite having failed to object to the second restitution order, Coronado argued that the Court of Appeals should exercise its discretion to review the order as plain error under Oregon Rule of Appellate Procedure 5.45(1).

The appellate court recognized that Coronado “correctly points out – and the state concedes – that no statute authorizes the court ...

New York Prison Officials Can Force-Feed Hunger Striking Prisoner

The New York Court of Appeals, the state’s highest court, held that a hunger striking prisoner’s rights were not violated by a judicial order allowing the state to feed him by nasogastric tube to preserve his life.

The Court’s decision labeled New York state prisoner Leroy Dorsey a “serial hunger striker.” Indeed, Dorsey went on a hunger strike three times in 2010, in an effort to obtain a transfer to another facility and bring attention to his claims of abuse and mistreatment.

Dorsey began one of the hunger strikes in October 2010; a month later he had lost 11.6% of his body weight. The New York Department of Corrections and Community Supervision (DOCCS) sought an order to insert a nasogastric tube and take other steps to hydrate him.

At a hearing on the petition, the DOCCS submitted testimony indicating that Dorsey was at imminent risk of starving to death or experiencing “a fatal cardiac arrhythmia due to electrolyte and fluid imbalance.” Dorsey opposed the petition, arguing he was not suicidal and the DOCCS had no authority to interfere with his hunger strike protest.

The Supreme Court granted the DOCCS’ petition. Following that decision, Dorsey voluntarily consumed a ...

Ninth Circuit: Delay in Providing Dental Care May Constitute Deliberate Indifference

In an unpublished ruling, a Ninth Circuit Court of Appeals panel reversed in part a district court’s grant of summary judgment to prison officials who, a prisoner alleged, were deliberately indifferent to his serious medical needs.

In 2008, Nevada prisoner Martinez Aytch filed numerous requests for dental treatment for a “rotten” tooth that was causing him “awful” and “unbearable” pain. Nearly six weeks after filing an informal grievance alerting prison officials to his submission of five medical “kites,” Aytch received pain medication and antibiotics but still had not seen a dentist. His informal grievance was denied.

Aytch then filed a § 1983 complaint alleging that prison officials had been deliberately indifferent to his dental needs; he also alleged they were deliberately indifferent to his vision problems. The district court granted summary judgment in favor of the prison officials, and Aytch appealed.

Noting that Aytch’s vision problems had been addressed when he received eyeglasses, the Ninth Circuit affirmed the grant of summary judgment with respect to that issue.

Relying on precedent, however, such as Hunt v. Dental Dep’t, 865 F.2d 198 (9th Cir. 1989), the appellate court held that Aytch had raised a triable issue as to whether or ...

Burden-Shifting Jury Instruction Requires New Trial in Prisoner's Lawsuit

The Seventh Circuit Court of Appeals has ordered a new trial in a civil rights action that alleges a prisoner was subjected to improper strip searches to humiliate him, then was subjected to an “especially protracted, gratuitous and humiliating strip search” in retaliation for having filed grievances complaining about the earlier searches.

The Court of Appeals had previously reversed an Illinois district court’s grant of judgment as a matter of law to the defendants. See: Mays v. Springborn, 575 F.3d 643 (7th Cir. 2009). Following remand, the case went to trial and the jury returned a verdict in favor of the defendants. The plaintiff, Tiberius Mays, formerly incarcerated at the Illinois state prison at Stateville, filed another appeal arguing that he was prejudiced by the instructions and special interrogatories submitted to the jury.

Mays’ attorney had failed to object to the instructions and interrogatories. As such, the appellate court said it could reverse only if there was “plain error” – meaning error that was both indisputable and likely to have influenced the outcome of the case.

The appellate court found misleading an interrogatory related to an Eighth Amendment claim that asked the jury to state whether each defendant did ...

Eighth Circuit: Federal Sentence Consecutive to Later-Imposed State Sentence

On June 6, 2013, the Eighth Circuit Court of Appeals held that a prisoner was not entitled to credit toward his federal sentence for time already served on state charges.

In March 2007, Charles Lee Elwell was arrested in Iowa. A federal indictment was issued against him several days later; Elwell was transferred to federal custody and the state court stayed its prosecution until the federal charges were resolved.

Elwell pleaded guilty to the federal charges and was sentenced to 66 months in prison in November 2007. The district court did not address whether the federal sentence would run concurrent or consecutive to any yet-to-be-imposed state sentence, as permitted by Setser v. United States, 132 S.Ct. 1463 (2012). [See related article in this issue of PLN].

Elwell was then returned to Iowa’s custody and sentenced to two concurrent five-year prison terms. The state court expressed its intent to impose the state sentence concurrent with the already-imposed federal sentence.

Later discovering that Elwell’s state and federal sentences were not concurrent, however, the state court resentenced Elwell to time served on February 6, 2009. As a result, Elwell’s state sentence ended that day and he was transferred to the federal prison ...

Sexual Abuse by Oregon Jail Guard Nets Probation; Defense Attorney Blames Victim

A former Oregon jail guard was sentenced to probation for sexually abusing a female prisoner after pleading guilty to a misdemeanor charge; his defense attorney blamed the incarcerated victim while the prosecutor defended the light sentence. The guard, Eddie James Miller, 60, was later accused of sexually harassing a co-worker.

As previously reported in PLN, Miller’s 21-year career at the Inverness Jail in Portland, Oregon came to an end when he was accused of walking in on a 34-year-old female prisoner as she was using the bathroom in the jail’s medical unit and forcing her to perform oral sex on him on January 9, 2012 [See: PLN, April 2012, p.1].

The distraught prisoner immediately reported the incident to detectives, according to Mike Schults, a chief deputy with the Multnomah County Sheriff’s Office.

Authorities said the woman’s DNA was found on Miller, and she testified before a grand jury. On February 29, 2012, Miller was indicted on charges of official misconduct in the first degree and custodial sexual misconduct in the first degree.

The latter offense is a felony when an Oregon corrections employee or contractor engages in sexual intercourse with a prisoner; all other sexual contact constitutes the misdemeanor ...

Federal Court Must Give Reasons for Special Conditions of Supervised Release

The Sixth Circuit Court of Appeals has reversed a district court’s imposition of four special conditions of supervised release, due to the court’s failure to explain its reasons for imposing them.

Rashan R. Doyle was convicted in New York of attempted sexual abuse in the first degree; as a result of that qualifying felony conviction, the Sex Offender Registration and Notification Act required him to register as a sex offender. When Doyle moved to Tennessee, however, he failed to register.

Doyle pleaded guilty to a charge of failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). A federal district court in Tennessee sentenced him to 37 months in prison followed by ten years of supervised release, plus a $3,000 fine.

The term of supervised release included four special conditions that prohibited Doyle from possessing any pornography, even legal pornography; having direct or indirect contact with any child under eighteen, including loitering near school yards, playgrounds, swimming pools, arcades or other places frequented by children; using sexually-oriented telephone or computer-based services; and possessing or using a computer with access to any “on-line service” or other forms of wireless communication without the approval ...

Idaho Supreme Court Upholds Dismissal of Section 1983 Claims in Jail Suicide Case

The Idaho Supreme Court has affirmed a lower court’s dismissal of § 1983 claims stemming from the death of a detainee who committed suicide at the Ada County Jail (ACJ).

On September 28, 2008, Bradley Munroe was arrested for robbery. He was hospitalized because he was intoxicated, uncooperative and exhibiting odd behavior. Munroe claimed he would commit suicide if released, but the hospital cleared him and he was transported to ACJ.

During the booking process, Munroe was screaming, being rowdy and not making sense. Given his bizarre behavior, booking was suspended until the next morning and he was placed in a holding cell for observation.

James Johnson, a psychiatric social worker at the jail, assessed Munroe’s suicide risk. Johnson concluded that Munroe’s risk level was insufficient to justify admitting him to ACJ’s Health Services Unit (HSU).

After Johnson’s assessment, Munroe answered some suicide risk questions in the affirmative during the booking process. Guards did not contact staff in the HSU, however, based on Johnson’s evaluation.

Upon his request, Munroe was held in a single cell in protective custody. Guards were required to conduct well-being checks every 30 minutes.

At around 9 a.m. on September 29, 2008, Munroe’s mother, Rita ...

Washington PRA Violations Result in Costs and Penalties

The Washington Court of Appeals, Division Two, held on July 30, 2013 that a state agency violated Washington’s Public Records Act (PRA) by failing to respond to a prisoner’s request within the statutory time limit and by redacting information not exempt from disclosure. The appellate court instructed the lower court to determine on remand the amount of costs and penalties to be awarded as a result of the violations.

On July 20, 2009, Monroe Correctional Complex prisoner Derek E. Gronquist sent a PRA request to the Washington State Department of Licensing (DOL) for the master business license application of a specified company.

The DOL failed to respond within five days in violation of the PRA. When the agency responded to Gronquist’s request on July 31, 2009, it provided the requested document but “redacted much of the application without providing a statutory basis for the redactions.”

Gronquist filed suit in state court, alleging that the DOL had violated the PRA by providing a redacted copy of the application. Following an inspection of the redacted information, the trial court granted summary judgment to the DOL, holding that the redacted material was not subject to disclosure but protected as confidential under Washington ...

Prisoner Organ Transplants, Donations Create Controversy

Prison officials in several states are mulling over two sides of the same coin with respect to organ transplants for prisoners: first, the eligibility and cost of such medical procedures, and second, whether prisoners should be allowed to donate their organs.

Prisoners in Need of Organ Transplants

In Rhode Island, a liver transplant performed on a 27-year-old prisoner left officials defending the cost of the life-saving operation.

A spokeswoman for the Rhode Island Department of Corrections (RI DOC) said Jose Pacheco, who is serving a 6½-year sentence for robbery, became the first prisoner in the state to receive a liver transplant. The August 1, 2012 operation was performed in Boston because Rhode Island hospitals don’t currently perform such transplants.

The procedure can cost up to almost $1 million, with the state required to pick up 40% of the bill, according to court precedent.

But the RI DOC said in a statement that it was unclear how much of Pacheco’s hospital bills the state will actually pay because it’s possible he qualified for Social Security benefits before he was incarcerated. In that case, Medicaid would cover about 50% of the cost.

“To date, the Department has paid only for the ...

Oklahoma Jailers Not Immune from Excessive Force Claims

The Oklahoma Supreme Court has held that jail officials are not immune from liability for excessive force claims under the Oklahoma Governmental Tort Claims Act (OGTCA).

On May 17, 2011, Daniel Bosh was detained at the Cherokee County Detention Center for failure to pay a traffic ticket. Video surveillance showed him standing at the booking desk with his hands cuffed behind his back.

Bosh reportedly complained to guard Gordon Chronister, Jr. that his handcuffs were too tight; in response, Chronister grabbed him from behind and slammed his head onto the booking desk. He then placed Bosh’s head under his arm and fell backwards, causing Bosh to strike the top of his head on the floor.

According to the video footage, other guards quickly joined the attack. They moved Bosh to a shower area outside the camera’s view, where they continued to assault him for an undisclosed period of time.

“The video speaks for itself,” said Bosh’s attorney, Mitchell Garrett.

Guards then left Bosh to languish in a cell without medical treatment for two days before taking him to a local hospital. Having suffered fractured vertebrae, Bosh required surgery to fuse several discs along his spinal cord.

Chronister later claimed ...

News in Brief

Alabama: Carbon Hill Mayor James “Pee Wee” Richardson, 61, was arrested on September 19, 2013 on multiple charges related to sexually abusing four prisoners at the city’s municipal jail; he was released eight days later after posting a $250,000 property bond. In addition to the criminal charges, Richardson faces a civil lawsuit filed by a former prisoner who claims he took her into his office and groped her. The civil suit includes 11 counts of alleged wrongdoing by Richardson or the city, and seeks compensatory, statutory and punitive damages as well as attorney’s fees.

Angola: A cell phone video, which went viral on the Internet, showed several Angola prison guards kicking prisoners and beating them with sticks, then laughing as they left them bleeding and crying on the floor. Amnesty International called the incident shocking and urged the government to prosecute the guards. In a rare reaction from one of Africa’s most authoritarian governments, on September 27, 2013, Angola officials suspended 16 prison guards and firemen in connection with the brutal attack. The prison’s director was among those suspended, and the Interior Ministry said criminal charges would likely follow.

Arizona: A Maricopa County jail employee was murdered in his ...


 

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