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Prison Legal News: June, 2014

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Volume 25, Number 6

In this issue:

  1. Consequences of California’s Realignment Initiative (p 1)
  2. Ninth Circuit Revives Prison Trust Account Seizure Claim; Disputed Ownership Requires Due Process Protections (p 10)
  3. From the Editor (p 12)
  4. Florida Prisoner Awarded $1.2 Million for Burn Injuries (p 13)
  5. Are We Really Witnessing the End of Mass Incarceration? (p 14)
  6. Lawsuits Challenge Conditions at Tennessee Jail; Five Charged in Bribery and Smuggling Scheme (p 19)
  7. Jails Face Backlash, Class-action Lawsuits Over Debit Card Fees (p 20)
  8. Despite Reforms, Juvenile Offenders in Texas Remain Endangered (p 22)
  9. Ex-football Star Exonerated a Decade after Rape Conviction (p 24)
  10. U.S. Citizens without Remedy in Military Torture Case (p 26)
  11. Scared Straight Programs Remain Popular Among Parents Despite Warnings (p 28)
  12. Seventh Circuit: Atheism Considered a Religion; Survey of Prisoner Interest Required (p 30)
  13. Amount of Drugs a Factor for Departure Sentence in Kansas Prison Contraband Conviction (p 31)
  14. Utah Prisoner Awarded $200 for Violation of Religious Rights (p 32)
  15. California’s Lethal Injection Protocol Deemed Invalid by State Court (p 34)
  16. Oregon Garnishment Exemption Protects Funds in Prisoners’ Accounts (p 34)
  17. Second Circuit: RLUIPA Disallows Individual Capacity Suits (p 36)
  18. Ninth Circuit: Heck Allows § 1983 Parole Condition Challenges (p 36)
  19. California: Lack of Insight Cannot be Inferred when Prisoner Accepts Responsibility for Crime and Expresses Genuine Remorse (p 38)
  20. Washington Appellate Court Addresses Right to Public Hearings in Civil Cases (p 38)
  21. Arkansas Jail Prisoner Can Proceed on Failure to Protect Claim Against Guard (p 39)
  22. 5.85 Million People Disenfranchised in Supposedly Democratic America (p 40)
  23. Bureau of Prisons Mistakenly Served Meat Intended as Pet Food (p 42)
  24. European Court of Human Rights Ruling Rebukes U.S. Prison System (p 42)
  25. DOJ Intervenes in Class-action Suit Challenging New Orleans Jail Conditions; Consent Judgment Entered (p 44)
  26. Florida Guards Sentenced in Bribery Scheme (p 46)
  27. D.C. Circuit Reinstates Prisoner’s FOIA Suit (p 46)
  28. CCA Guard Killed During Riot was on Prisoners’ “Hit List” (p 48)
  29. Cook County Detainee’s Suit Alleging Deliberate Indifference to Safety Survives Summary Judgment (p 49)
  30. Prison Officials Praise Industry Programs Despite Downsides (p 50)
  31. Ohio Community Corrections Program Hires Former Prisoners to Work at Supermax (p 51)
  32. Nebraska County Attorney’s Conviction Reversed for Theft from Pretrial Diversion Program (p 52)
  33. Seventh Circuit: Jail Social Worker Ignored Detainee’s Suicide Risk (p 52)
  34. Mandamus Petition May Constitute Prison Conditions Litigation in Pennsylvania (p 53)
  35. For Sale: New York Lakefront Property with Garage, Pig Farm and 736 Prison Cells (p 54)
  36. News in Brief (p 56)

Consequences of California’s Realignment Initiative

Consequences of California’s Realignment Initiative

by Christopher Petrella and Alex Friedmann

David Harvey, Distinguished Professor of Anthropology and Geography at the City University of New York, writes that “capitalism never resolves its problems; it simply rearranges them geographically.” The same can be said of California’s almost three-year-old Public Safety Realignment initiative – legislation designed to reduce the Golden State’s prison population, in part, by transferring thousands of prisoners from state facilities to county jails.

Sadly, Realignment has merely shifted the very forms of human suffering it was originally intended to relieve. This – the paradox of modern penal reform – adds a crucial dimension to discussions about who, why and how we punish offenders. Clearly, shifting a criminal justice crisis isn’t the same as solving one.

The Realignment Initiative

Since at least 2011, the State of California has been the epicenter of contemporary prison reform in the United States. The U.S. Bureau of Justice Statistics has noted that 70% of the total decrease in state prison populations from 2010 to 2011 was a direct result of California’s Public Safety Realignment initiative.

On May 23, 2011, the U.S. Supreme Court upheld an order by a three-judge federal ...

Ninth Circuit Revives Prison Trust Account Seizure Claim; Disputed Ownership Requires Due Process Protections

Ninth Circuit Revives Prison Trust Account Seizure Claim; Disputed Ownership Requires Due Process Protections

In an unpublished ruling, the Ninth Circuit Court of Appeals reversed a federal district court’s sua sponte dismissal of a California prisoner’s claims that prison officials improperly removed money from his trust account without adequate due process protections.

California state prisoner Anthony Brazier filed a federal civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that prison officials deprived him of due process when they seized erroneously-issued tax refund checks from his prison trust account. The district court dismissed the complaint sua sponte on initial screening under 28 U.S.C. § 1915A.

On de novo review, the Ninth Circuit held that dismissal without leave to amend was improper. Citing Sanders v. City of San Diego, 93 F.3d 1423 (9th Cir. 1996), the Court of Appeals explained that “the procedural protections of the Fourteenth Amendment apply to protect a significant property interest even if there is a dispute over ownership.”

As such, the Court remanded the case “for the sole purpose of allowing Brazier to amend his due process claim ... to allege that Brazier did, in fact, have an ownership interest in ...

From the Editor

From the Editor

by Paul Wright

When Prison Legal News first started publishing in 1990, the Internet only existed for the military and a few academic institutions. PLN made its first online appearance in 1998 on what was a fairly simple website by today’s standards. We have gone through several site designs and changes since then, and I am pleased to announce that on May 15, 2014 we launched three new and updated websites for www.prisonlegalnews.org, www.humanrightsdefensecenter.org and www.prisonphonejustice.org.

Our new sites, especially the PLN and Prison Phone Justice websites, are much more user friendly and utilize state-of-the-art search engine technology to make our tens of thousands of articles, court rulings, publications, back issues of PLN and other content quick and easy to find. No other website has more prison- and jail-related news and information than PLN’s site, and our Prison Phone Justice site is the only one that tracks prison and jail phone contracts, rates, commission kickbacks and related data.

Best of all, most of the information on our sites is free. On PLN’s website nearly all of our content, including PLN back issues, are available at no cost. The ...

Florida Prisoner Awarded $1.2 Million for Burn Injuries

Florida Prisoner Awarded $1.2 Million for Burn Injuries

A Florida jury has awarded a prisoner $1.2 million in a negligence suit against the GEO Group, the nation’s second-largest for-profit prison company, following a trial that was delayed more than a year after a juror said he was ...

Are We Really Witnessing the End of Mass Incarceration?

Are We Really Witnessing the End of Mass Incarceration?

by James Kilgore

“This is the beginning of the end of mass incarceration.” – Natasha Frost, associate dean of Northeastern University’s school of criminology and criminal justice

 

After more than three decades of “tough on crime,” the New Jim Crow, truth in sentencing and three strikes, the law-and-order ship looks adrift with no one rushing to bring it back on course. The bubble of prison construction is about to burst, if it hasn’t already. Pretty soon it may be difficult to find anyone who admits they once advocated serial prison building and trying fourteen-year-olds as adults. Crime figures are down while other distress meters rise into the danger zone – unemployment, homelessness and deteriorating public education. No longer can Directors of Corrections masquerade as first responders and lay claim to unlimited funding streams. Budgetary and social justice alarm bells are ringing loud and clear.

On top of this, as Soros Justice Fellow Tracy Huling notes, a “newfound political will” from state governors of both parties “to close prisons and, in some cases, to reduce the overall size of their incarceration systems” has emerged.At a local level, more than 40 municipalities ...

Lawsuits Challenge Conditions at Tennessee Jail; Five Charged in Bribery and Smuggling Scheme

Lawsuits Challenge Conditions at Tennessee Jail; Five Charged in Bribery and Smuggling Scheme

In the wake of a Tennessee federal district court hearing in a lawsuit challenging conditions at the Maury County Jail (MCJ), the number of suits filed by prisoners against the jail has nearly doubled.

At a September 2012 hearing, prisoners held at the MCJ testified they were losing weight and that the facility was overcrowded and infested with brown recluse spiders. They also claimed their requests for medical attention were often ignored.

At least 23 lawsuits concerning conditions at the MCJ have been filed. County Attorney Daniel Murphy, however, told the federal court at an October 29, 2012 hearing that the jail had made changes in response to prisoners’ complaints; for example, meals were increased from 2,700 calories daily to 2,900. He also said new meal trays were provided, hygiene supplies such as toothpaste and shampoo have been increased, and old mattresses, which were worn and moldy, are being replaced.

Murphy further noted that the MCJ had formalized its grievance and medical request procedures and that 25 state prisoners had been transferred out of the facility to state prisons, to address overcrowding.

U.S. District ...

Jails Face Backlash, Class-action Lawsuits Over Debit Card Fees

Jails Face Backlash, Class-action Lawsuits Over Debit Card Fees

by Matt Clarke

The sheriff of Dallas County, Texas had a good reason for giving prepaid debit cards to prisoners containing the balance of their trust fund accounts when they were released from jail.

“There was too much money handling,” said Sheriff Lupe Valdez.

The cards contain the funds the prisoners had with them when they were booked into the facility, plus any money they received during their incarceration, less what they spent at the jail’s commissary. But Valdez and the Dallas County Commissioners were surprised to learn that the debit cards come with fees, and that prisoners who use the cards are charged for accessing their own money.

The issue came to light when former prisoner Steve Mathis addressed the commissioners at the end of their first regular meeting in January 2013, to complain about the fees. County Judge Clay Jenkins and Commissioner John Wiley Price didn’t like the idea of released prisoners having to pay debit card fees.

“But let me just tell you, it’s his money,” Price said, noting that was the first he’d heard about any fees. “He said he didn’t give ...

Despite Reforms, Juvenile Offenders in Texas Remain Endangered

Despite Reforms, Juvenile Offenders in Texas Remain Endangered

by Matt Clarke

Two studies by the LBJ School of Public Affairs at the University of Texas at Austin found that juveniles held in Texas jails while awaiting trial as adults are often isolated with no access to education programs, and that violence remains prevalent in state juvenile facilities in spite of recent reforms.

Texas’ juvenile system, which has been renamed the Texas Juvenile Justice Department (TJJD), was rocked by months of violence during 2012 in the agency’s six secure facilities – especially the Giddings State School and Corsicana Residential Treatment Center. The spike in violence echoed widespread reports of abuse and misconduct in 2007 that resulted in substantial changes in the state’s juvenile justice system.

For the first study by the LBJ School of Public Affairs (LBJ), 41 jails were asked to complete a survey related to incarcerated juveniles, their access to programs and whether they were separated from adult prisoners. The results indicated there were few prisoners under the age of 17 held in Texas jails – only 34 during the survey months of October and November 2011. The survey also showed that in 30 of the jails – roughly three-fourths ...

Ex-football Star Exonerated a Decade after Rape Conviction

A California high school football star who was exonerated after serving five years in prison for kidnapping and raping a classmate has fulfilled his dream of playing for the NFL, and there are now plans to make a movie about his ordeal. Meanwhile, the woman who falsely accused him has been ordered to pay $2.6 million.

The crowd in the Georgia Dome in Atlanta cheered when Brian Banks, 28, took the field wearing an Atlanta Falcons uniform in the fourth quarter of a pre-season game on August 8, 2013. The 6-foot-2, 250-pound linebacker racked up two tackles during the Falcons’ 34-10 loss to the Cincinnati Bengals.

“It was definitely a good feeling,” Banks said. “It was one of those things where, coming from where you’re coming from, just to have people support you chasing a dream. These guys have been working on this all their life. From Pop Warner [youth football program] to high school to college, this is what they’ve been doing. For them to accept me, and let me be a part of it, and just get out here and play and show what I can do is more than I can ask for.”

Although ...

U.S. Citizens without Remedy in Military Torture Case

U.S. Citizens without Remedy in Military Torture Case

by Derek Gilna

In an 8 to 3 decision, the en banc Seventh Circuit Court of Appeals reversed a ruling by Illinois U.S. District Court Judge Wayne Anderson, as well as an appellate panel that had partly affirmed that ruling, and held the judiciary should not “create a right of action for damages against soldiers who abusively interrogate or mistreat military prisoners, or fail to prevent improper detention and interrogation.”

The three appellate judges who dissented from the majority opinion argued that the plaintiffs, private American security contractors in Iraq, should have been afforded a Bivins remedy to redress their claims.

The dissent noted that both the facts and law provided an avenue by which Donald Vance and Nathan Ertel, employees of Shield Group Security (also known as National Shield Security) stationed in Iraq, could seek damages for what they contended was torture by U.S. military personnel.

According to the en banc decision, “Vance came to suspect that Shield was supplying weapons to groups opposed to the U.S.,” and became an FBI informant. However, after the individuals they had fingered accused Vance and Ertel of “gun-running,” they were ...

Scared Straight Programs Remain Popular Among Parents Despite Warnings

Scared Straight Programs Remain Popular Among Parents Despite Warnings

by Elly Yu

"I feel like I’m at my wit’s end,” says a mother about her two kids on the A&E reality TV show “Beyond Scared Straight.” It’s a feeling many parents relate to before sending their kids to local “scared straight” programs.

Despite evidence that scared straight-type programs are ineffective and can even be harmful in the long run, many parents continue to turn to local jails for help when it comes to behavioral issues with their children.

“The programs are popular because parents think it’s a quick fix,” said Lt. Terron Hayes, director of intervention at the Dougherty County Sheriff’s Office in Georgia.

Dougherty County administers its own youth intervention program, which has been featured several times on the A&E show. Since its television debut, Hayes says the Sheriff’s office has had an influx of calls from parents who want to sign up their kids for the program. He says he’s had kids come in from other counties and even from other states across the Southeast.

Gladys Davis, of Bronwood, Georgia, said she heard about the program through her adult ...

Seventh Circuit: Atheism Considered a Religion; Survey of Prisoner Interest Required

Seventh Circuit: Atheism Considered a Religion; Survey of Prisoner Interest Required

by Mark Wilson

On August 16, 2013, the Seventh Circuit Court of Appeals held for the second time that a prisoner’s request to form an atheist study group must be given the same consideration as other religious study groups.

Wisconsin prisoner James J. Kaufman, an atheist, asked to form a study group dedicated to atheism. Prison officials denied his request as one seeking to establish a nonreligious activity group. He then filed suit in federal court.

In 2005, the Seventh Circuit held that prison officials had violated Kaufman’s First Amendment rights by refusing his request to create a religious study group dedicated to atheism while allowing other religious study groups. See: Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir. 2005) (Kaufman I).

After Kaufman was transferred to the Stanley Correctional Institution, he “encountered nearly identical resistance to his efforts to create an atheist practice group.”

Prisoners requesting to participate in religious study “fill out a Religious Preference form that allows them to select one of the recognized umbrella groups, ‘no preference,’ or ‘other.’ If the inmate selects ‘other,’ he may write in a religion. If the ...

Amount of Drugs a Factor for Departure Sentence in Kansas Prison Contraband Conviction

Amount of Drugs a Factor for Departure Sentence in Kansas Prison Contraband Conviction

by David M. Reutter

The Kansas Supreme Court reversed a prisoner’s sentence for possession of contraband – a small amount of marijuana – after it held the sentencing court misinterpreted its statutory authority by concluding it could not consider a downward departure to the presumptive criminal sentence.

Prisoner Waddell Warren was convicted of introducing a controlled substance into a correctional facility and sentenced to an additional 122 months in prison. At sentencing, he requested a departure sentence because the amount of marijuana found in his socks was very small. The district court ruled it could not consider a lesser sentence on that basis.

Warren appealed, and the Court of Appeals reversed in February 2012. See: Kansas v. Warren, 47 Kan. App. 2d 57, 270 P.3d 13 (Kan. Ct. App. 2012). The Kansas Supreme Court adopted the “well-written opinion” in that case as its own.

First, it helped that the appellate court had jurisdiction to hear the appeal. At the time Warren filed his appeal, Kansas law prohibited appellate courts from reviewing “any sentence that is within the presumptive sentence for the crime.” The effect of that statutory ...

Utah Prisoner Awarded $200 for Violation of Religious Rights

Utah Prisoner Awarded $200 for Violation of Religious Rights

A federal district court awarded $200 to a Utah prisoner who sued on the grounds that prison officials interfered with his right to freely exercise his religion. However, the Tenth Circuit Court of Appeals dismissed part of the prisoner’s appeal because he did not adequately brief some of his claims, and held that another claim was moot.

Danny Lee Warner, Jr. alleged that while he was held at the Utah State Prison, officials denied various requests that he said were necessary to practice his religion. Warner is a follower of Odinism, also known as Asatru and Odhvegr, which is a faith based on Norse mythology.

He asked for accommodations that included a metal or wood thorshammer medallion, wood runes, a wooden bowl and an altar cloth. In denying his requests, prison officials cited security concerns. Warner also alleged that for Winter Nights, an Odinist holiday period lasting several weeks, he was denied break-the-fast boxes (boxed meals to eat after sunset). Further, prison officials refused to allow him access to a publication due to a ban on all materials from the publisher, National Vanguard Press.

Warner filed suit alleging that prison ...

California’s Lethal Injection Protocol Deemed Invalid by State Court

California’s Lethal Injection Protocol Deemed Invalid by State Court

by Michael Brodheim

In May 2013, a California appeals court invalidated regulations promulgated by the California Department of Corrections and Rehabilitation (CDCR) regarding the manner in which the state executes condemned prisoners. The appellate court held that the CDCR had “substantially failed to comply” with the procedural requirements of the state’s administrative rules; the decision prohibits the state from executing any prisoner by lethal injection until it properly adopts regulations pursuant to the Administrative Procedure Act (APA).

With 745 condemned prisoners as of June 2014, California has the nation’s largest death row population. In December 2006, a federal court held that the state’s three-drug lethal injection protocol constituted cruel and usual punishment. Despite their best efforts, CDCR officials have been unable to execute anyone since then.

Responding to the federal court ruling, in May 2007 the state revised its execution protocol. When challenged, however, that revision was found by a state court to constitute an “underground regulation” because it had not been promulgated pursuant to the APA.

The CDCR began the process of attempting to promulgate appropriate regulations in compliance with the APA in mid-2009. [See: PLN ...

Oregon Garnishment Exemption Protects Funds in Prisoners’ Accounts

Oregon Garnishment Exemption Protects Funds in Prisoners’ Accounts

by Mark Wilson

An Oregon judge has held that a prosecutor improperly seized money from a prisoner’s trust account to pay a court-ordered “compensatory fine.”

In 2006, Norman Earl Schlunt was convicted of poisoning and suffocating his business partner and sentenced to life in prison. He also was ordered to pay a $20,000 “compensatory fine” to the victim’s daughters, Trenna Landers and Krisanna Clark.

In August 2012, prosecutors learned that Schlunt had $1,222 in his prison trust account; they immediately garnished the entire sum for partial payment of the compensatory fine. Within days Schlunt had another $225 deposited in his account, but that money was seized, too.

Schlunt challenged both garnishments, arguing that prosecutors had improperly seized $625. Relying on a $400 personal property exemption under Oregon’s garnishment law, Schlunt argued that prosecutors could not take $400 of the initial $1,222. Further, since the full amount of the second garnishment fell below the $400 threshold, Schlunt argued that the entire $225 was exempt from garnishment.

On March 1, 2013, Multnomah County Circuit Court Judge Jerome LaBarre held a hearing on the issue.

Prosecutors and attorneys for ...

Second Circuit: RLUIPA Disallows Individual Capacity Suits

Second Circuit: RLUIPA Disallows Individual Capacity Suits

by David M. Reutter

The Second Circuit Court of Appeals held in September 2013 that the Religious Land Use and Institutionalized Persons Act (RLUIPA) does not create a private right of action against state officials in their individual capacities.

Anthony Washington, incarcerated at New York’s Woodbourne Correctional Facility, filed suit under 42 U.S.C. § 1983 in 2009, alleging that guards Paul Gonyea, Tammi Chaboty and Keith Granger had retaliated against him for exercising his First Amendment rights to free speech and free exercise of religion. He also raised RLUIPA and due process claims.

Washington’s RLUIPA claim alleged the defendants substantially burdened his free exercise rights. The defendants successfully moved to dismiss that claim because, they argued, Washington failed to plead they had placed “a substantial burden – or indeed, any burden – on his religious practice.”

On appeal, the Second Circuit cited precedent holding that sovereign immunity forecloses the availability of monetary damages as a remedy against states and state actors in their official capacities under RLUIPA. See: Sossamon v. Texas, 131 S.Ct. 1651 (2011) [PLN, Aug. 2011, p.22]. Thus, he could not sustain an official capacity claim.

Washington also ...

Ninth Circuit: Heck Allows § 1983 Parole Condition Challenges

Ninth Circuit: Heck Allows § 1983 Parole Condition Challenges

by Mark Wilson

On July 31, 2013, the Ninth Circuit Court of Appeals joined the Seventh Circuit in holding that the Heck doctrine does not bar all parole condition challenges brought under 42 U.S.C. § 1983.

California’s Sexual Predator Punishment and Control Act of 2006 – also known as Jessica’s Law or Proposition 83 – prohibits registered sex offenders from residing “within 2,000 feet of any public or private school, or park where children regularly gather.” Parolees convicted of a “registerable sex offense” must also submit to GPS monitoring for the duration of their parole or sometimes for life.

In 2011, a California state court determined that the residency restriction imposed an unconstitutional “blanket” parole condition on all registered sex offenders. See: In re Taylor, 147 Cal. Rptr.3d 64 (Cal. App. 4th Dist. 2012). Blanket enforcement of the residency restriction was prohibited, but Taylor permitted a similar individualized ban.

In 2006, William Cecil Thornton was convicted of a theft charge in California and sentenced to 16 months in prison. He was released on a three-year parole term in June 2008. Due to a prior Tennessee sex offense, Thornton ...

California: Lack of Insight Cannot be Inferred when Prisoner Accepts Responsibility for Crime and Expresses Genuine Remorse

California: Lack of Insight Cannot be Inferred when Prisoner Accepts Responsibility for Crime and Expresses Genuine Remorse

by Michael Brodheim

In the wake of the California Supreme Court’s ruling in In Re Shaputis, 53 Cal. 4th 192 (Cal. 2011) [PLN, Aug. 2012, p.16], lower courts in California continue to struggle with the issue of whether a denial of parole predicated on “lack of insight” is supported, in any given case, by the requisite “some evidence” of the prisoner’s current dangerousness.

In April 2013, the Court of Appeal, First Appellate District reiterated its previously stated view that “an inmate’s lack of insight into the causes of his criminal conduct cannot rationally be inferred from his inability to remember the conduct where ... he acknowledges his factual, legal and moral responsibility for the criminal act, and has expressed genuine remorse.”

The appellate court characterized the view of the parole board that “an inmate unable to recollect commission of his offense cannot understand the factors that caused him to commit it” as, variously, “irrational,” “purely speculative” and “guesswork.”

The issue arose in the case of James Charles Stoneroad, a Native American who, in 1986, while extremely intoxicated, murdered the 17-year-old ...

Washington Appellate Court Addresses Right to Public Hearings in Civil Cases

Washington Appellate Court Addresses Right to Public Hearings in Civil Cases

by Mark Wilson

On September 19, 2013, the Court of Appeals of Washington held that the state constitution creates a right of public access to the courts shared by civil litigants and the general public. It also held, however, that a litigant waives his right by failing to assert it and lacks standing to assert the right on behalf of the general public.

When Rolando Reyes was incarcerated for burglary in 2004, a Washington Assistant Attorney General (AAG) petitioned to commit him to the Special Commitment Center (SCC) to await trial as a sexually violent predator (SVP). While at the SCC, Reyes was twice convicted of custodial assault with sexual motivation. The SVP petition was dismissed when Reyes was sentenced to another 36 months in prison for the custodial assaults.

In 2008, the AAG re-filed the civil commitment petition and Reyes moved to dismiss. The AAG appeared telephonically and “the judge, two attorneys representing Mr. Reyes ... and a court reporter were present in chambers for the motion hearing.”

The court denied the motion and a bench trial was held nine days later. The judge found that Reyes “was a ...

Arkansas Jail Prisoner Can Proceed on Failure to Protect Claim Against Guard

Arkansas Jail Prisoner Can Proceed on Failure to Protect Claim Against Guard

by David M. Reutter

The Eighth Circuit Court of Appeals has upheld the denial of summary judgment to a guard who was aware of a threat of harm to a pretrial detainee, but reversed as to a jail supervisor because the only evidence against him was inadmissible hearsay evidence.

Arkansas pretrial detainee Chariell Ali Glaze filed a civil rights action against jail guard Demontrel L. Childs and Lt. Gary Andrews for failing to protect him at the Faulkner County Detention Center.

Glaze was removed from his cell on March 5, 2010 to be transferred to administrative segregation for reasons that are unclear in the record. After he was moved, fellow detainee Bradley Boyce told Childs, “if you bring [Glaze] back in here, there are certain inmates in here talking about hurting him.” According to Glaze, Childs said he would “talk to the lieutenant and see what can be done.”

Later, Childs told Boyce that he “talked to the lieutenant and the lieutenant said he couldn’t do anything about it.” Boyce testified that “knowing that they have done moves like that before and moved people around on those ...

5.85 Million People Disenfranchised in Supposedly Democratic America

5.85 Million People Disenfranchised in Supposedly Democratic America

by David M. Reutter

The United States is billed as the world’s largest and greatest democracy. However, it is also “one of the world’s strictest nations when it comes to denying the right to vote to citizens convicted of crimes,” according to The Sentencing Project, a Washington, D.C.-based non-profit that promotes sentencing reforms, advocates for alternatives to incarceration and criticizes racial disparities in our criminal justice system.

The Sentencing Project reports that 5.85 million Americans are unable to vote due to state felon disenfranchisement laws.

Only Maine and Vermont have no disenfranchisement statutes, allowing even prisoners to vote while incarcerated. Prisoners cannot vote in the other 48 states, while 31 states deny voting rights to probationers and 35 disenfranchise parolees. Jail detainees who have not been convicted of a felony can still vote in most cases.

Twelve states have the most extreme sanctions and deny voting rights to some or all ex-felons who have successfully completed their prison, parole or probation terms. Those states include Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nebraska, Nevada, Tennessee, Virginia and Wyoming.

While most states have a process for former ...

Bureau of Prisons Mistakenly Served Meat Intended as Pet Food

Bureau of Prisons Mistakenly Served Meat Intended as Pet Food

by Derek Gilna

A Texas meat manufacturer has pledged to adopt new procedures to ensure compliance with food safety laws and paid almost $400,000 to resolve a U.S. Department of Agriculture (USDA) investigation into mislabeled meat that was intended for pet food but instead was sold to the federal Bureau of Prisons (BOP) and served to prisoners.

The U.S. Department of Justice was quick to point out in an August 17, 2012 press release that there was “no evidence that anyone who consumed any of the ... product suffered any ill effects.”

According to the Justice Department, John Soules Foods, Inc. of Tyler, Texas entered into a settlement agreement with the U.S. Attorney’s Office for the Eastern District of Texas and the USDA Food Safety and Inspection Service.

“This settlement agreement upholds the government’s commitment to food safety while also recognizing that John Soules Foods, Inc. is a good corporate citizen with a long record of regulatory compliance and customer satisfaction,” said U.S. Attorney John Bales.

Under the agreement, the company will pay $392,000 to the federal government to resolve the USDA’s ...

European Court of Human Rights Ruling Rebukes U.S. Prison System

European Court of Human Rights Ruling Rebukes U.S. Prison System

by Derek Gilna

A suspected terrorist diagnosed as mentally ill will not be extradited from Britain to the United States to face charges that he conspired to establish a terrorist training camp in the U.S., a European court has ruled.

The Grand Chamber of the European Court of Human Rights (ECHR) denied the extradition of Haroon Rashid Aswat from the United Kingdom to the United States on the grounds that his mental and physical health would face “significant deterioration” in the “more hostile” U.S. prison system.

The ECHR’s initial decision was issued on April 16, 2013; a subsequent ruling, reported in September 2013, resulted from a request by the U.K. for the Grand Chamber to reconsider the case. The decision means Aswat will remain in Britain indefinitely. See: Aswat v. United Kingdom, ECHR Case No. 17299/12.

The Court’s ruling was widely viewed as a rebuke of the U.S. justice system’s severity of punishment and the treatment prisoners receive at “supermax” facilities.

Aswat was indicted for his alleged involvement with radical Islamic cleric and suspected terrorist Abu Hamza in a plot to ...

DOJ Intervenes in Class-action Suit Challenging New Orleans Jail Conditions; Consent Judgment Entered

The U.S. Department of Justice (DOJ) intervened in a class-action lawsuit that alleged “abusive and unconstitutional conditions of confinement” at the Orleans Parish Prison (OPP) in New Orleans, Louisiana. The lawsuit, filed in U.S. District Court by the Southern Poverty Law Center (SPLC), resulted in a consent judgment approved by the court in June 2013.

The DOJ’s intervention in the case came three years after the Department issued a findings letter that concluded numerous conditions and practices at the OPP violated prisoners’ constitutional rights. The DOJ’s September 2009 letter found prisoners were not protected against harm from excessive use of force by staff and prisoner-on-prisoner violence due to inadequate supervision; that prisoners did not receive sufficient medical and mental health care, including proper suicide prevention; that inadequate fire safety precautions placed prisoners at serious risk; and that the jail’s physical structure caused an unreasonable risk of serious harm to prisoners’ health and safety. [See: PLN, March 2010, p.30].

However, the DOJ did not take further action until three weeks after the class-action suit was filed by the SPLC. In an April 23, 2012 letter to the City of New Orleans, DOJ officials said deficiencies ...

Florida Guards Sentenced in Bribery Scheme

Florida Guards Sentenced in Bribery Scheme

Three former Florida prison guards, including a security chief, were sentenced to probation and ordered to perform community service after entering guilty or no contest pleas to charges that they accepted bribes to perform favors for prisoners, including supplying contraband, providing special treatment and “protection.” The charges stemmed from events that occurred at the Calhoun Correctional Institution (CCI) in Blountstown, Florida, where the guards worked.

Colonel John “Sammy” McAlpin, 43, pleaded guilty in Calhoun County Court to multiple charges of misdemeanor petit theft and was sentenced in October 2013 to one year of probation and 150 hours of community service. He also forfeited his corrections certification.

Former prison guard Stephen Whit Pickron, 34, pleaded no contest and was sentenced on May 15, 2013 to 104 days in jail, 10 years’ probation and 250 hours of community service. The court dismissed Pickron’s jail sentence on November 18, 2013 in response to a motion to modify his sentence.

Former guard Nicholas Anson Hans­ford, 24, also pleaded no contest and was sentenced on May 15, 2013 to 104 days in jail, 10 years of probation and community service. Like Pickron, Hansford filed a motion to ...

D.C. Circuit Reinstates Prisoner’s FOIA Suit

D.C. Circuit Reinstates Prisoner’s FOIA Suit

by Derek Gilna

Carlos Marino, incarcerated for a 1997 drug conspiracy conviction, submitted a Freedom of Information Act (FOIA) request to the Drug Enforcement Administration (DEA), seeking the agency’s investigative file for a co-conspirator who had testified against him at trial. The DEA denied his request and an administrative appeal, and Marino filed suit in the U.S. District Court for the District of Columbia.

He argued that most of the information sought in his FOIA request was in the “public domain” because it was disclosed during his trial, and that “the public interest in revealing the government misconduct he alleged outweighed the personal privacy interests the DEA had interposed.”

The DEA moved to dismiss, relying on FOIA Exemption 7(C) – which “allows an agency to withhold ‘information compiled for law enforcement purposes’ if disclosure ‘could reasonably be expected to constitute an unwarranted invasion of personal privacy.’” Marino failed to respond and the district court granted summary judgment to the DEA.

Marino then filed a motion for reconsideration and a motion under Rule 60(b) for relief from judgment, citing a “grossly negligent” effort on the part of his attorney as ...

CCA Guard Killed During Riot was on Prisoners’ “Hit List”

CCA Guard Killed During Riot was on Prisoners’ “Hit List”

by Matt Clarke

A federal lawsuit filed by the family of a guard murdered during a riot at a Mississippi facility claims that prison officials knew the guard was on a “hit list” compiled by prisoners when he was called in to help quell the disturbance.

Catlin Hugh Carithers, 24, was beaten to death during a May 20, 2012 riot at the Adams County Correctional Center near Natchez. The facility is operated by the Nashville, Tennessee-based Corrections Corporation of America (CCA), the nation’s largest for-profit prison company. The 2,567-bed Adams County facility houses low-security adult male immigrants for the federal Bureau of Prisons, most of whom face deportation after finishing their prison sentences.

Adams County Sheriff Chuck Mayfield initially told reporters that the disturbance involved a power struggle between two different factions of prisoners, but an affidavit filed in federal court by an FBI agent in August 2012 stated the riot was a protest by prisoners against poor food, inadequate medical care and alleged mistreatment by staff at the facility.

In addition to Carithers’ death, half a dozen guards were held hostage and others were trapped for hours ...

Cook County Detainee’s Suit Alleging Deliberate Indifference to Safety Survives Summary Judgment

Cook County Detainee’s Suit Alleging Deliberate Indifference to Safety Survives Summary Judgment

by David M. Reutter

The Seventh Circuit Court of Appeals has reversed a district court’s grant of summary judgment to a jail guard accused of being deliberately indifferent to a prisoner’s safety.

The case involved an incident that occurred at the Cook County Jail in Chicago, Illinois. The plaintiff, pretrial detainee Uvion Junior, was housed in a maximum-security tier at the facility with 19 two-man cells. To minimize “detainee incidents,” no more than 20 of the 38 prisoners on the tier were allowed to use the dayroom area at the same time.

When guard Summer Anderson came on shift one day, she noticed two cells were not properly locked. She wrote “security risk” in her log but took no further action. At around 6:30 p.m. that evening she released half the prisoners on the tier for their scheduled dayroom time. Some prisoners asked Anderson to let the other half out, too. Shortly afterward the other cells were opened and Anderson then left her post for up to 20 minutes.

The detainees released from the second set of cells did not enter the dayroom ...

Prison Officials Praise Industry Programs Despite Downsides

Prison Officials Praise Industry Programs Despite Downsides

by David M. Reutter

As the U.S. economy remains sluggish and companies consider layoffs to cut costs, the outlook for prison industry programs is mixed, with some reporting increased revenue and others reporting net losses.

Prison industries are big business according to a 2012 report by the Louisiana Legislative Fiscal Office, which examined industry programs in 15 Southern states.

The report found the programs employed 23,838 prisoners and generated $473.8 million in sales with $1.6 million in net profit in fiscal year 2012. What states did with those proceeds varied; some reinvested profits into their industry programs while others used the funds for other purposes.

State prison industry programs, however, are dwarfed by UNICOR, the trade name for Federal Prison Industries. UNICOR employs around 13,000 federal prisoners at factories in 62 facilities, and reported gross revenue of $609.7 million in fiscal year 2013 – but a net loss of $4.2 million. UNICOR has been laying off workers and closing some of its factories over the past several years. [See: PLN, Nov. 2013, p.52].

Prison officials are quick to tout the advantages of their industry programs.

“The ...

Ohio Community Corrections Program Hires Former Prisoners to Work at Supermax

Ohio Community Corrections Program Hires Former Prisoners to Work at Supermax

The closure of a minimum-security facility in Ohio created temporary jobs for prisoners who are being released, through a pilot program to help integrate them into society while saving the state money. The catch? The former prisoners work at a prison.

When Ohio officials closed a 240-bed minimum-security satellite facility on the grounds of the Ohio State Penitentiary (OSP) in the fall of 2012, it left a void. Prisoners at the satellite facility had prepared the meals for about 500 prisoners at OSP, the state’s highest security prison, which keeps prisoners confined to their cells 23 hours a day.

The Community Corrections Association, a non-profit organization that runs a halfway house transition program, obtained a contract to fill that void.

Fourteen of Community Corrections’ clients, who are either on probation or in a post-prison transition program, are shuttled by van to work two shifts of food service at OSP. Starting at 4:30 a.m. each day, the Community Corrections workers prepare meals for OSP prisoners; guards then deliver the meals to the prisoners’ cells.

Community Corrections also entered into a contract to perform janitorial services at OSP ...

Nebraska County Attorney’s Conviction Reversed for Theft from Pretrial Diversion Program

Nebraska County Attorney’s Conviction Reversed for Theft from Pretrial Diversion Program

by David M. Reutter

The Nebraska Supreme Court has reversed the theft conviction of a county prosecutor who stole funds from a pretrial diversion program he created.

When John Blake Edwards took office as the county attorney for Keith County in January 2007, he started a pretrial diversion program that allowed for dismissal of charges once a defendant had completed program requirements such as “community service or alcohol education.”

The Board of County Commissioners approved the program, but required that it be self-funded. Fees and costs paid by offenders participating in the program were deposited into an account with Edwards as the only authorized signer. Between March 7, 2007 and August 13, 2008, he spent $7,257.11 from the account.

In April 2008, a county commissioner filed a complaint with the Attorney General’s office alleging misuse of public funds in connection with the pretrial diversion program. No action was taken by the Attorney General, and the county board later adopted a revised diversion program that required fees and costs to be deposited with the county commissioners. It did not address the funds in the previous program ...

Seventh Circuit: Jail Social Worker Ignored Detainee’s Suicide Risk

Seventh Circuit: Jail Social Worker Ignored Detainee’s Suicide Risk

On August 12, 2013, the Seventh Circuit Court of Appeals held that a jail social worker could be held liable for ignoring a detainee’s obvious risk of committing suicide.

Algerian citizen Hassiba Belbachir, 27, entered the United States as a visitor in November 2004. She overstayed her visa then flew from Chicago to England in February 2005, where she was detained by immigration authorities.

Belbachir was returned to Chicago a week later. On March 9, 2005, she was incarcerated at the McHenry County Jail in Illinois pending a deportation hearing.

A March 9, 2005 intake report did not reveal indications that Belbachir presented a significant suicide risk – in part because a “guard who filled out the intake report changed Belbachir’s answer ‘yes’ to the question ‘Are you currently extremely depressed or feeling suicidal?’ to ‘no,’” subsequently claiming he had made a mistake.

Five days later, Belbachir’s mental state had deteriorated significantly.

“Belbachir was suicidal and suffering from a ‘major depressive disorder’ – a warning sign for suicide,” according to the mental health progress notes of Vicki Frederick, a Licensed Clinical Social Worker employed by Centegra Health Systems, the ...

Mandamus Petition May Constitute Prison Conditions Litigation in Pennsylvania

Mandamus Petition May Constitute Prison Conditions Litigation in Pennsylvania

by David M. Reutter

The Supreme Court of Pennsylvania held on July 9, 2013 that a mandamus petition related to an underlying complaint concerning prison conditions itself constitutes prison conditions litigation within the meaning of the state’s Prison Litigation Reform Act (PLRA), 42 Pa.C.S. § 6602(f).

SCI-Graterford prisoner Alton D. Brown is, according to the state Supreme Court, “a frequent filer of frivolous litigation in the Commonwealth and federal courts.” There was no dispute that he had already run afoul of the “three-strikes-and-you’re-out policy” codified in the federal and Pennsylvania PLRA statutes when he attempted to file a complaint in Montgomery County alleging civil rights violations.

His complaint was rejected three times by the Montgomery County Prothonotary for failure to provide the names and addresses of all named defendants. When Brown filed a mandamus petition to force the acceptance of his complaint, the Prothonotary moved to dismiss under the PLRA’s three-strikes rule. The trial court granted the motion and the Commonwealth Court affirmed on appeal.

Brown then filed another civil action against prison officials for inadequate medical care and other conduct that he alleged violated his ...

For Sale: New York Lakefront Property with Garage, Pig Farm and 736 Prison Cells

For Sale: New York Lakefront Property with Garage, Pig Farm and 736 Prison Cells

What New York State is doing with some of its closed prisons is like dragging an old, unwanted couch out to the dumpster and then slapping a price tag on it.

In an effort to address state budget gaps, Governor Andrew Cuomo’s administration closed seven of New York’s 67 correctional facilities and put them on the real estate market in 2012. [See: PLN, June 2013, p.1].

“Instead of spending millions maintaining facilities we don’t need, the governor’s approach saves taxpayers millions and opens up transformative economic development and investment opportunities in communities across the state,” said Howard B. Glaser, Cuomo’s director of state operations.

Nearly a dozen prisons have been closed in New York in recent years thanks to lower crime rates, early release programs for nonviolent offenders and reforms in the state’s strict Rockefeller drug laws. In fact, since 1999, when New York incarcerated an all-time high of almost 71,500 prisoners, the Empire State’s prison population has fallen nearly 25%, leaving thousands of empty beds when Governor Cuomo announced the sale of the idle correctional facilities ...

News in Brief

News in Brief

Arizona: Former state prison guard Robert Joseph Hamm, 34, was sentenced on September 9, 2013 to 11 years in prison for having a sexual relationship with a Tucson teenager. He had previously served a year in prison after pleading guilty in 2011 to having sex with the same girl, who was then 14 years old. [See: PLN, Feb. 2012 p.50]. Eight years of the 11-year sentence were for Hamm’s violation of his probation in the 2011 case. The girl’s parents had alerted the police after finding a diary describing her encounters with Hamm.

Arkansas: Faulkner County jailers Seth Ferguson and Christy Jordan were fired on September 22, 2013 after officials found they had failed to check the recreation yard every 30 minutes as required by jail policy on the day three prisoners escaped. A spokesperson for the sheriff’s office said the two guards had been employed by the county for almost two years. Although the prisoners were later recaptured, Ferguson and Jordan failed to notice they were missing for at least 30 minutes.

California: On October 4, 2013, Timothy Michael Russell was found dead in his cell at San Quentin State Prison, the ...


 

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