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Prison Legal News: August, 2014

Issue PDF
Volume 25, Number 8

In this issue:

  1. Unfair Punishment (p 1)
  2. BJS Report: Jail Population Increases in Indian Country (p 15)
  3. From the Editor (p 16)
  4. PLN Settles Lawsuit Against Kenosha County, Wisconsin for $116,500 (p 17)
  5. Qui Tam Lawsuits Under the Federal False Claims Act – An Overview (p 18)
  6. How to Starve the For-profit Prison Beast (p 20)
  7. "Mass Chaos" Reigns at Georgia Prisons (p 22)
  8. Temple University Acts on Complaint Against Authors of Private Prison Study (p 24)
  9. U.S. Sentencing Commission Approves Retroactivity for Drug Offense Sentence Reductions (p 26)
  10. Ninth Circuit: Prisoner’s Service of Process for Other Prisoner Not Protected Conduct (p 26)
  11. Texas Correctional Industries: Providing Useful Work Skills or Slave Labor? (p 28)
  12. South Carolina Supreme Court Reverses Parole Denial (p 29)
  13. ACLU Granted Preliminary Injunction Requiring Michigan Jail to Deliver Legal Mail (p 30)
  14. Update on PLN Suit Against Nevada DOC (p 30)
  15. Reversal of Oregon Parole Postponement Due to Incorrect Psychological Evaluation (p 32)
  16. Seventh Circuit: Routine Erasure of Prison Security Tapes Does Not Warrant Sanctions (p 34)
  17. Qualified Immunity to Iowa DOC Director for Recalculating Prisoners’ Release Dates (p 34)
  18. Fifth Circuit Grants Summary Judgment for Substitution of Pain Medication (p 35)
  19. Heat-related Deaths in Texas Prisons Lead to Lawsuits, Reluctant Changes (p 36)
  20. Washington Jail Detainees Sue over Videotaped "Peep Shows" (p 40)
  21. ICE Officials Target of Sexual Harassment, Gender Discrimination Lawsuits (p 40)
  22. Failure to Treat Tuberculosis Suit Survives Summary Judgment, Settles for $1.4 Million (p 42)
  23. Physician Sentenced for Sexually Abusing Prisoners in Georgia, District of Columbia (p 42)
  24. Washington Prison Guard’s Murder Costs State $2.5 Million and Counting (p 44)
  25. Lethal Injection Protocol, Source of Execution Drugs Challenged in Pennsylvania (p 44)
  26. Fifth Circuit Upholds Qualified Immunity in Medical Neglect Death of Texas Detainee (p 46)
  27. Cover-up of Angola Prisoner’s Beating Results in Guilty Pleas, $8,000 Settlement (p 46)
  28. Ninth Circuit Again Rejects California’s Resistance to ADA Obligations (p 48)
  29. Jails Stop Posting Mug Shots to End "Extortion" by Profiteering Websites (p 48)
  30. Oregon Attorney Fee Repayment Requires Showing of Ability to Pay (p 50)
  31. Private Prison Contractor Not Subject to New Jersey’s Open Records Act (p 50)
  32. Washington Supreme Court Recognizes Racial Bias in Jury Selection but Fails to Take Action (p 51)
  33. Seventh Circuit: Indiana Malicious Prosecution Claim Cognizable via § 1983 (p 52)
  34. Report: Prisons in Honduras are Dangerous, Violent and Corrupt (p 52)
  35. Ninth Circuit Vacates FRCP 4(m) Dismissal Without Notice (p 54)
  36. Kansas DNA Testing Eligibility Extended to Second-Degree Murder (p 54)
  37. News in Brief (p 56)

Unfair Punishment

Unfair Punishment

by Sam Levin

Part One: Victim Discrimination

A state program that’s supposed to help crime victims denies people who have had run-ins with the law or are afraid of being victimized again.

The front door was wide open when police arrived at the home of Samantha Rogers at ...

BJS Report: Jail Population Increases in Indian Country

BJS Report: Jail Population Increases in Indian Country

Jails on Indian reservations across the U.S. are housing more offenders despite a decline in violent crimes, according to a report released last year.

The most recent annual Survey of Jails in Indian Country by the Bureau of Justice Statistics (BJS ...

From the Editor

From the Editor

by Paul Wright

I have long observed that it costs a lot of money to be poor in America. Since our criminal justice system falls almost exclusively on those who are poor, it should be no surprise that a great deal of time and energy goes into ...

PLN Settles Lawsuit Against Kenosha County, Wisconsin for $116,500

PLN Settles Lawsuit Against Kenosha County, Wisconsin for $116,500

by Derek Gilna

After 29 prisoners at a jail in Kenosha County, Wisconsin did not receive their monthly copies of Prison Legal News or informational brochures and soft-cover books mailed by PLN, PLN filed suit in federal court alleging First ...

Qui Tam Lawsuits Under the Federal False Claims Act – An Overview

Qui Tam Lawsuits Under the Federal False Claims Act – An Overview

by Sabarish Neelakanta

The qui tam provisions of the federal False Claims Act (FCA)1 exist to encourage whistleblowers who are aware of fraud against the government to bring such information forward. See 31 U.S.C. §§ ...

How to Starve the For-profit Prison Beast

How to Starve the For-profit Prison Beast

by Justin Jones

I know some private prison lobbyists who would love it if you were found with a cell phone. Assuming, of course, that you’re already locked in one of the prisons their clients operate in Oklahoma.

Introducing a cell phone into ...

"Mass Chaos" Reigns at Georgia Prisons

"Mass Chaos" Reigns at Georgia Prisons

by David M. Reutter

Five former Georgia prison guards have pleaded guilty and three were convicted by a federal jury in connection with a severe beating that left a handcuffed prisoner hospitalized with acute brain damage. The charges followed state and federal law enforcement ...

Temple University Acts on Complaint Against Authors of Private Prison Study

Temple University Acts on Complaint Against Authors of Private Prison Study

In response to an ethics complaint filed against Temple University professors Simon Hakim and Erwin A. Blackstone, a Temple official wrote in July 2014 that she had examined the complaint and the University took action as a result.

The ...

U.S. Sentencing Commission Approves Retroactivity for Drug Offense Sentence Reductions

U.S. Sentencing Commission Approves Retroactivity for Drug Offense Sentence Reductions

by Derek Gilna

It’s always hard for the federal government to admit its mistakes, especially when they have ruined tens of thousands of lives, devastated inner-city neighborhoods and cost taxpayers billions of dollars. But a recent vote by the ...

Ninth Circuit: Prisoner’s Service of Process for Other Prisoner Not Protected Conduct

Ninth Circuit: Prisoner’s Service of Process for Other Prisoner Not Protected Conduct

by Mark Wilson

On September 10, 2013, the Ninth Circuit Court of Appeals affirmed the dismissal of a prisoner’s retaliation claim, holding that serving a summons for another prisoner is not constitutionally protected conduct.

Hawaiian prisoner Richard H ...

Texas Correctional Industries: Providing Useful Work Skills or Slave Labor?

Texas Correctional Industries: Providing Useful Work Skills or Slave Labor?

With factories employing more than 5,000 prisoners at 37 facilities, mostly in the eastern part of the state, Texas Correctional Industries (TCI) is a large and diversified operation. However, critics question the relevance of the job skills that prisoners ...

South Carolina Supreme Court Reverses Parole Denial

South Carolina Supreme Court Reverses Parole Denial

by Michael Brodheim

The Supreme Court of South Carolina, exercising the sort of common sense not found in the courts of more “liberal” states like California, held on July 3, 2013 that retroactive application of a law that increases the requirements for parole ...

ACLU Granted Preliminary Injunction Requiring Michigan Jail to Deliver Legal Mail

ACLU Granted Preliminary Injunction Requiring Michigan Jail to Deliver Legal Mail

by David Reutter

A federal district court in Michigan granted a preliminary injunction that requires officials at the Livingston County Jail (LCJ) to deliver letters sent by the ACLU to specific prisoners and to return the mail if a ...

Update on PLN Suit Against Nevada DOC

Update on PLN Suit Against Nevada DOC

Prison Legal News continues its efforts to defend its First Amendment right to communicate with prisoners in the Nevada Department of Corrections (NDOC). In 1999 the NDOC banned all copies of PLN, claiming the publication constituted “inmate correspondence.” PLN filed suit and ...

Reversal of Oregon Parole Postponement Due to Incorrect Psychological Evaluation

Reversal of Oregon Parole Postponement Due to Incorrect Psychological Evaluation

by Mark Wilson

The Oregon Court of Appeals has held that a prisoner’s release was improperly postponed for two years on the basis of an erroneous psychological evaluation report.

Oregon law provides for enhanced “dangerous offender” sentences upon a finding ...

Seventh Circuit: Routine Erasure of Prison Security Tapes Does Not Warrant Sanctions

Seventh Circuit: Routine Erasure of Prison Security Tapes Does Not Warrant Sanctions

by Michael Brodheim

The Seventh Circuit has held that a district court did not abuse its discretion when it denied a prisoner’s motion for sanctions based on the erasure of prison security tapes that allegedly would have provided ...

Qualified Immunity to Iowa DOC Director for Recalculating Prisoners’ Release Dates

Qualified Immunity to Iowa DOC Director for Recalculating Prisoners’ Release Dates

by David M. Reutter

The Eighth Circuit Court of Appeals has upheld a district court’s grant of qualified immunity in a civil rights action brought by four ex-prisoners who were held beyond their release dates.

The prisoners, Richard Scott ...

Fifth Circuit Grants Summary Judgment for Substitution of Pain Medication

Fifth Circuit Grants Summary Judgment for Substitution of Pain Medication

The Fifth Circuit Court of Appeals has reversed a denial of summary judgment against jail medical officials who substituted ibuprofen for Percocet when treating a prisoner’s gunshot wound.

On September 12, 2008, Ronnie Burton was shot in the shoulder during ...

Heat-related Deaths in Texas Prisons Lead to Lawsuits, Reluctant Changes

Heat-related Deaths in Texas Prisons Lead to Lawsuits, Reluctant Changes

by Matt Clarke and David M. Reutter

Prisoners across the nation are currently experiencing the oppressive heat of summer – particularly in the Southern states. Those incarcerated in Texas, however, have not just been sweating due to high temperatures. They ...

Washington Jail Detainees Sue over Videotaped "Peep Shows"

Washington Jail Detainees Sue over Videotaped "Peep Shows"

by Mark Wilson

"They were directing them to do it like dolls. Like taking clothes off a Barbie doll,” stated Seattle, Washington attorney James C. Egan, referring to a pattern of videotaping female detainees in holding cells at the Puyallup City ...

ICE Officials Target of Sexual Harassment, Gender Discrimination Lawsuits

ICE Officials Target of Sexual Harassment, Gender Discrimination Lawsuits

Accusations of sexual harassment and anti-male bias at the highest levels of the U.S. Immigration and Customs Enforcement (ICE) bureau resulted in a shakeup at the agency and two federal lawsuits, one of which settled for $175,000.

On September ...

Failure to Treat Tuberculosis Suit Survives Summary Judgment, Settles for $1.4 Million

Failure to Treat Tuberculosis Suit Survives Summary Judgment, Settles for $1.4 Million

by Derek Gilna

In January 2013, the U.S. District Court for the Western District of Washington denied a motion for summary judgment filed by the Bureau of Prisons (BOP), seeking qualified immunity in a Bivens lawsuit ...

Physician Sentenced for Sexually Abusing Prisoners in Georgia, District of Columbia

Physician Sentenced for Sexually Abusing Prisoners in Georgia, District of Columbia

On August 28, 2012, Dr. Lewis Jackson, 37, was indicted by a federal grand jury for sexually abusing prisoners at the United States Penitentiary (USP) in Atlanta, Georgia. The alleged abuse occurred while Jackson was out on bond pending ...

Washington Prison Guard’s Murder Costs State $2.5 Million and Counting

Washington Prison Guard’s Murder Costs State $2.5 Million and Counting

by Mark Wilson

A Washington prisoner’s conviction and death sentence for murdering a female prison guard has cost taxpayers $1.6 million, while the guard’s family settled a lawsuit against the state for $900,000.

As previously reported in ...

Lethal Injection Protocol, Source of Execution Drugs Challenged in Pennsylvania

Lethal Injection Protocol, Source of Execution Drugs Challenged in Pennsylvania

A long-standing federal class-action lawsuit is challenging the constitutionality of Pennsylvania’s execution protocol, and one of the issues in the case involves the use of lethal injection drugs obtained from a compounding pharmacy.

The execution drugs used by the Pennsylvania ...

Fifth Circuit Upholds Qualified Immunity in Medical Neglect Death of Texas Detainee

Fifth Circuit Upholds Qualified Immunity in Medical Neglect Death of Texas Detainee

by Matt Clarke

In a case involving the death of a pretrial detainee due to lack of medical treatment, the Fifth Circuit Court of Appeals upheld a district court’s order granting qualified immunity to a contract doctor at ...

Cover-up of Angola Prisoner’s Beating Results in Guilty Pleas, $8,000 Settlement

Cover-up of Angola Prisoner’s Beating Results in Guilty Pleas, $8,000 Settlement

Three Louisiana prison officials have pleaded guilty to federal charges related to their role in the beating of a prisoner at the Louisiana State Penitentiary in Angola.

The incident occurred on January 24, 2010, when prisoner Roy H ...

Ninth Circuit Again Rejects California’s Resistance to ADA Obligations

Ninth Circuit Again Rejects California’s Resistance to ADA Obligations

by Mark Wilson

On October 4, 2013, the Ninth Circuit Court of Appeals affirmed a district court order requiring California prison officials to disseminate and implement a previously-negotiated County Jail Plan for disabled prisoners and parolees.

As previously reported in PLN ...

Jails Stop Posting Mug Shots to End "Extortion" by Profiteering Websites

Jails Stop Posting Mug Shots to End "Extortion" by Profiteering Websites

A growing number of jails are no longer putting booking photos of arrestees online in order to prevent websites such as mugshots.com from obtaining and posting them, then charging people to remove them.

At least seven states have ...

Oregon Attorney Fee Repayment Requires Showing of Ability to Pay

Oregon Attorney Fee Repayment Requires Showing of Ability to Pay

by Mark Wilson

On October 9, 2013, the Oregon Court of Appeals held that a trial court lacked the authority to require a criminal defendant to pay $37,400 in court-appointed attorney fees.

Oregon criminal defendants may be ordered to ...

Private Prison Contractor Not Subject to New Jersey’s Open Records Act

Private Prison Contractor Not Subject to New Jersey’s Open Records Act

On October 12, 2012, a New Jersey state superior court held that Community Education Centers (CEC), a private prison contractor, was not required to disclose its records under the state’s Open Public Records Act (OPRA), N.J.S.A ...

Washington Supreme Court Recognizes Racial Bias in Jury Selection but Fails to Take Action

Washington Supreme Court Recognizes Racial Bias in Jury Selection but Fails to Take Action

by Mark Wilson

"Peremptory challenges are used in trial courts throughout this state, often based largely or entirely on racial stereotypes or generalizations,” declared Washington State Supreme Court Justice Steven Gonzalez. “As a result, many ...

Seventh Circuit: Indiana Malicious Prosecution Claim Cognizable via § 1983

Seventh Circuit: Indiana Malicious Prosecution Claim Cognizable via § 1983

by Mark Wilson

On October 21, 2013, the Seventh Circuit Court of Appeals reversed a district court’s dismissal of a former prisoner’s malicious prosecution claim.

While investigating a March 2001 burglary-arson at a high school in Frankton, Indiana, police officers ...

Report: Prisons in Honduras are Dangerous, Violent and Corrupt

Report: Prisons in Honduras are Dangerous, Violent and Corrupt

by Matt Clarke

When a February 2012 fire at a prison in Comayagua, Honduras killed 361 prisoners after guards abandoned their posts – leaving the prisoners to die in their cells – there was hope that the resulting international attention focused ...

Ninth Circuit Vacates FRCP 4(m) Dismissal Without Notice

Ninth Circuit Vacates FRCP 4(m) Dismissal Without Notice

by Mark Wilson

The Ninth Circuit Court of Appeals held on October 30, 2013 that a district court’s failure to provide notice before dismissing a complaint for non-service and denying leave to amend were abuses of discretion.

Nevada state prisoner John ...

Kansas DNA Testing Eligibility Extended to Second-Degree Murder

Kansas DNA Testing Eligibility Extended to Second-Degree Murder

by Mark Wilson

The Kansas Supreme Court held on October 4, 2013 that a state law denying DNA testing to prisoners convicted of second-degree murder violates the Equal Protection Clause of the Fourteenth Amendment.

Kansas prisoners convicted of first-degree murder or rape ...

News in Brief

News in Brief

Alabama: As previously reported in PLN, former Clay County jail administrator Jeffrey “Scott” Cotney filed a lawsuit alleging defamation, slander, libel and other claims related to accusations that he had used his position at the jail to sexually abuse prisoners. [See: PLN, March 2014, p.36]. On ...