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Prisoner Education Guide

Prison Legal News: August, 2014

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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 3:21 a.m. on February 23, 2010. Inside the Stockton, California apartment, Rogers was alone, sitting on the kitchen table, wiping her face with a towel. The television was overturned and there was blood smeared across the living room carpet and walls.

Rogers didn’t think she needed to go to the hospital. “I was like, ‘There’s nothing wrong with me. I’m okay,’” Rogers, now 46, recalled. “They could see I was in shock.”

Rogers was not okay. Her whole face was swollen, she had a large cut under her eye and her nose was broken, according to a Stockton Police Department report and Rogers’ own recollection of the incident. Earlier that night, she and her boyfriend of three years had invited friends over to play cards and dominoes at their shared home. At one point, the couple got in an argument about money, and Rogers’ boyfriend started ...

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) reported that 2,364 prisoners were confined in 79 Indian country jails at midyear 2012 – a 5.6% increase in the jail population over the previous year.

The June 2013 survey noted, however, that only 32% of prisoners in those jails were incarcerated for a violent crime – a decrease of almost 10% from a high in 2007. Most violent offenses were for domestic violence and assault.

A majority of the total Indian country jail population (51%) was incarcerated in just 14 facilities, with nearly half of those located in Arizona. While several Indian country jails saw a decrease in incarceration rates, the Tohono O’odham Adult Detention Center in Arizona – with the largest Indian country jail population – held 229 offenders in 2012, an increase of 17.4% from the previous year.

Sixteen facilities were operating above 15% of their rated capacity as of June 2012. Indian country ...

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 keeping the poor ensnared in the justice system.

For decades, PLN has reported on the measures used to criminalize the poor and ensure they remain impoverished through imprisonment, fines, restitution, “cost of incarceration” fees, court costs, high prison and jail phone rates, and all the myriad other ways in which prisoners, detainees and their families are financially exploited.

This month’s cover story delves into some of the details of the intentional immiseration of those swept into the machinery of mass incarceration. While officially touted as a means of making mass imprisonment more affordable for the ruling class, the reality is that the exploitative nature of our justice system merely increases the number of people who, for the most part, are unable to pay the costs of being a prisoner or defendant. If the criminal justice programs designed to siphon money from the poor were effective, then prisons, jails and the ...

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. §§ 3729-3733. Private contractors guilty of defrauding the federal government are liable for a civil penalty of $5,500 to $11,000 per claim, plus three times the government’s damages. Id. at § 3729(b).

A civil suit filed by an individual on behalf of the government is known as a qui tam action, and the person bringing the action is referred to as a “relator.” The relator may be awarded 15-30% of the proceeds of any recovery or settlement, plus expenses and reasonable attorneys’ fees and costs. Id. at § 3730(d)(1)-(2). Recoveries in FCA cases often result in millions of dollars in settlements or damage awards, providing a significant incentive for individuals with inside knowledge of fraudulent conduct to report such activity.

Within the criminal justice context, qui tam lawsuits can be used to expose mistreatment and fraud at privately- or publicly-operated correctional facilities. Prisons are ...

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 a correctional facility used to be a misdemeanor in Oklahoma. Now, it’s a felony. This change did not happen for any reason other than a private prison lobbyist provided his client with a good way to make even more revenue off of people already imprisoned. Bumping this crime up from a misdemeanor to a felony means that when a person is caught with a cell phone in prison, he or she will end up staying in prison even longer; in most cases the new sentence will be added to the end of the existing one, instead of allowing people to serve time for both the crime that landed them behind bars and the cell phone infraction simultaneously. More prison time, more profits.

Does it matter that this policy has zero public safety value, as cell phones were already considered contraband behind bars? Not to a private prison company. When a ...

"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 investigations into the assault, and the prisoner filed suit due to his injuries.

An advocacy group, meanwhile, has filed a separate lawsuit contending that violence in Georgia’s prison system is “spiraling out of control,” resulting in “mass chaos.”

On August 15, 2012, former state prison guard Darren Douglass-Griffin, 36, a member of the Correctional Emergency Response Team (CERT) at Macon State Prison, pleaded guilty to charges of conspiracy to violate the civil rights of a prisoner and falsification of records related to the brutal beating of prisoner Terrance Dean in December 2010. The charges stemmed from an FBI investigation into organized abuse by guards at the facility.

Two other former CERT members at Macon, Emmett McKenzie and Willie Redden, entered guilty pleas in related cases. Douglass-Griffin, McKenzie and Redden remain free on unsecured bonds.

An initial Georgia Bureau of Investigation (GBI) review of the beating incident determined that ...

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 complaint, filed in June 2013 by PLN managing editor Alex Friedmann, noted that when Hakim and Blackstone initially released the results of their research – which found substantial cost savings and comparable quality of service by privately-operated prisons – their working paper failed to disclose they had received funding from the nation’s three largest private prison companies. [See: PLN, June 2013, p.32].

Further, Hakim and Blackstone wrote editorials published in newspapers in at least five states regarding their research, most of which did not disclose the funding source of their study. Friedmann wrote counter-editorials, four of which were published.

The ethics complaint argued that the professors’ failure to adequately disclose their private prison study had received funding from the private prison industry violated several University policies related to academic research. The complaint also noted the study relied upon American Correctional Association (ACA) standards to evaluate quality of service at ...

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 U.S. Sentencing Commission to make sentence reductions for certain non-violent drug offenders retroactive is certainly a step in the right direction.

The Commission’s July 18, 2014 decision will affect an estimated 20% of federal prisoners and thousands of defendants currently awaiting sentencing, by making retroactive a two-level reduction “in the sentencing guideline levels applicable to most federal drug trafficking offenders.” The Commission had voted in April to lower the sentencing guideline levels.

“This amendment received unanimous support from commissioners because it is a measured approach,” remarked Sentencing Commission Chairwoman Patti B. Saris. “It reduces prison costs and populations, and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety.”

According to Families Against Mandatory Minimums (FAMM), over 65,000 people submitted public comments to the Commission in support of applying the sentence guideline reductions retroactively.

“This is a milestone ...

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. Blaisdell was incarcerated at the Saguaro Correctional Center, a prison in Arizona operated by Corrections Corporation of America (CCA). Since 2007 he has filed at least three lawsuits against prison officials.

On April 23, 2008, Blaisdell asked CCA classification supervisor Christina Frappiea to notarize a document for a lawsuit he planned to file against the facility. When she finished, Blaisdell announced that she had been “served” and handed her an unrelated summons and federal civil complaint prepared by another prisoner, Anthony Gouveia.

The complaint concerned Frappiea’s refusal to notarize a document related to a lawsuit Gouveia had filed in Mississippi. Blaisdell was not a party to that suit and had agreed to serve process for Gouveia.

Blaisdell and Frappiea argued about whether he had the right to serve her. She then issued disciplinary reports against Blaisdell, charging him with “Conspiracy” for agreeing to possess Gouveia’s summons and complaint, “Failure to ...

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 learn, and even TCI has acknowledged slow progress in modernizing its industry programs.

Established by state law in 1963, TCI manufactures a wide selection of goods that range from furniture and garments to refurbished computers. TCI also operates soap and detergent factories, metal fabrication facilities, sign shops, and boot and shoe manufacturing plants, and produces bedding, janitorial supplies, Texas state flags and, of course, license plates. Industry programs also include tire repair and retreading, printing services, renovating school buses and Braille transcription.

TCI provides goods and services to “city, county, state and federal agencies, public schools, public and private institutions of higher education, public hospitals and political subdivisions.”

Critics claim that many of the job skills learned by prisoners in TCI industry programs will be virtually useless after they’re released because they involve outdated techniques or industries that are scarce in Texas. For example, there are relatively few soap ...

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 constitutes an ex post facto violation. In so holding, the Court reversed a denial of parole by the Board of Probation, Parole and Pardon Services (Board).

In 1982, after pleading guilty to one count of murder, Thelma Barton was sentenced to life in prison. Beginning in 1997, her application for parole was denied 13 times.

In January 2012, four of the six Board members participating in Barton’s parole hearing voted in favor of granting her parole. Ultimately, however, parole was denied because, in the Board’s view, section 24-21-645 of the South Carolina Code requires a two-thirds majority vote of the Board’s seven members (i.e., five votes rather than four) before parole may be granted in cases involving violent crimes. The Board cited the “nature, seriousness, and indication of violence of her offense” in denying Barton parole.

Barton appealed the decision, arguing the Board had violated her constitutional rights by ...

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 prisoner is no longer in custody. The defendants appealed and the Sixth Circuit declined to stay the injunction.

The ACLU filed a lawsuit in March 2014, which was assigned as a companion case to Prison Legal News v. Livingston County Sheriff Bob Bezotte, U.S.D.C. (E.D. Mich.), Case No. 2:11-cv-13460-DPH-MAR. [See: PLN, Sept. 2011, p.19].

Both PLN and the ACLU are challenging the constitutionality of the LCJ’s postcard-only mail policy. The ACLU alleged that jail officials violated the First Amendment by blocking and reading its letters sent to prisoners; it also asserted due process violations.

While the LCJ’s mail policy includes procedures for legal mail, the ACLU said the jail “does not allow ACLU attorneys to write letters to inmates regarding the constitutionality of the conditions of confinement including letters that would address the constitutionality of the postcard-only policy itself.” Additionally, LCJ officials failed ...

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 was granted a preliminary injunction requiring delivery of PLN subscriptions and mail to Nevada prisoners. The state entered into a consent decree in September 2000, agreeing that prisoners “shall be permitted to subscribe to the publications of their choice,” subject only to specified security concerns.

However, ongoing censorship of PLN’s monthly magazine and books resulted in a June 2013 lawsuit in which PLN seeks to enjoin the unconstitutional censorship of its publications by prison officials. [See: PLN, Nov. 2013, p.18]. In conjunction with the lawsuit, PLN also filed a motion for an order to show cause in the prior suit, seeking to hold the NDOC in contempt for violating provisions of the 2000 consent decree by enacting and enforcing policies that continue to censor PLN’s monthly publication and book orders sent to Nevada prisoners. The federal district court later consolidated the two cases.

On June 17, 2014, the ...

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 that a defendant suffers “from a severe personality disorder indicating a propensity toward criminal activity.” The Board of Parole & Post-Prison Supervision (Board) then establishes a parole consideration hearing date rather than a parole release date.

If the Board finds at a parole consideration hearing that the condition which made the prisoner dangerous is absent or in remission, it must order the prisoner’s release. If the condition is found to still be present, the Board may postpone parole consideration for a minimum of two years and a maximum of 10 years.

To assist the Board in making this determination, prisoners are compelled to submit to psychological evaluations by Board-contracted psychologists who are paid for each evaluation. Independent evaluations typically cost $1,500 to $3,000.

Some Board-contracted psychologists interview the prisoner while others don’t. Some administer psychological testing, others don’t. Some review the prisoner’s file and some don’t. The ...

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 evidence in support of the prisoner’s claim that he had been subjected to excessive force. The appellate court held that sanctions are warranted only when evidence is destroyed in bad faith, i.e., “for the purpose of hiding adverse information,” and that there was no evidence that the disputed videos had been destroyed for reasons other than routine prison policy.

Larry Bracey, incarcerated at the Wisconsin Secure Program Facility, was injured during an altercation with guards in July 2005. The incident was recorded by prison security cameras but the video footage was erased when the cameras recorded over it about three days later.

Bracey filed suit in 2010, alleging that the guards had used excessive force against him in violation of the Eighth Amendment. As the trial approached he filed a motion for sanctions, arguing that he was entitled to an adverse inference jury instruction because the security tapes ...

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, Tim Burney, Kevin Underwood and J’Won Wilder, filed a lawsuit under 42 U.S.C. § 1983 against Iowa Department of Corrections (IDOC) director John R. Baldwin, seeking monetary and injunctive relief. They alleged that Baldwin had failed “to timely recalculate the end dates” of their sentences following the Iowa Supreme Court’s decision in Anderson v. State, 801 N.W.2d 1 (Iowa 2011). In that case, the Courtheld that Iowa law requires prisoners to receive credit for time served “for supervision of services.”

Within weeks of the Anderson ruling, Baldwin knew it would impact “approximately 3,444 offenders.” Working some overtime, the IDOC began recalculating each prisoner’s release date. The first affected prisoner was freed on August 26, 2011; through December 8, 2011, the IDOC released more than 200 prisoners. The plaintiffs served between 43 and 60 days beyond their release dates.

While it was undisputed that ...

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 a drive-by shooting. He was taken to a hospital, treated, admitted for a day, prescribed Percocet for pain and released. He was then arrested and taken to the Hinds County Detention Facility in Raymond, Mississippi, where he remained until he was released two days later. During his stay at the jail, Burton was denied Percocet and instead given 800mg of ibuprofen twice a day for pain. He alleged that was insufficient and he remained in pain.

Burton filed suit in state court alleging a violation of his Fourteenth Amendment right to medical care as a pretrial detainee. The case was removed to federal court. The defendants filed a motion for summary judgment, alleging their actions did not violate Burton’s rights; the district court denied summary judgment to two medical officials at the jail, who filed an interlocutory appeal.

The Fifth Circuit noted that medical care standards for pretrial detainees under ...

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 have been dying.

Since 2007 at least 14 prisoner deaths in Texas have been linked to sweltering conditions during brutal summers. Prisoners who suffer from obesity, diabetes and high blood pressure, and those taking psychiatric medications, are especially susceptible to high levels of heat. But despite the fatalities – and resultant lawsuits – until recently the Texas Department of Criminal Justice (TDCJ) has done little to prevent prisoners from literally baking to death.

Such stonewalling has persisted in spite of a federal Court of Appeals ruling that found exposing prisoners to dangerously high temperatures may violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Unlike correctional facilities in many other states, most Texas prisons are not air conditioned – only 21 of 111 TDCJ facilities have full climate control, while others have air conditioning only in certain areas such as medical units.

In a rare and unusual display of ...

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 Jail as they undressed and used the toilet.

In 2011, Egan noticed that his DUI clients were routinely forced to strip at the jail, even when they were being released. Surveillance video he obtained through public records requests confirmed his suspicions. The videos, which were readily available to anyone making a records request, revealed a “significant pattern” of women prisoners being forced to strip naked, change clothes or use the bathroom in areas under video surveillance.

Guards orchestrated “peep shows,” Egan alleged. One woman said jail staff ordered her to undress in what she believed was a private cell. After changing into a uniform, a guard forced her to strip again.

“An officer came in and says something to her and she takes her jail pants off and then her panties,” said Egan. “I thought, ‘this has got to stop.’”

In August 2013, eleven women and one ...

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 1, 2012, Suzanne Barr, a longtime aide to Janet Napolitano when she was governor of Arizona, resigned her position as chief of staff to ICE Director John Morton after a coworker alleged in a lawsuit that Barr had created a sexually-charged “frat house” workplace environment – accusations that Barr dismissed as “unfounded and without any merit” and “designed to destroy my reputation.”

“I feel it is incumbent upon me to take every step necessary to prevent further harm to the agency and to prevent this from further distracting from our critical work,” Barr said in her resignation letter. She had been on voluntary leave since James T. Hayes, Jr., the former director of ICE’s detention and deportation operations in Washington, D.C., filed suit in May 2012.

Hayes’ lawsuit claimed that Barr told a male subordinate at an office party that he was “sexy” and asked about the ...

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 trial for sexually assaulting a prisoner at the District of Columbia Jail.

Dr. Jackson was employed at USP Atlanta, a medium-security male-only prison with an associated minimum-security satellite camp, from January 2011 through July 2012. The indictment alleged that during the course of medical examinations in October 2011, Jackson tried to perform oral sex on three prisoners. He also allegedly attempted to engage in anal sex with one of the prisoners.

Prior to his employment at USP Atlanta, Jackson performed contract work at the D.C. Jail. When he was arrested in Atlanta, he was out on bond on charges of sexually abusing a prisoner at the D.C. Jail in 2008.

A federal grand jury for the Northern District of Georgia indicted Jackson on three counts of sexually abusing a ward and one count of lying to federal agents related to the offenses at USP Atlanta.

Dr. Jackson pleaded ...

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 PLN, convicted rapist Byron Scherf, 55, lured state prison guard Jayme Biendl, 34, into the chapel at the Monroe Correctional Complex, and strangled her to death with an amplifier cord on January 29, 2011. Her body was not found until two hours later. [See: PLN, Jan. 2012, p.38].

Ironically, prior to her death, Biendl had warned officials at the prison about security deficiencies such as insufficient lighting, poor radio communication and a lack of surveillance cameras. Her complaints were ignored.

Scherf, who had spent most of his adult life in prison and was already serving life without parole, confessed to ambushing and murdering Biendl. He said he had attacked her due to something she said to him, which he refused to divulge. “She didn’t deserve to die. She didn’t deserve that,” Scherf told investigators.

He went to trial and on May 9, 2013 a jury convicted him of ...

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 Department of Corrections (PDOC) are made-to-order from a compounding pharmacy. Compounding pharmacies mix medications to order on site; they are largely free of Food and Drug Administration (FDA) quality assurances that apply to standardized drugs. Instead, they are regulated by state law. They also have a history of quality control problems.

For example, a scandal that involved cancer patients receiving chemotherapy drugs containing only a fraction of the proper dosage caused the Missouri State Board of Pharmacy to test drugs from compounding pharmacies from 2006 to 2009. It found 20% of the pharmacies failed the tests, with dosages ranging from zero to 450% of the correct amount. The Austin American-Statesman reported that compounding pharmacies did not deliver drugs of proper dosages in one-third of tests conducted in Texas. Plus a compounding pharmacy in Massachusetts was at the center of a fungal meningitis outbreak in 2012 that killed 48 people.

However ...

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 a county jail and to the county itself.

When Jason Ray Brown, 26, was booked into jail in Wichita County, Texas in July 2004, he told the booking officer that he suffered from autoimmune chronic hepatitis, enlarged veins in the lower esophagus, anemia, jaundice and an enlarged spleen, and that he was under the care of a medical specialist. An hour later he complained of vomiting a small amount of blood.

Licensed vocational nurse (LVN) Michelle George obtained a list of Brown’s medications from his pharmacist, but was told by her supervisor, LVN Rose Ingram, not to order any medication until Brown was seen by the jail’s contract physician, Daniel Bolin.

Just before midnight the next day, Brown vomited a large amount of blood. He told a jailer that he had gastric ulcers and had received 27 units of blood due to internal bleeding within the previous six months. The ...

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, in Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010), the Ninth Circuit held that prison officials may not “shirk their obligations” under the Americans with Disabilities Act (ADA) and Rehabilitation Act by housing state prisoners in county facilities and then claiming no responsibility for their treatment.

“Defendants have the responsibility of ensuring that their prisoners are afforded their rights under the ADA, regardless of where the State incarcerates them,” the appellate court concluded. [See: PLN,Aug. 2012, p.34;Nov. 2011, p.28].

On October 1, 2011, the California legislature adopted California Penal Code § 3056 as part of a “realignment” plan designed to ameliorate prison overcrowding. [See: PLN, June 2014, p.1]. The defendants in Armstrong then argued before the district court that § 3056 absolved them of their responsibility for state prisoners confined in county jails. The court rejected that argument in two separate orders ...

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 passed bills related to the commercial use of mug shots, including Georgia, Texas, Oregon, Illinois, Colorado, Wyoming and Utah; similar legislation has been introduced in over a dozen other states, including California, Florida, New Jersey and Missouri.

In Georgia, mug shots were removed from law enforcement websites as of July 1, 2014. People can still obtain mug shots through public records requests, but must provide a statement that they will not post the photos online and charge a removal fee.

Using mug shots as a business model has been a growing and apparently profitable trend. [See: PLN, Oct. 2012, p.36]. Around 11.6 million people cycle in and out of jails in the U.S. each year, which creates a lucrative market for dozens of mug shot websites.

When South Carolina defense attorney Seth Rose found his client’s booking photos on a site that charged almost $400 to remove ...

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 pay their court-appointed attorney’s expenses. However, a court “lacks authority” to impose such fees unless it determines that the defendant “is or may be able to pay them.” That determination must be supported by the record and is not satisfied “by a speculative possibility that a defendant may receive a gift, inheritance, or other windfall.”

Larry Lynn Wallace pleaded no contest to murder with a firearm in exchange for a sentence of life imprisonment with a 25-year minimum. Additionally, the prosecutor asked the court to sentence Wallace to pay $37,400 in court-appointed attorney fees plus $26,018.09 in restitution, a $607 unitary assessment and a $35 offense surcharge. The prosecutor made no showing that Wallace had the ability to pay any of the requested financial assessments, other than speculative conjectures. Noting that Wallace had been receiving Social Security disability payments prior to his incarceration, his attorney ...

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. § 47:1A-1 to -13. The decision was affirmed on appeal.

CEC operates Delaney Hall, a prison-like facility, for Essex County. The company contracts with Education and Health Centers of America (EHCA), a private non-profit entity, and EHCA contracts separately with the county to manage the facility.

John Paff filed an application in state court to require CEC to comply with his OPRA request for disclosure of records, including attorney billing records and personnel files for three CEC employees. The company opposed his request, arguing it was not subject to OPRA because it was not a “public entity.”

The court held that records subject to OPRA are limited to those kept or filed by any officer, commission, agency or authority of the state or political subdivision thereof in the course of the government’s official business. “OPRA defines ‘public agency’ to include ‘any of the principal departments in the Executive ...

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 qualified persons in this state are being excluded from jury service because of race.”

Peremptory challenges date back to 13th century England, Gonzalez noted. Since the king was allowed to remove potential jurors for cause, peremptory challenges were created to make trials more fair.

Washington’s territorial legislature adopted peremptory challenges, without debate, more than 150 years ago. The practice is permitted in all states.

Today, prospective Washington jurors may be removed for cause based on evidence of potential impartiality. The defense and prosecution are also allowed three peremptory challenges each to remove jurors for no reason at all, so long as it’s not for purposeful discrimination.

In Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court attempted – but failed – to eliminate institutional discrimination during the jury selection process.

“Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains ...

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, “without any lawful reason, decided that Billy Julian should be a suspect.” They coerced another suspect and other witnesses into fingering Julian. Police investigators “knew the accusations were false – the officers had fabricated them and fed them to the witnesses.”

Julian was criminally charged in April 2001, and convicted and sentenced to 15 years in prison in March 2003. He later prevailed in a post-conviction appeal by proving that a key prosecution witness had lied about being at the crime scene with him. The witness was on house arrest and wearing a GPS monitor at the time, and the monitor indicated that he had not left his home on the night the crime occurred.

Julian was released from prison in 2006. After the state unsuccessfully appealed, prosecutors decided to retry him in December 2007.

Police threatened Julian in an effort to deter him from pursuing a malicious ...

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 on the prison crisis in the Central American nation might lead to reforms. [See: PLN, July 2013, p.52]. However, such reforms have failed to materialize.

Take, for example, the prison at San Pedro Sula (SPS), which the Associated Press was allowed to tour in May 2012. The prison, built for 800, houses over 2,000 prisoners. And the guards were not in control of the overcrowded facility – the prisoners were.

When the AP made arrangements to visit SPS, they didn’t seek authorization from prison officials; rather, they needed permission from the prisoner in charge, Noe Betancourt. Betancourt even provided a security team of eight prisoners to escort the journalists during their tour of the facility.

The prison is essentially an autonomous town complete with women, children, businesses and a marketplace. What the AP reporters didn’t see was any guards. During the day, guards do not go past a ...

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 Crowley suffers from bipolar disorder, delusions, Parkinson’s disease and hypertension. While confined at the Lovelock Correctional Center (LCC), he was prescribed Lithium three times a day.

After Crowley was transferred to the High Desert State Prison on April 16, 2009, however, his prescription for Lithium was changed to larger doses twice a day. Prison officials claimed that Dr. Daniel Sussman altered the prescription, though he had not examined Crowley.

On May 10 and 14, 2009, Crowley’s cellmate alerted medical staff that Crowley was unresponsive and acting “bizarre.” They did nothing until admitting him to the infirmary on May 16, when a guard reported similar unusual behavior.

A physician examined Crowley two days later and sent him to a hospital emergency room. He remained hospitalized for three weeks, undergoing treatment for Lithium toxicity and dehydration.

Crowley filed suit in federal court alleging that prison medical staff were deliberately indifferent to ...

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 may petition for post-conviction DNA testing under K.S.A. 21-2512. Second-degree murderers, however, are ineligible for similar DNA testing.

In 1993, Jerome Cheeks was convicted of second-degree murder and sentenced to 15 years to life imprisonment. Over a decade later he filed a pro se petition, pursuant to § 21-2512, for DNA testing of 30 items collected from the crime scene. His petition was summarily denied, with the court finding that Cheeks was ineligible for DNA testing under the statute’s plain language.

The Kansas Supreme Court reversed, concluding that first- and second-degree murderers are “similarly situated” because they receive the same maximum sentence of life imprisonment.

The Court then applied the “rational basis test,” noting that it had previously held in State v. Denney, 278Kan. 643, 101 P.3d 1257 (Kan. 2004),that neither cost nor severity of the crime justifies excluding similarly situated offenders from DNA testing ...

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 November 27, 2013, a federal grand jury indicted Cotney on eight counts of deprivation of rights under color of law in connection with those same accusations. He pleaded guilty to the charges and was sentenced in May 2014 to four years in federal prison.

Albania: On November 23, 2013, seven prisoners serving life sentences for murder escaped from the Drenova Prison. Police described the escapees as armed and dangerous, and advised residents to remain behind closed doors. The neighboring countries of Greece and Macedonia also were warned of the escape, which involved the prisoners disarming a guard and fleeing by car during severe weather, resulting in a massive manhunt.

Arizona: On November 22, 2013, the Arizona Department of Corrections issued a press release describing the arrests of a former guard and an ASPC Winslow prisoner who had allegedly extorted another prisoner and his family. The scheme involved former guard Jordan ...


 

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