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Prisoner Education Guide

Prison Legal News: February, 2015

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Volume 26, Number 2

In this issue:

  1. Prison Legal News Interviews Musician Wayne Kramer (p 1)
  2. From the Editor (p 12)
  3. Dialing with Dollars: How County Jails Profit From Immigrant Detainees (p 14)
  4. Texas: $100 Medical Copay for Prisoners Generates Less Revenue than Expected (p 18)
  5. Washington DOSA Revocation Requires Credit for Community Custody Time (p 19)
  6. Five Deaths in Eleven Months at California Jail Spark Grand Jury Probe (p 20)
  7. Wisconsin Prison Guard Union Faces Challenges (p 22)
  8. Eighth Circuit: No Qualified Immunity for Jail Prisoner Raped in Unlocked Cell; $60,000 Verdict at Trial (p 23)
  9. Court Finds PLN’s Rights Violated by Arizona Jail; Case Settles for $15,293 (p 24)
  10. Eighth Circuit: Deliberate Indifference Standard GovernsMedical Care for Civilly Committed Detainees (p 24)
  11. Life Sentences Spike in Recent Years – Especially in Utah (p 26)
  12. Montana: Extradition Costs Not Recoverable as Restitution (p 27)
  13. California: Local Ordinances Banning Sex Offenders from Parks Invalidated (p 28)
  14. United States, Britain Offer Training to “Improve” Prison Conditions in Afghanistan (p 30)
  15. Seventh Circuit: Dismissal due to Nonpayment of Filing Fee Requires Assessment (p 31)
  16. Eighth Circuit: Jail Guards Denied Summary Judgment for Use of Force against Detainees (p 32)
  17. Eighth Circuit: Ruling Required on Prison Officials’ Qualified Immunity Defense (p 34)
  18. Second Circuit: Brady Claim Not Barred by Heck (p 35)
  19. Book Review: Burning Down the House, by Nell Bernstein (The New Press, June 2014). 384 pages, $26.95 (p 36)
  20. For Shame! Public Shaming Sentences on the Rise (p 38)
  21. Ninth Circuit: Indefinite Stay and Denial of Guardian was Abuse of Discretion (p 42)
  22. Native American Prisoners Have Right to Tobacco in Religious Ceremonies (p 42)
  23. Georgia’s Execution Drug Secrecy Law Found Constitutional (p 43)
  24. Misconduct at Washington State Civil Commitment Center as Concern Grows Over Releases (p 44)
  25. Eighth Circuit Reverses Dismissal of Prisoner’s ADA/RA Claims (p 46)
  26. Prison Violence in Brazil Connected to Abuse, Gangs, Overcrowding (p 46)
  27. Private Prison Companies Reject Resolutions to Fund Rehabilitative, Reentry Programs (p 48)
  28. Fifth Circuit Reverses Dismissal of Prisoner’s Suit Claiming Lack of Medical Care (p 48)
  29. GEO Group Rescinds $6 Million Donation to Name Stadium at Florida University (p 50)
  30. Georgia’s High Court Finds No Categorical Right to Counsel in Civil Contempt Proceedings (p 51)
  31. Change in Florida Jail Policy Leads to Increased Homelessness (p 52)
  32. Eighth Circuit: Atheist Prisoner States Coerced Religious-Based Treatment Claim (p 52)
  33. Tennessee Jail Breached Duty to Provide Medical Care; Damages Trial Ordered (p 54)
  34. Ninth Circuit: Abstention Inapplicable in First Amendment Cases (p 54)
  35. News in Brief (p 56)

Prison Legal News Interviews Musician Wayne Kramer

Prison Legal News Interviews Musician Wayne Kramer

On October 13, 2014, PLN editor Paul Wright interviewed Wayne Kramer at his office in Los Angeles. Mr. Kramer is a musician, singer, songwriter and producer; he also served more than two years in federal prison in the 1970s. He has released a number of albums and was ranked by Rolling Stone as one of the 100 greatest guitarists of all time.

More recently Mr. Kramer has performed at numerous prisons, including a 2009 event at the California State Prison in Lancaster, and co-founded Jail Guitar Doors USA, which provides instruments, musical lessons and concerts in prisons nationwide. [See: PLN, Oct. 2011, p.42].

 

PAUL WRIGHT: Could you tell our readers a little bit about your experience as a musician and how long you’ve been a musician and what bands you played with?

WAYNE KRAMER: Sure. I’ve been a musician since just after the earth cooled.

PW: Which is a long time.

WK: I’m 66 years old now. I started when I was 16 as a professional. I grew up in Detroit and played in the clubs there and then in the late ‘60s founded a band called the MC5 which gained ...

From the Editor

From the Editor

by Paul Wright

It has been said that freedom of the press is neither free nor cheap. On January 5, 2015, a trial commenced in the courtroom of U.S. District Court Judge Mark Walker in Tallahassee, Florida. Prison Legal News is suing the Florida Department of Corrections for censoring and banning our publication in all Florida prisons starting in 2009, supposedly due to our advertising content.

The Florida DOC, alone among other prisons and jails in America, claims that PLN’s advertising threatens its prison system – the same prison system which has seen its former Secretary of Corrections and dozens of other employees go to prison for corruption. The same prison system where staff routinely murder prisoners in the most brutal manner. The same prison system which has seen its prisoner medical death rate go from an average of 35 a year to over 340 a year after privatizing its healthcare services. The same prison system that has gone through five Secretaries in the past decade.

Unlike the Florida DOC, nothing that PLN has ever written or advertised has harmed anyone, much less seen them beaten to death, as was Florida death row prisoner Frank ...

Dialing with Dollars: How County Jails Profit From Immigrant Detainees

Dialing with Dollars: How County Jails Profit From Immigrant Detainees

County jails charge excessive rates for phone usage – a huge barrier for immigrant detainees fighting deportation.

by Leticia Miranda

Arali was at home with her three-year-old son, Jose, when she got a call from Suffolk County Jail, a correctional facility about half an hour from her apartment in Framingham, Massachusetts. Her husband, Milton, was on the other end of the line. In tears, Milton explained to her that he had been detained after being in a car that was pulled over for a minor traffic violation.

Both Milton and Arali are undocumented immigrants from Guatemala. Milton migrated to the United States at twenty-one years old in 2005 following a hurricane that devastated his farm and much of Guatemala’s highland region, leaving him without a source of income to support his two children. Since then, Milton’s family back in Guatemala has been overwhelmed by the drug and gang-related violence that has ravaged the country over the last three decades. Drug traffickers recently killed Milton’s cousin. For Milton, deportation could mean risking death.

Milton, who prefers to use only his first name because of his open immigration case, was carpooling with ...

Texas: $100 Medical Copay for Prisoners Generates Less Revenue than Expected

In October 2011, when Texas enacted a law instituting a $100 annual copay for state prisoners seeking medical care, it was estimated the measure would generate $5.7 million in 2012 and help the cash-strapped state deal with a budget crisis. [See: PLN, Oct. 2012, p.42]. Instead, only $2.5 million was collected that year. Since the prison system’s prior $3.00 medical copay had generated $500,000, the net gain was $2 million – less than half the anticipated amount.

“Quite frankly, it doesn’t make much of a difference,” stated Dr. Owen Murray, vice president for Correctional Managed Health Care at the University of Texas Medical Branch, which administers medical treatment for over two-thirds of the state’s prison population. “The financial expectations for the program have not been met.”

In fact, the new law might be increasing the burden to taxpayers with respect to prisoner health care. In a classic case of unintended consequences, the cost of medical treatment may be higher as many Texas prisoners avoid seeking medical attention in an attempt to avoid the $100 annual copay. Sometimes, this allows an easily-treated-if-caught-early condition, such as a staph infection, to advance to a serious and ...

Washington DOSA Revocation Requires Credit for Community Custody Time

Washington DOSA Revocation Requires Credit for Community Custody Time

by Mark Wilson

On November 26, 2013, the Washington State Court of Appeals held that when a “drug offender sentencing alternative” (DOSA) is revoked, the court must award credit for time the offender served in community custody.

In June 2012, Gabriel Lee Bercier pleaded guilty to a methamphetamine possession charge. He was sentenced to a 24-month community custody term in the form of a residential treatment-based DOSA sentence.

When Bercier failed to comply with the residential treatment conditions, the sentencing court revoked his DOSA sentence in January 2013 and imposed a prison term pursuant to RCW 9.94A.660(7)(c). The court specifically denied Bercier credit for time served in community custody in violation of RCW 9.94A.660(7)(d), which mandates credit for “any time previously served” – including community custody in the form of a residential treatment-based DOSA sentence.

After unsuccessfully moving the sentencing court for a modified judgment, the Department of Corrections petitioned the Washington Court of Appeals for post-sentence review under RCW 9.94A.585(7).

The appellate court rejected the state’s argument that RCW 9.94A.660(7)(d) provides “credit solely for jail ...

Five Deaths in Eleven Months at California Jail Spark Grand Jury Probe

Five Deaths in Eleven Months at California Jail Spark Grand Jury Probe

A Santa Cruz County, California grand jury investigation concluded that a multitude of breakdowns contributed to the deaths of five jail detainees over an 11-month period between August 2012 and July 2013.

Four of the deaths occurred after the county contracted with the for-profit California Forensic Medical Group (CFMG) to provide health care at the jail as a money-saving measure, but the grand jury panel found the company only partly to blame for circumstances surrounding the deaths. The panel noted in a report released in May 2014 that in several cases, jail guards were just as much or more at fault.

On August 25, 2012, Christy Sanders, 27, died of a massive infection between her lungs and ribs which, according to the Sheriff Coroner’s Office, “had been developing over a period of weeks.” Her lungs reportedly collapsed due to a build-up of pus as a result of the infection; she also had hepatitis C and had repeatedly complained of difficulty breathing. The grand jury said the local hospital at first misdiagnosed Sanders and later corrected the diagnosis, but failed to inform the jail.

Medical staff at the ...

Wisconsin Prison Guard Union Faces Challenges

Wisconsin Prison Guard Union Faces Challenges

by Derek Gilna

A 2013 memo issued by then-incoming Wisconsin Department of Corrections (DOC) Secretary Edward F. Wall, in which he warned DOC employees to stop spreading rumors, was apparently another example of contentious relations between the state and its prison guards, and among the guards themselves.

Wall’s memo to a department worker, obtained by the Associated Press and published on February 1, 2013, warned DOC staff to stop spreading “false and malicious information,” which he said was undermining morale. The memo was verified by Wall’s office.

Wall was reacting to rumors which falsely claimed that Wisconsin Governor Scott Walker was considering privatizing the state’s prison system and that the state was building another prison, and which spread “exaggerated descriptions of physical trauma suffered by” DOC employees in prisoner-on-staff assaults. Wall felt that publicity about the assaults was unwarranted, yet added, “It doesn’t mean that the assaults were not serious ... but that the resulting physical trauma may not have been as serious as described....”

In 2011, Walker had approved a change in Wisconsin law that stripped public unions in the state of most of their collective bargaining rights and made union membership ...

Eighth Circuit: No Qualified Immunity for Jail Prisoner Raped in Unlocked Cell; $60,000 Verdict at Trial

Eighth Circuit: No Qualified Immunity for Jail Prisoner Raped in Unlocked Cell; $60,000 Verdict at Trial

by Mark Wilson

On May 20, 2014, the Eighth Circuit Court of Appeals affirmed the denial of qualified immunity to a Missouri jail administrator in a case involving the rape of a pretrial ...

Court Finds PLN’s Rights Violated by Arizona Jail; Case Settles for $15,293

Court Finds PLN’s Rights Violated by Arizona Jail; Case Settles for $15,293

A federal district court in Arizona held that officials at the Pinal County Jail (PCJ) in Florence, Arizona violated Prison Legal News’ First and Fourteenth Amendment rights by censoring PLN publications. The court denied qualified immunity to ...

Eighth Circuit: Deliberate Indifference Standard GovernsMedical Care for Civilly Committed Detainees

Eighth Circuit: Deliberate Indifference Standard GovernsMedical Care for Civilly Committed Detainees

by Mark Wilson

On February 4, 2014, the Eighth Circuit reversed a district court’s denial of qualified immunity, finding that it had applied the wrong constitutional standard.

Daniel J. Scott was involuntarily committed to the Iowa Civil Commitment Unit for Sexual Offenders (CCUSO). In August 2010, he discovered two hard boils on his buttocks. On August 16, 2010, Nurse Practitioner Mary Benson examined the area and found “two ‘superficial scratches, not boils.’” She prescribed antibiotics.

Scott again sought treatment nine days later, but Benson refused. “There’s nothing wrong with you, all you are wanting is attention—stop it now,” she said.

On August 27, 2010, Benson saw Scott for “a pinpoint hole that exuded purulent drainage.” A stronger antibiotic was ordered.

The following month, Benson refused to examine Scott because it was a holiday weekend and the medical clinic was closed, though she provided a telephone consultation.

On September 7, 2010, Benson saw Scott and “observed a ‘foul odor coming from Mr. Scott’s perianal area.’” Scott was sent to a hospital where he underwent two surgeries to remove diseased tissue. While hospitalized he suffered a heart ...

Life Sentences Spike in Recent Years – Especially in Utah

Life Sentences Spike in Recent Years – Especially in Utah

A recent research study and news reports have revealed an increase in the number of prisoners across the nation – and particularly in Utah – sentenced to life in prison with no possibility of parole.

In a report released in September 2013, The Sentencing Project found that since 1984, the number of life sentences has quadrupled to an “unprecedented level.” A survey of all 50 states and the federal Bureau of Prisons by the Washington, D.C.-based nonprofit organization reported that of the approximately 160,000 prisoners sentenced to life nationwide, 50,000 are not eligible for parole – an increase of 22% since 2008.

In Utah, data gathered by The Sentencing Project supported independent research by The Salt Lake Tribune that found 105 first-degree felony offenders were serving life sentences, with another 1,943 prisoners serving five years to life on first-degree felony convictions.

Additionally, research shows the chances that any of those prisoners will be paroled are becoming increasingly slim as the Utah Board of Pardons and Parole exercises its power under the state’s indeterminate sentencing scheme. The Sentencing Project noted that prisoners tend to be ...

Montana: Extradition Costs Not Recoverable as Restitution

Montana: Extradition Costs Not Recoverable as Restitution

by Mark Wilson

The Montana Supreme Court has unanimously held that a restitution order for extradition costs is invalid.

Mark M. Macy, Jr. was convicted of various felony offenses in Montana. He was transferred to a pre-release center in October 2010, but absconded and fled to Idaho.

On February 7, 2011, Idaho police attempted to stop Macy’s vehicle for speeding. He led them on a high speed chase before police officers fired over a dozen rounds into his vehicle, injuring him and killing his wife.

Macy was arrested and extradited to Montana, where he pleaded guilty to escape.

He was sentenced to 10 years in prison with two suspended and ordered “to pay restitution to the State in the amount of $694.50 for the costs incurred in extraditing him back to Montana.”

The state Supreme Court reversed the lower court’s restitution order on February 11, 2014. Under Montana law, restitution may be collected by “a governmental entity only when that entity suffers property damage in the commission of a crime, or incurs costs in the investigation or apprehension of an escaped person.”

Noting that it had previously held that extradition ...

California: Local Ordinances Banning Sex Offenders from Parks Invalidated

California: Local Ordinances Banning Sex Offenders from Parks Invalidated

by Mark Wilson

On April 23, 2014, the California Supreme Court refused to review two lower court decisions that invalidated local ordinances barring sex offenders from parks and other public places.

In 2006, California voters passed Jessica’s Law, which, among other provisions, prohibits registered sex offenders from living within 2,000 feet of schools and parks. Some prosecutors have complained that such restrictions do not go far enough.

Orange County District Attorney Tony Rackauckas spearheaded efforts to tighten restrictions on sex offenders by enacting city and county ordinances banning them from parks and other public areas. The ordinances spread like wildfire across California, as Rackauckas advised communities on how to implement similar bans.

A total of 70 California cities and five counties ultimately enacted such measures according to Janice Bellucci, a Santa Maria attorney and president of a group called California Reform Sex Offender Laws, an affiliate of the national organization Reform Sex Offender Laws (RSOL).

El Dorado County District Attorney Vern Pierson blamed state lawmakers for the local ordinances. “This is more than anything else due to the Legislature’s inability to craft appropriate legislation to control the behavior and conduct ...

United States, Britain Offer Training to “Improve” Prison Conditions in Afghanistan

United States, Britain Offer Training to “Improve” Prison Conditions in Afghanistan

While attempting to liberate Afghanistan from the tyranny of the Taliban, the U.S. and Great Britain have given the Afghans incarceration-related tools and training, ostensibly to improve conditions in that nation’s prisons.

Since 2011, the U.S. State Department has operated the International Correctional Management Training Center (ICMTC) in Cañon City, Colorado, where prison wardens from Afghanistan have learned how to manage their facilities and prisoners.

The ICMTC, funded by a $1.6 million federal grant, uses Colorado Department of Corrections (CDOC) staff on the site of a decommissioned state prison for women to teach the Afghans – and a host of prison officials from other nations, including Mexico, Brazil, Morocco and Lebanon – how to handle their most dangerous prisoners, usually through solitary confinement.

A written statement issued jointly by the U.S. Department of State and Colorado Correctional Industries, a division of the CDOC, describes the training center’s mission as offering correctional programs “to assist nations, particularly those in conflict, emerging from conflict, and emerging democracies so that they may develop and sustain the capacities to operate prisons and correctional systems that are safe, secure, humane, and transparent and conform to internationally ...

Seventh Circuit: Dismissal due to Nonpayment of Filing Fee Requires Assessment

Seventh Circuit: Dismissal due to Nonpayment of Filing Fee Requires Assessment

by Mark Wilson

The Seventh Circuit Court of Appeals held in March 2014 that a district court had abused its discretion when it dismissed a prisoner’s suit for failure to pay a filing fee without determining his ability to pay.

Indiana prisoner Leonard Thomas filed suit in 2012, alleging inadequate medical care for his epilepsy. He moved to proceed in forma pauperis based on a prison trust account balance of $0.02 and an average monthly balance of $43.50.

The district court granted his motion, assessed a partial filing fee of $8.40 and ordered Thomas to pay the fee within three weeks. When he failed to do so, the court dismissed his lawsuit without prejudice.

Thomas objected, claiming he had no money or income and that any money he received was automatically deducted from his account and applied to the debt he had incurred when printing his complaint. The court ignored his letter and he appealed.

“Although the district court properly assessed the initial partial filing fee,” the Seventh Circuit concluded that it had “abused its discretion by dismissing the case without determining whether Thomas was ...

Eighth Circuit: Jail Guards Denied Summary Judgment for Use of Force against Detainees

Eighth Circuit: Jail Guards Denied Summary Judgment for Use of Force against Detainees

by David Reutter

On April 24, 2014, the Eighth Circuit Court of Appeals affirmed the denial of summary judgment to jail guards accused of using excessive force on pre-trial detainees while quelling a riot. However, the appellate court also granted summary judgment to the sheriff, and a subsequent trial resulted in only nominal damages.

The five plaintiffs in the case were pre-trial detainees held at the Faulkner County Detention Center in Arkansas. They were housed in Pod B of Cell 309 on October 24, 2010 when other detainees in Pods A and C created a disturbance in the day room, stopping up a toilet, yelling and banging on the metal pod doors, and covering the main cell door with a mattress and the window on that door with paper.

The detainees in Pod B did not participate in the disturbance; to keep water from flowing into their pod, they placed a blanket in the doorway. One of the detainees in the day room ran past the pod door and pushed it shut, wedging the blanket under the door.

Guards responded to the riot armed with bean-bag guns ...

Eighth Circuit: Ruling Required on Prison Officials’ Qualified Immunity Defense

Eighth Circuit: Ruling Required on Prison Officials’ Qualified Immunity Defense

by Mark Wilson

The Eighth Circuit Court of Appeals has held that a district court erred in failing to resolve a motion to dismiss based on qualified immunity with respect to a prisoner’s claims related to interference with his mail.

Between October 13, 2010 and March 23, 2011, Nebraska prison officials confiscated prisoner Christopher Payne’s incoming and outgoing mail. Payne is incarcerated for sexual assault of a child, and the officials claimed “the censored correspondence was pedophilia-related and included efforts by Payne to obtain sexually related stories, pictures, and information about children, including information about Payne’s prior victims.” Prison officials alerted the FBI, which declined to open a criminal investigation.

Payne filed suit in federal court for interference with his incoming and outgoing regular mail (not legal mail). He strongly disputed the claim that his letters were “pedophilia-related.”

The defendants moved to dismiss on qualified immunity grounds. Rather than rule on that motion, the district court ordered them to supplement the record with evidence supporting their qualified immunity defense. The court also treated the motion to dismiss as a summary judgment motion since it considered matters outside the ...

Second Circuit: Brady Claim Not Barred by Heck

Second Circuit: Brady Claim Not Barred by Heck

by Mark Wilson

The en banc Second Circuit Court of Appeals has held that a Brady claim is not Heck-barred when a defendant’s conviction is vacated but he subsequently pleads guilty to a lesser charge in exchange for immediate release.

During a March 1997 robbery, two men shot New York cab driver Younis Duopo. Only a spent shell casing, five one-dollar bills and a black hat were found during an initial search.

The next day a detective searched the cab again and supposedly discovered a wallet containing two identification cards belonging to Francisco Poventud. The ID cards were used to create a photo array that was shown to Duopo, and he unequivocally identified Francisco as the shooter.

Francisco, however, had an iron-clad alibi: he was incarcerated when Duopo was shot. So detectives focused on Francisco’s brother, Marcos Poventud, even though he did not resemble the photo of Francisco that Duopo had identified as the shooter.

“On consecutive days one week after the crime,” detectives “showed Duopo photo arrays containing [Marcos] Poventud’s picture,” but Duopo did not identify him as the perpetrator. One day later, Duopo was shown Marcos’ photo ...

Book Review: Burning Down the House, by Nell Bernstein (The New Press, June 2014). 384 pages, $26.95

by Hannah K. Gold

By the time I was 7 years old I knew drugs were bad. I didn’t need a parent to sit me down on their knee and tell me this because Saturday morning cartoons were frequently interrupted by an advertisement brought to me by Partnership for a Drug-Free America in which an 18-year-old Rachael Leigh Cook smashed an egg, and then her entire kitchen, and told me this was so.

I didn’t know this mid-90s commercial was a revamp of an even more famous 1987 advertisement featuring a white, male authority figure and that same sinister egg. I didn’t know about the war on drugs, but I knew that Cook had the haircut I wanted. I couldn’t have known from this advertisement that kids not too much older than myself, swept up in the hysterical rhetoric of an inner-city epidemic of drugs and violence, were being locked up in droves, and that increasingly, these were children of color. The advertisement said drugs crack kids’ brains on stovetops; the other, silent reality was that the war on drugs cracked kids’ brains in solitary.

That’s still the reality today. In the United States, it tends to be the case ...

For Shame! Public Shaming Sentences on the Rise

For Shame! Public Shaming Sentences on the Rise

by David M. Reutter

Punishments intended to shame offenders for wrongdoing, popular throughout history, are once again on the rise – particularly as penalties imposed by judges who enjoy seeing their names in the newspaper or on television due to their “creative” sentencing practices.

Whether judges hand down sentences that humiliate defendants for the purpose of entertainment, self-aggrandizement or as a unique way of deterring crime with a “punishment that fits” is subject to debate. The only certainty is that most sanctions designed to shame offenders are legal, so long as judges do not go too far.

Shaming criminals has long been an integral part of America’s criminal justice system, and public whipping and the stocks were commonly used in Puritan and colonial times. During that era, imprisonment was reserved for debtors and those awaiting trial; upon conviction, a judge could order an offender to be executed, flogged, banished or shamed.

“While the sentences recognize hope for the individual, they can also be dehumanizing,” said Professor Mark Osler of the St. Thomas University of Law.

Indeed, that was the intent of one colonial judge who sentenced a man convicted of stealing ...

Ninth Circuit: Indefinite Stay and Denial of Guardian was Abuse of Discretion

Ninth Circuit: Indefinite Stay and Denial of Guardian was Abuse of Discretion

by Mark Wilson

On March 24, 2014, the Ninth Circuit held that a district court had abused its discretion in refusing to appoint a guardian ad litem for a pro se prisoner who was legally incompetent.

California state prisoner Kennard Lee Davis suffers from schizoaffective disorder, impulse control disorder and substance-related mental disorder. Since April 2007 he has been under court-ordered, long-term involuntary medication.

In 2008, Davis filed a pro se retaliation and deliberate indifference suit in federal court against staff at CSP Sacramento, alleging that “in retaliation for filing numerous lawsuits and prisoner complaints, prison officials forced him to push a cart containing over 100 pounds of legal documents for over half a mile while handcuffed.” He brought a second retaliation and deliberate indifference suit against prison medical staff in 2010.

While those actions were pending, Davis was also pursuing a federal habeas corpus petition. In that case, he was evaluated by a court-appointed mental health specialist who determined he was incompetent. The habeas court appointed a guardian ad litem, finding that Davis “does not have the ability to consult with his lawyer with a reasonable ...

Native American Prisoners Have Right to Tobacco in Religious Ceremonies

Native American Prisoners Have Right to Tobacco in Religious Ceremonies

by David Reutter

The Eighth Circuit Court of Appeals has affirmed a South Dakota federal district court’s order holding that Native American prisoners have a right under the Religious Land Use and Institutionalized Persons Act (RLUIPA) to use tobacco during ...

Georgia’s Execution Drug Secrecy Law Found Constitutional

Georgia’s Execution Drug Secrecy Law Found Constitutional

by David Reutter

In a 5-2 ruling, the Georgia Supreme Court held on May 19, 2014 that it is not unconstitutional for the state to keep secret the names and other identifying information of persons and entities involved in executions, including those who manufacture lethal injection drugs.

As previously reported in PLN, Georgia amended a state statute effective July 1, 2013 to make “identifying information” concerning those who participate in executions and the procurement of execution drugs a “confidential state secret.” [See: PLN, Feb. 2014, p.37].

Death row prisoner Warren Lee Hill was subject to an execution order issued July 3, 2013 that set his execution for the week of July 13-20. He filed suit in Fulton County superior court seeking “[s]ealed discovery of the identity of the compounding pharmacy and the supply chain and manufacture(s) of any and all ingredients used to produce the lethal drug compound” to be used in his execution.

The superior court granted Hill relief that amounted to a stay of execution, and the Georgia Supreme Court accepted review. The Court initially dealt with the issue of mootness. The drugs obtained for Hill’s ...

Misconduct at Washington State Civil Commitment Center as Concern Grows Over Releases

Misconduct at Washington State Civil Commitment Center as Concern Grows Over Releases

by David M. Reutter

Washington state’s Special Commitment Center (SCC), which was created to house and treat prisoners classified as violent sexual predators, has become the focus of investigations into staff misconduct. Additionally, the growing number of releases from the facility has worried local residents because many of the freed sex offenders are settling in nearby communities.

SCC, located on remote McNeil Island, once housed state prisoners but was taken over by the Washington Department of Social and Health Services after the Department of Corrections ended operations on the island in 2010. [See: PLN, Sept. 2011, p.42]. The facility, which is designed to treat offenders’ mental conditions that cause violent sexual behavior, is also linked to a neighboring halfway house and another halfway house in Seattle.

Sex offenders held at SCC have finished their prison sentences but remain in “civil detention” under a state program that civilly commits offenders who meet the legal definition of violent sexual predator. That decision is made by a jury, in part based on the likelihood that the offender will commit more crimes if released.

SCC has 371 employees. According to an ...

Eighth Circuit Reverses Dismissal of Prisoner’s ADA/RA Claims

Eighth Circuit Reverses Dismissal of Prisoner’s ADA/RA Claims

by Mark Wilson

The Eighth Circuit has reversed in part the dismissal of a Missouri prisoner’s claims related to accommodation of his disabilities.

In 2004, Missouri Department of Corrections (MDOC) prisoner Robert Dinkins began suffering blackouts, weakness and difficulty walking. The prison system’s health care provider, Correctional Medical Services (CMS), failed to properly diagnose or treat him for six months. As a result he did not receive medication that would have slowed the progression of his condition, pernicious anemia. By April 2006, Dinkins was paralyzed from the waist down.

As late as 2010, his condition continued to deteriorate. Rather than assigning him to a Transitional Care Unit, prison officials placed Dinkins in administrative segregation without a wheelchair or handicap access. As a result, he was forced to crawl and eat meals off the floor.

Dinkins requested that prison officials accommodate his disability by providing “someone to push his wheelchair, a handicapped-accessible cell, medically prescribed physical therapy, preventative treatment, examination by an outside specialist, wheelchair accessories, and exemption from activities requiring exposure to cold.” All of his requests were denied, causing him “to miss meals, fall several times in his cell ...

Prison Violence in Brazil Connected to Abuse, Gangs, Overcrowding

Prison Violence in Brazil Connected to Abuse, Gangs, Overcrowding

A wave of riots and killings is sweeping inside and outside prisons in Brazil, but authorities and observers differ on whether the violence is the fault of rival gangs competing for the lucrative drug trade, a protest against horrific conditions in the nation’s chronically overcrowded prison system, retribution for mistreatment by guards or some combination of these factors.

Discontent over conditions at a prison in Cascavel, in southern Brazil, and rivalries between powerful local gangs are blamed for an August 2014 riot that led to the deaths of at least five prisoners and severely damaged the facility.

According to local and international news reports, two of the victims were beheaded while three others were pushed from the top of buildings and plummeted to their deaths. Two prison guards taken hostage during the riot were later released with only minor injuries.

“They are using the severed head of one of the prisoners to inflict psychological torture on one of the hostages,” said Jairo Ferreira, an attorney for the prison officers’ union, during the height of the unrest. “There are scenes of terror inside the jail now,” he told the local ...

Private Prison Companies Reject Resolutions to Fund Rehabilitative, Reentry Programs

Private Prison Companies Reject Resolutions to Fund Rehabilitative, Reentry Programs

On December 23, 2014, GEO Group, the nation’s second-largest for-profit prison firm, demonstrated it was a “grinch” by objecting to a shareholder resolution that would require the company to spend just 5% of its net income “on programs and services designed to reduce recidivism rates for offenders” in GEO-run correctional facilities. Corrections Corporation of America (CCA) filed an objection to a similar resolution in January 2015.

The resolutions were submitted by PLN managing editor Alex Friedmann, who also serves as associate director of the Human Rights Defense Center (HRDC). An activist shareholder, Friedmann owns a small amount of stock in both CCA and GEO Group; in the 1990s he served six years at a CCA-operated facility prior to his release in 1999.

“As a former prisoner, I know firsthand the importance of providing rehabilitative programs and reentry services,” Friedmann stated. “I also know firsthand the incentive of private prisons to cut costs – including expenses associated with rehabilitative programs – in order to increase profit margins.”

Citing data from the Bureau of Justice Statistics, the resolutions note that “Recidivism rates for prisoners released from correctional facilities are extremely ...

Fifth Circuit Reverses Dismissal of Prisoner’s Suit Claiming Lack of Medical Care

Fifth Circuit Reverses Dismissal of Prisoner’s Suit Claiming Lack of Medical Care

by Matt Clarke

On March 12, 2014, the Fifth Circuit Court of Appeals reversed in part a district court’s dismissal of a lawsuit brought by a prisoner who was denied medical treatment after he fell and was injured.

Freddie R. Coleman, a Texas state prisoner, was incarcerated at the Eastham Unit when he slipped in the shower, hurting himself. Six days later he fell in the shower again. In severe pain, Coleman was examined by visiting physician assistant Cheryl McManus, who ordered an X-ray which she said indicated he had arthritis of the hip. The X-ray technician disagreed, but McManus stuck to her opinion, refused to issue pain medication and cleared Coleman to return to work on crutches.

Coleman continued to experience severe pain. He fell in the shower a third time when his crutches slipped. Then the facility was placed on lockdown. During the lockdown, he experienced so much pain that he could not lie in bed or sit on a toilet, and was forced to defecate in a bowl.

Coleman sent repeated written requests for medical assistance to the infirmary. They were answered and disregarded by ...

GEO Group Rescinds $6 Million Donation to Name Stadium at Florida University

GEO Group Rescinds $6 Million Donation to Name Stadium at Florida University

by David M. Reutter

A student-led coalition against naming the Florida Atlantic University (FAU) football stadium after private prison firm GEO Group claimed victory in April 2013, when the company withdrew its $6 million donation to the school for stadium naming rights following a high-profile opposition campaign.

“We won!” enthused a statement from the Stop Owlcatraz Coalition, a group composed of students, faculty and community members that was formed to fight GEO’s attempt to name the football stadium after the company. The coalition took its name from the FAU Owls, the school’s mascot.

“We’d like to thank everyone who signed our petition as well as all other allies and supporters who helped make our victory possible,” the statement continued.

In the aftermath of the controversy, FAU President Mary Jane Saunders resigned her position on May 14, 2013, although university officials said her contract guaranteed her a position at the school at 80% of her former salary. She is now employed as a professor in the university’s College of Science.

Saunders wrote in her resignation letter that “there is no doubt the recent controversies have been significant ...

Georgia’s High Court Finds No Categorical Right to Counsel in Civil Contempt Proceedings

Georgia’s High Court Finds No Categorical Right to Counsel in Civil Contempt Proceedings

by David Reutter

The Georgia Supreme Court affirmed an appellate court’s ruling that decertified a plaintiff class of indigent parents who were jailed without being provided counsel following civil contempt proceedings brought by the state Department of Human Services (DHS). The Court held on July 11, 2014 that there is no categorical right to counsel in such proceedings, and the right “depends upon highly individualized considerations.”

The trial court had certified a class of unrepresented and indigent parents who faced incarceration in civil contempt proceedings in child support cases; the appellate court decertified the class because the named plaintiffs had failed to insist upon counsel in their own proceedings. The Georgia Supreme Court held the right to counsel is not waived “simply by failing to insist upon counsel in proceedings in which no one advised them that they could ask for counsel.”

While it did not agree with the appellate court’s rationale, the Supreme Court, citing precedent, held “the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings brought by an agency represented by a lawyer.”

“[W ...

Change in Florida Jail Policy Leads to Increased Homelessness

Change in Florida Jail Policy Leads to Increased Homelessness

by David M. Reutter

For those without resources or help from family or friends, being released from jail has always been difficult. A change in policy in Broward County, Florida is leaving even those who have someplace to go stranded and in some cases homeless.

The Broward County Jail releases, on average, 150 people each day at all hours, including late at night. Until recently, people released from the jail could receive a free bus ticket, enabling them to leave the county. In fact, the program helped 140 homeless men and women relocate in 2013.

But policy changes by the Broward County Commission now require six months of residency before released prisoners qualify for a free bus ticket. To make it even more difficult for people leaving the jail, the City of Fort Lauderdale has discontinued funding its $25,000 busing program.

As a result of these policy changes, the county and city are contributing to the homeless population – one released prisoner after another. Those who leave the jail with no money and no friends or relatives, and no transportation options, have little choice but to wander the streets.

The ...

Eighth Circuit: Atheist Prisoner States Coerced Religious-Based Treatment Claim

Eighth Circuit: Atheist Prisoner States Coerced Religious-Based Treatment Claim

by Mark Wilson

On March 28, 2014, the EighthCircuit Court of Appeals reversed a lower court’s sua sponte dismissal of a prisoner’s coerced religious-based treatment claim.

Missouri prisoner Randall Jackson is an atheist who was required to attend the Offenders Under Treatment Program (OUTP), a substance abuse program, at the Western Reception, Diagnostic and Correctional Center. He understood that he would not be given early parole consideration unless he completed the program.

According to Jackson, OUTP “had required meetings [and] invoked religious tenets by using the serenity prayer and religious meditations.” When he objected to the prayer, staff told him “to ‘act as if,’ a term used in the program, meaning to ‘assume a role or attitude even if you don’t feel like it’ and further defined as ‘[a] tool used to assist one in “trying on” new patterns of thought and behavior.’” They also told him to “use God as an acronym for ‘good orderly direction.’”

Jackson felt “coerced by and through an atmosphere designed and intended to change or alter [his] thinking and behavior.” Conformity was induced “by adding pressure and leverage through ...

Tennessee Jail Breached Duty to Provide Medical Care; Damages Trial Ordered

Tennessee Jail Breached Duty to Provide Medical Care; Damages Trial Ordered

by David Reutter

he Tennessee Court of Appeals has held the Tipton County Jail (TCJ) breached its duty of care by failing to provide a pre-trial detainee with proper medical treatment. The ruling reversed a trial court’s judgment following a bench trial.

Marcus K. Payne was booked into TCJ on March 1, 2004. He did not receive a physical examination within 14 days as required by both TCJ policy and the rules of the Tennessee Corrections Institute, because TCJ was operating under an unwritten policy that did not require an intake examination if one had been conducted within the past year.

Payne had previously been booked into TCJ in July 2003. At a physical exam performed at that time, the jail’s doctor recorded blood pressure readings of 184/122 and 168/118. He noted “HTN” (hypertension) and recommended lifestyle changes.

On April 22, 2004, Payne began complaining of headaches and was given ibuprofen. The headaches continued, and Sgt. Brenda Marbry filled out a request for him to be seen by the jail physician. She later testified that Payne was never actually examined by a doctor, but the doctor prescribed ...

Ninth Circuit: Abstention Inapplicable in First Amendment Cases

Ninth Circuit: Abstention Inapplicable in First Amendment Cases

by Mark Wilson

On April 7, 2014, the Ninth Circuit Court of Appeals held that a district court had improperly abstained from hearing a claim that a state court violated the First Amendment by denying prompt access to newly-filed complaints.

Courthouse News Service (CNS) is a national news wire service that reports on civil lawsuits in state and federal courts. It publishes sixteen reports on new litigation in California courts alone.

About 3,000 law firms, university and law school libraries, individuals and major media outlets, including the Los Angeles Times and Boston Globe, subscribe to CNS’ news service. CNS sends email alerts to subscribers concerning new court filings; it also maintains a website with news stories and commentary freely available to the general public.

More than one hundred CNS reporters visit courthouses around the country each day to review recently-filed civil complaints, and are generally able to access the complaints on the same day they are filed.

For many years, California’s Ventura County Superior Court granted CNS reporters same-day access to newly-filed complaints. However, court staff began withholding complaints until after they had been fully processed, which delayed CNS’ access to ...

News in Brief

News in Brief

Arizona: Ruth Alvarez was battling breast cancer when she was arrested and jailed in Maricopa County for working under a false identity and being in the country illegally. In an unprecedented plea deal, Alvarez was released on April 17, 2014 so she could continue the cancer treatments she had begun prior to her incarceration. Attorney Jose Peñalosa, who represents Alvarez, said the Maricopa County Attorney’s decision to release her was a rare humanitarian gesture. “It’s an exceptional case,” said Peñalosa, who noted it was the first of its kind he had seen in his 20 years of practice.

Arkansas: In an impassioned letter to the governor seeking a pardon, Kyle Beebe wrote, “Mr. Governor, I am asking for a second chance at life. I am asking for a second chance to be the man that I know that I can be.” Governor Mike Beebe – Kyle Beebe’s father – agreed on November 13, 2014 to pardon his son for a 2003 felony marijuana conviction. The governor told KATV reporters that he “would have done it a long time ago if [his son had] asked, but he took his sweet time about asking.” Governor Beebe ...


 

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Prisoner Education Guide side

 



 

Federal Prison Handbook

 



 


 

Disciplinary Self-Help Litigation Manual