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Prisoner Education Guide

Prison Legal News: March, 2015

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Volume 26, Number 3

In this issue:

  1. Screening Out Family Time: The For-Profit Video Visitation Industry in Prisons and Jails (p 1)
  2. Private Prison Information Act Reintroduced in Congress with PLN’s Help (p 13)
  3. From the Editor (p 14)
  4. Michigan Governor Lacks Authority to Revoke Commutations (p 15)
  5. Murders in Maryland Prisons Continue Despite Reforms (p 16)
  6. Texas Sex Offender Oversight Agency Faces Investigations, Calls for Reform (p 18)
  7. Arizona DOC Director Blames Job Stress for Hundreds of Employee Arrests (p 20)
  8. The United States and Torture (p 22)
  9. Ninth Circuit Reverses Dismissal of California ADA Suit Against Parole Officers (p 23)
  10. Federal Court Caseloads Threaten Constitutional Protections (p 24)
  11. Lawsuits Over Riot at CCA Prison in Colorado Settle for $600,000 (p 26)
  12. Third Circuit Affirms Nominal Damages, Reverses PLRA Fee Cap Order (p 28)
  13. “Damning” Audit Sharply Criticizes Corizon in Allegheny County, Pennsylvania (p 30)
  14. Georgia Deputies Liable for Detaining and Stripping Man in Debt Judgment Execution (p 32)
  15. GEO Group’s Florida Immigration Detention Center “Horrifying” (p 34)
  16. Rhode Island Prison Guards Collect Double-Time-and-a-Half during States of Emergency (p 35)
  17. CDCR Employees Investigated, Lose Jobs for Cell Phone Smuggling (p 36)
  18. Kosher Meals Lawsuit Against Nevada DOC Dismissed (p 36)
  19. Illinois Prisoner Receives $12 Million Jury Award in Medical Neglect Suit (p 38)
  20. Oregon Probation Extended for Inability to Pay Financial Obligations (p 39)
  21. Former Michigan Supreme Court Justice Freed from Prison (p 40)
  22. Former Virginia Executioner Now an Anti-Death Penalty Activist (p 40)
  23. Sovereign Immunity Doesn’t Bar Attorney Fee Award Against Georgia DOC (p 42)
  24. Disciplinary Self-Help Litigation Manual, 2d Ed., by Dan Manville (p 42)
  25. Kentucky Death Row Prisoners Win Appeal on Religious Accommodations (p 44)
  26. Claim Alleging Guard Slammed Prisoner’s Head into Wall Defeats Summary Judgment (p 44)
  27. California: Authorized Possession of Legal Materials Cannot Serve as Basis for Gang Validation (p 45)
  28. Ninth Circuit: No Summary Judgment on Male Guard Supervision of Female Prisoners Ban (p 46)
  29. PLN Partly Prevails in Censorship Suit against Georgia Jail; $10,000 in Damages (p 46)
  30. Ninth Circuit: 27-Month Segregation Implicates Due Process Liberty Interest (p 48)
  31. Cell phones are “Dangerous Contraband” for New York Felony Contraband Possession (p 50)
  32. Exonerated Texas Prisoner’s Ex-Wife Not Entitled to Compensation (p 52)
  33. $1.3 Million Settlement in Prisoner’s Death at Michigan Jail; Claims Against Other Defendants Dismissed (p 52)
  34. Summary Judgment Denied in California Jail Excessive Force Death; $8.3 Million Settlement Plus Injunctive Relief (p 54)
  35. Texas Court Reexamines Test for Misconduct by Forensic Scientist (p 56)
  36. $66,000 Jury Award in New Mexico CCA Sexual Abuse, Retaliation Case (p 56)
  37. Eighth Circuit Reverses Denial of Qualified Immunity; Prisoner Proved Neglect, Not Deliberate Indifference (p 58)
  38. Deaths at South Carolina Jail Under Investigation; Multiple Lawsuits Filed (p 58)
  39. Pennsylvania: Wexford Settles Case Involving Death of Prisoner’s Baby (p 60)
  40. Third Circuit Denies Intervention in CRIPA Class-Action Suit (p 62)
  41. News in Brief (p 63)

Screening Out Family Time: The For-Profit Video Visitation Industry in Prisons and Jails

Screening Out Family Time: The For-Profit Video Visitation Industry in Prisons and Jails

by Bernadette Rabuy and Peter Wagner

Every Thursday, Lisa* logs on to her computer and spends $10 to chat for half an hour via video with her sister who is incarcerated in another state. Before the Federal Communications Commission (FCC) capped the cost of interstate calls from prisons, these video chats were even cheaper than the telephone. Lisa’s experience is representative of the promise of video visitation.

Meanwhile, Mary* flies across the country to visit her brother who is being held in a Texas jail. She drives her rental car to the jail but rather than visit her brother in-person or through-the-glass, she is only allowed to speak with him for 20 minutes through a computer screen.

How do video visits work? While video visitation systems vary, a visitor typically makes an appointment and pays any visit charges in advance. The person who is incarcerated is told to be at a certain video terminal at a certain time. The visitor then either drives to the facility to sit at a terminal or uses their personal computer to access the video visitation system over the Internet. Once both ...

Private Prison Information Act Reintroduced in Congress with PLN’s Help

Private Prison Information Act Reintroduced in Congress with PLN’s Help

On December 10, 2014, U.S. Representative Sheila Jackson Lee (D-TX) reintroduced the Private Prison Information Act (PPIA) in Congress. The bill, HR 5838, requires non-federal correctional and detention facilities that house federal prisoners to comply with the Freedom of Information Act (FOIA), by making certain records available to the public.

Currently, private prison companies such as Corrections Corporation of America (CCA) and GEO Group are not required to comply with FOIA requests even when they operate facilities that hold federal prisoners through contracts with federal agencies, and are paid with public funds. This includes privately-operated immigration detention centers.

PLN managing editor Alex Friedmann and Christopher Petrella, a doctoral student at UC Berkeley, have worked closely with Rep. Jackson Lee’s staff over the past two years to reintroduce the PPIA, and helped draft the legislation. [See: PLN, Feb. 2013, p.14].

Various versions of the PPIA have been introduced since 2005; however, private prison firms and their supporters have lobbied against the bills. For example, CCA’s federal lobbying disclosure statements have specifically referenced lobbying related to the PPIA.

Friedmann and Petrella argue that because private prison companies rely almost entirely ...

From the Editor

From the Editor

by Paul Wright

This month’s cover story reports on the relatively recent phenomenon of video visitation. While video visits are technologically new, the underlying principle upon which they are being implemented is not.

PLN has reported extensively on the prison telephone industry and its ruthless gouging of prisoners and their families along with their prison and jail allies, which monetize human contact and literally hold love hostage as a money-making scheme. As the Federal Communications Commission (FCC) appears poised to limit the price gouging of people who accept calls from detention facilities, the industry appears to be trying to make up for that soon-to-be-lost revenue by intensifying the pace and scope of video visitation. Given a choice, it seems most people do not like video visits. Thus, facilities often eliminate in-person visits when video visitation is implemented – which removes any choice. Following community protests, jails in Dallas, Texas and Portland, Oregon have rescinded plans to eliminate in-person visits and replace them with monetized video visitation, but those are exceptions.

PLN’s parent organization, the Human Rights Defense Center, will soon be urging the FCC to regulate and limit the costs of video visitation as it has done ...

Michigan Governor Lacks Authority to Revoke Commutations

Michigan Governor Lacks Authority to Revoke Commutations

by David Reutter

The Michigan Supreme Court held on June 3, 2014 that the governor does not have the power to revoke a completed commutation of sentence. It further held that where it is the governor’s clear intent to commute a sentence and the last act required for commutation has been finalized, the sentence has been commuted once the state seal is affixed upon the commutation certificate by the Secretary of State.

Matthew Makowski, 47, was sentenced to life without parole for the 1988 first-degree felony murder and armed robbery of a co-worker. When he filed an application for commutation of sentence in 2010, he was a model prisoner who had received only “two minor misconduct tickets while in prison.” The parole board recommended that the case proceed to a public hearing, which occurred on October 21, 2010. Neither the prosecutor nor victims’ family appeared at the hearing.

The parole board then sent the commutation application to Governor Jennifer Granholm, who signed it on December 22, 2010, making Makowski eligible for parole. The paperwork was forwarded to the Secretary of State, who affixed the state seal and the Secretary’s signature.

Granholm’s legal ...

Murders in Maryland Prisons Continue Despite Reforms

Murders in Maryland Prisons Continue Despite Reforms

Reforms instituted by Maryland officials in an effort to curb violence in the state’s prison system have done little to stem the number of prisoner homicides, according to statistics released by the Maryland Department of Public Safety and Correctional Services.

Prison officials reported that while the number of serious assaults on prisoners dropped 47% from 2006 through 2012, and serious assaults on prison staff fell 65% during the same time period, the number of homicides in 2012 jumped to six – a three-year high – and additional murders occurred in 2013 and 2014.

Several of the killings occurred at Maryland’s highest-security prison, the North Branch Correctional Institution (NBCI) in Cumberland, including three murders within five months.

At approximately 5 a.m. on September 27, 2012, a prisoner once considered to be one of the most dangerous criminals in Howard County, surrounding Baltimore, was found dead in his cell at NBCI. Charles David Richardson IV, 28, was serving two life sentences without the possibility of parole for killing a female convenience store clerk and shooting a 19-year-old acquaintance to death inside his apartment.

Guards reported that they found Richardson’s cellmate outside the cell “in ...

Texas Sex Offender Oversight Agency Faces Investigations, Calls for Reform

Texas Sex Offender Oversight Agency Faces Investigations, Calls for Reform

by Matt Clarke

An increasing number of attorneys, legislators and prisoner advocacy groups are calling for reforms to Texas laws governing the civil commitment of sex offenders, with many warning that the state’s civil commitment program may be unconstitutional due to the way it’s managed. As proof, they point to the fact that not one sex offender who has been civilly committed since 1999 has completed the program and been discharged.

At the same time, the newly-appointed director of the little-known Texas state agency charged with overseeing civilly committed sex offenders is struggling to overcome controversy in the wake of the former director’s resignation amid investigations into contract irregularities and dozens of legal challenges.

Marsha McLane, a program specialist with the Texas Board of Pardons and Paroles who boasts 30 years of criminal justice experience, was unanimously approved on May 3, 2014 to head the Texas Office of Violent Sex Offender Management (OVSOM) by the agency’s board.

The board also voted to accept the resignation of former director Allison Taylor, who quit after being embroiled in controversy surrounding attempts to quietly house civilly committed sex offenders in residential neighborhoods in ...

Arizona DOC Director Blames Job Stress for Hundreds of Employee Arrests

Arizona DOC Director Blames Job Stress for Hundreds of Employee Arrests

One Phoenix TV station learned first-hand the consequences of letting the target of a news story find out too much about it in advance.

Arizona Department of Corrections (ADC) Director Charles L. Ryan – tipped off that a local TV station planned to air a report on the arrests of hundreds of ADC employees – preempted the story by issuing a public statement citing the number of arrests and blaming the “unique pressures” of prison work for staff misconduct.

On his “Director’s Desk” blog site, Ryan also condemned the crimes committed by ADC workers and offered a free employee assistance program.

“This concerns me greatly,” Ryan wrote on his blog, which is designed to communicate with ADC’s 9,278 staff members but tends to read more like a public relations platform. ADC employees, Ryan added, “should be keenly aware of the need to conduct both our personal and professional lives in a manner that is above reproach.”

Ryan’s blog post came as CBS affiliate TV station KPHO prepared to air a story revealing that 640 ADC employees had been arrested since fiscal year 2009, at the average ...

The United States and Torture

The United States and Torture

by William Blum

Two of the things that governments tend to cover-up or lie about the most are assassinations and torture, both of which are widely looked upon as exceedingly immoral and unlawful, even uncivilized. Since the end of the Second World War the United States has attempted to assassinate more than 50 foreign leaders and has led the world in torture; not only the torture performed directly by Americans upon foreigners, but providing torture equipment, torture manuals, lists of people to be tortured, and in-person guidance and encouragement by American instructors, particularly in Latin America.

Thus it is somewhat to the credit of President Obama that at an August 1, 2014 press conference he declared, “We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values.”

And he actually used the word “torture” at that moment, not “enhanced interrogation,” which has been the euphemism of preference the past decade, although two minutes later the president used “extraordinary interrogation techniques.” And “tortured some folks” makes me wince. The man is clearly uncomfortable with the subject.

But all this ...

Ninth Circuit Reverses Dismissal of California ADA Suit Against Parole Officers

Ninth Circuit Reverses Dismissal of California ADA Suit Against Parole Officers

by Derek Gilna

In a decision that displayed its displeasure with California parole officers’ disregard for both the spirit and statutory requirements of the Americans with Disabilities Act (ADA), the Ninth Circuit reversed the dismissal of an ADA Title II lawsuit filed by parolee Dennis Sharkey. While Sharkey had failed to file suit within the two-year statute of limitations for personal injury actions in California, the Court of Appeals adopted a three-year limitations period for ADA Title II cases.

Sharkey, 55, had serious disabilities that required him to live in residences with handicap-accessible features. He used a wheelchair and canes, and previously resided in a handicap-accessible apartment in Oakland, California. In December 2006, he was advised by state parole officers that due to new housing restrictions required by the California Sexual Predator and Control Act, his apartment was no longer an acceptable place of residence. Sharkey was forced to move the same day he was notified, within one hour, and given only 25 minutes to pack his belongings. He was injured in the hurried move and had to seek emergency and long-term medical treatment for his injuries.

Sharkey was ...

Federal Court Caseloads Threaten Constitutional Protections

Federal Court Caseloads Threaten Constitutional Protections

by Matt Clarke

Civil and criminal case filings in federal courts have grown dramatically over the past two decades, but at the same time the number of judges available to hear them has barely increased according to a report by researchers at Syracuse University. As a result, the study concluded, if Congress fails to act to solve the problem, large caseloads threaten to jeopardize Constitutional protections of equal justice under the law and the right to a speedy trial.

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University released a report on October 23, 2014 which found that over the past 20 years, from 1993 to 2013, the growth in the number of federal court filings has slowed the judicial process to a point where it now takes nearly two-thirds longer for civil cases to go to trial.

“For civil matters, the substantially higher workloads and increased processing times have major economic and social consequences,” the study noted. “This is because the federal courts frequently serve as the essential referee in resolving a large number of important economic and social conflicts.”

According to TRAC, “The legal struggles here involve a wide range ...

Lawsuits Over Riot at CCA Prison in Colorado Settle for $600,000

Lawsuits Over Riot at CCA Prison in Colorado Settle for $600,000

by Derek Gilna

Corrections Corporation of America (CCA), confronted with the prospect of a jury trial scheduled to last 25 weeks on the claims of almost 200 current and former prisoners who suffered injuries during a 2004 riot ...

Third Circuit Affirms Nominal Damages, Reverses PLRA Fee Cap Order

Third Circuit Affirms Nominal Damages, Reverses PLRA Fee Cap Order

by Mark Wilson

On March 28, 2014, a New Jersey federal district court refused to reduce a prisoner’s attorney fee award to $1.50 (i.e., 150% of his $1.00 nominal damages award) pursuant to the Prison Litigation Reform ...

“Damning” Audit Sharply Criticizes Corizon in Allegheny County, Pennsylvania

“Damning” Audit Sharply Criticizes Corizon in Allegheny County, Pennsylvania

by Gregory Dober

In December 2014, Allegheny County, Pennsylvania Controller Chelsa Wagner released an audit report on Corizon Health’s compliance with its contract to provide medical care at the county jail in Pittsburgh.

The audit cited 14 areas in which the company allegedly failed to perform contractually-required services, ranging from failure to maintain emergency equipment to long delays in providing prisoners with physical exams and medication. According to Marion Damick, a representative of the Pennsylvania Prison Society and past director of the Pittsburgh chapter of the ACLU, “None of the 14 allegations were a surprise to anyone who has been around the Allegheny County Jail this past year. The problem is how to correct the situation considering the contract.”

The jail holds approximately 2,700 prisoners on any given day. Allegheny Correctional Health Services (ACHS), a nonprofit organization affiliated with the county’s health department, previously provided medical services to prisoners before the county contracted with Corizon in September 2013. Like other jurisdictions that contract with private companies, Allegheny County was trying to find a better solution to manage and reduce costs at the jail.

Corizon’s contract with the county, for ...

Georgia Deputies Liable for Detaining and Stripping Man in Debt Judgment Execution

Georgia Deputies Liable for Detaining and Stripping Man in Debt Judgment Execution

by David Reutter

The Georgia Court of Appeals held in March 2014 that Fulton County sheriff’s deputies who detained a man to execute a debt judgment can be held liable for violating his rights.

Brooke Payne, the former manager of R&B group En Vogue, was in a dressing room with the group while they waited to perform at a concert in Atlanta in 2009 when there was a knock on the door. A group of deputies had arrived to execute a writ of fieri facias (fi. fa.) on Payne to satisfy a prior $300,000 judgment.

Deputies took Payne to another room and showed him the fi. fa., which he signed. They then inquired about his personal property. He produced a backpack and the deputies seized a camcorder, computer, clothing and a necklace.

“That was in the bounds of the law. They have the right to execute the fi. fa., but the limit is they can seize what is in his presence,” said Payne’s attorney, Herald Alexander. “But they go beyond that, they demand he tell them where he’s staying.”

Over Payne’s “vehement protests,” the ...

GEO Group’s Florida Immigration Detention Center “Horrifying”

GEO Group’s Florida Immigration Detention Center “Horrifying”

by David M. Reutter

Hundreds of undocumented immigrants are housed at the GEO Group-operated Broward Transitional Center (BTC) in Pompano Beach, Florida, and many are victims of mistreatment and policy violations according to a report issued by an immigrants’ rights group.

The 71-page report, released on April 29, 2013 by Americans for Immigrant Justice (AIJ), included stories told by detainees to AIJ attorneys over the previous two years.

The report described incidents of alleged substandard or callous medical care, such as the case of one woman who was taken for ovarian surgery and returned to BTC the same day; she was still bleeding when placed back in her cell. Then there was a male detainee who had been passing blood for days without seeing a doctor. The report also included examples of food poisoning, sexual assaults, refusal of access to legal resources and substandard pay for detainee labor.

“There are a lot of different problems there,” said AIJ policy director Susanna Barciela. “There are Dreamers who were detained there,” she stated, referring to the DREAM Act, which would provide conditional permanent residency to immigrants who meet certain requirements.

“There have been ...

Rhode Island Prison Guards Collect Double-Time-and-a-Half during States of Emergency

Rhode Island Prison Guards Collect Double-Time-and-a-Half during States of Emergency

When he declared a state of emergency – as he did multiple times after being elected in 2010 – former Rhode Island Governor Lincoln D. Chafee had more on his mind than just public safety. The governor acknowledged that he was “really aware of the financial ramifications” arising from a 2006 arbitration ruling which requires that, as soon as the emergency is declared, guards who remain working at the state prison be paid at two-and-a-half times their usual wage rate.

So concerned was the governor about the financial implications of declaring a state of emergency that he admitted he usually lagged behind neighboring states when it came to issuing emergency declarations. “Those around the table ... know very well my reticence of declaring a state of emergency because of the financial ramifications,” Chafee said, adding, “We’re working so hard at keeping every department on budget, and to have double-time-and-a-half is a big factor.”

In 2013, the Chafee administration attempted to negotiate a new contract with the Rhode Island Brotherhood of Correctional Officers (RIBCO), the union that represents state prison guards. The governor had hoped to get rid of the ...

CDCR Employees Investigated, Lose Jobs for Cell Phone Smuggling

CDCR Employees Investigated, Lose Jobs for Cell Phone Smuggling

Some did it for money. Others for love, or something like it. Whatever their motives, at least 21 California Department of Corrections and Rehabilitation (CDCR) employees faced internal investigations in the first six months of 2014 for allegedly smuggling cell phones to prisoners, according to a recent report. Eleven were fired and most of the others referred for criminal prosecutions.

CDCR’s Office of the Inspector General (OIG) reported in October 2014 that among 348 cases of serious policy violations closed between January 1 and June 30, 2014, 21 state prison employees – some guards, some administrative or medical staff – were accused of smuggling contraband cell phones. The other cases involved use of force, sexual misconduct, abuse of position or authority and other violations.

Before October 2011, cell phone smuggling was a firing offense but not illegal. That changed when Governor Jerry Brown signed into law SB 26, a bill supported by CDCR administrators – who argued that prisoners run gangs, intimidate witnesses and order hits using cell phones – which makes smuggling or possession of a cell phone in a state prison a misdemeanor punishable by up to six months ...

Kosher Meals Lawsuit Against Nevada DOC Dismissed

Kosher Meals Lawsuit Against Nevada DOC Dismissed

by Matt Clarke

On August 12, 2012, a Nevada federal district court approved a notice of proposed settlement in a class-action civil rights suit brought by a Jewish prisoner over the announced intent of the Nevada Department of Corrections (DOC) to stop providing kosher meals. However, 45 of the 300 Nevada prisoners who were already receiving kosher meals objected to the proposed settlement, the class was later decertified and the case, which was dismissed in August 2014, is now on appeal to the Ninth Circuit.

As a result of a settlement in prior federal litigation, Jewish prisoners held in DOC facilities were provided kosher meals at an annual cost of about $1.5 million. The meals came from an outside catering service and were individually wrapped in disposable trays. In 2011, the DOC announced its intention to cease providing kosher meals and require Jewish prisoners to eat a non-kosher “common fare” diet.

Howard Ackerman, 52, an Orthodox Jew incarcerated at the Lovelock Correctional Center, filed a federal class-action suit pursuant to 42 U.S.C. § 1983, alleging that the change in the DOC’s kosher diet policy violated his First Amendment rights and ...

Illinois Prisoner Receives $12 Million Jury Award in Medical Neglect Suit

Illinois Prisoner Receives $12 Million Jury Award in Medical Neglect Suit

by Matt Clarke

n January 18, 2013, an Illinois federal jury awarded a state prisoner $12 million against an Illinois Department of Corrections (DOC) certified medical technician (CMT) who failed to provide anti-seizure medication, which caused the prisoner to ...

Oregon Probation Extended for Inability to Pay Financial Obligations

Oregon Probation Extended for Inability to Pay Financial Obligations

by Mark Wilson

In a July 9, 2014 ruling, the Oregon Court of Appeals upheld a trial court’s extension of probation for failure to pay financial obligations due to poverty. The Court of Appeals concluded that Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064 (1983) did not control because the failure to pay did not result in the probationer’s incarceration.

Joseph David Bell was convicted of several offenses in Oregon and sentenced to probation; one of his probation conditions was to pay restitution, fines and assessments.

When Bell did not pay his financial obligations, the court extended his probation for 12 months, ordered him to perform 32 hours of community service and assessed a $25 probation violation fee.

Bell appealed, relying exclusively on Bearden to support his argument that the extension of his probation violated the Fourteenth Amendment, because the state failed to “prove that he could have made payments but did not and ... at the least, the court had the obligation independently to ask him if his failure resulted from inability to pay.” Bell did not dispute that he failed to pay, but claimed that he ...

Former Michigan Supreme Court Justice Freed from Prison

Former Michigan Supreme Court Justice Freed from Prison

A former Michigan State Supreme Court Justice is once again a free woman following her release from federal prison after serving time for bank fraud.

Diane Hathaway, 60, was released from a minimum-security women’s prison in Alderson, West Virginia in May 2014 after serving slightly more than 40 weeks of her sentence. The facility, often referred to as “Camp Cupcake,” has been compared to college campuses.

Hathaway was sentenced to one year and one day in prison after pleading guilty to a felony charge of bank fraud, which stemmed from the short sale of a luxurious home owned by Hathaway and her husband, attorney Michael Kingsley, who was not charged in the scheme.

The U.S. Department of Justice accused the couple in a November 2012 civil filing with fraudulently concealing more than $1 million of their net worth to qualify for the short sale. In short sales, banks allow financially distressed owners to sell properties for less than the amount they still owe, which provides a significant benefit to borrowers who seek to avoid foreclosure but can’t afford to keep making mortgage payments.

Federal authorities charged Hathaway with bank fraud ...

Former Virginia Executioner Now an Anti-Death Penalty Activist

Former Virginia Executioner Now an Anti-Death Penalty Activist

Once Virginia’s chief executioner, Jerry Givens put 62 people to death over a 17-year period from 1982 to 1999. Then he had an epiphany that pushed him to use his experience to advocate against the death penalty.

Givens, 60, became a supporter of capital punishment at an early age. While attending a house party when he was 14, he was building up his courage to ask a girl to dance with him. A gunman looking for someone else at the party suddenly ran up the stairs, firing randomly and killing the girl. That incident infuriated Givens and solidified his belief that murderers deserve to die.

By 1974, Givens was working at a Philip Morris plant, but he lost his job after fighting with a co-worker. He applied for a position at the state penitentiary, and after two years as a guard a supervisor approached him about working on death row. He accepted.

His first execution occurred in 1984, and he felt those he put to death had asked for it. “If you knew going out there that raping and killing someone had the consequence of the death penalty, then why are you ...

Sovereign Immunity Doesn’t Bar Attorney Fee Award Against Georgia DOC

Sovereign Immunity Doesn’t Bar Attorney Fee Award Against Georgia DOC

by David Reutter

The Georgia Supreme Court held on June 16, 2014 that sovereign immunity does not bar an award of attorney fees and litigation costs against the Georgia Department of Corrections (GDOC).

The ruling resulted from certiorari review of ...

Disciplinary Self-Help Litigation Manual, 2d Ed., by Dan Manville

Disciplinary Self-Help Litigation Manual, 2d Ed., by Dan Manville

(PLN Publishing, Dec. 2014). 368 pages, $49.95 paperback

Book review by John E. Dannenberg

Renowned attorney Dan Manville, co-author of the Prisoners’ Self-Help Litigation Manual, has produced another must-have book for everyone who’s incarcerated.

Doing time necessarily involves fighting the prison disciplinary system, and because disciplinary charges can extend your time in custody, successfully appealing wrongful write-ups has a direct impact on your eventual freedom. If unsuccessful in appealing a disciplinary conviction, you’ll want to challenge it in court. But obtaining justice in the courts requires extremely careful use of the administrative appeals process. As Manville thoughtfully writes, his latest book, the Disciplinary Self-Help Litigation Manual,“is best used to keep inmates out of court by winning either at the misconduct hearing or during the prison appeal process.”

With around 2.2 million prisoners in the United States, disciplinary convictions result in an enormous number of appeals and court challenges. The truth is that most prisoners fail to win because they fail to follow strict procedural rules designed to catch the unwary. To make matters worse, the process for pursuing administrative appeals, and later court challenges, varies from state ...

Kentucky Death Row Prisoners Win Appeal on Religious Accommodations

Kentucky Death Row Prisoners Win Appeal on Religious Accommodations

by Derek Gilna

On August 15, 2014, the Sixth Circuit Court of Appeals ruled in favor of five death row prisoners in Kentucky who sued the director of the Department of Corrections (DOC) under the Religious Land Use and Institutionalized Persons Act (RLUIPA) for his denial of their Native American religious beliefs. The DOC had denied clergy visits, access to a sweat lodge and food deemed necessary for the prisoners’ annual faith-based powwow.

According to the appellate court, RLUIPA “prohibits state and local governments from placing ‘a substantial burden’ on the ‘religious exercise’ of any inmate unless they establish that the burden furthers a ‘compelling governmental interest’ and does so in the ‘least restrictive’ way. 42 U.S.C. Section 2000cc-1(a).”

The prisoners had initially filed administrative grievances that were denied, and prison officials won summary judgment at the district court level. The Sixth Circuit, acknowledging that “no one debates the sincerity of the inmates’ religious beliefs,” reversed and remanded on two issues and denied relief on the third, which sought monetary damages for RLUIPA violations. The Court of Appeals said the reasons cited by the DOC for ...

Claim Alleging Guard Slammed Prisoner’s Head into Wall Defeats Summary Judgment

Claim Alleging Guard Slammed Prisoner’s Head into Wall Defeats Summary Judgment

by David Reutter

The Sixth Circuit Court of Appeals reversed a grant of summary judgment in a prisoner’s civil rights action, holding that a reasonable jury could conclude a guard had “inflicted serious pain” on the prisoner “with malicious and sadistic intent.” The Court further held a reasonable official would have known his conduct was unconstitutional under the particular factual circumstances alleged in the case.

Phillip Cordell was housed at the Greene County Jail in Xenia, Ohio awaiting transfer to prison after pleading guilty to involuntary manslaughter. In the late afternoon of July 20, 2009, Cordell and other prisoners requested haircuts from guard Glen McKinney as he was making his rounds on the second floor.

McKinney reportedly replied with a vulgarity, which he disputed, but it was undisputed that Cordell responded with his own vulgar, derogatory statement. “This outburst did not sit well with [McKinney],” the Sixth Circuit wrote.

McKinney ordered Cordell into the vestibule area to place him in handcuffs for escort to a holding cell on the third floor. Cordell claimed he was compliant; McKinney contended he was aggressive and resistant, forcing him to display ...

California: Authorized Possession of Legal Materials Cannot Serve as Basis for Gang Validation

California: Authorized Possession of Legal Materials Cannot Serve as Basis for Gang Validation

The California Court of Appeal has held that documents in the possession of a prisoner who is providing legal assistance to another prisoner cannot be used to validate the first prisoner as an associate of a prison gang.

In February 2009, California prisoner Robert Villa was placed in administrative segregation (ad seg) pending an investigation into his involvement with the Mexican Mafia prison gang. A year later the investigation concluded and, based on four “source items,” Villa was validated as a gang “associate.”

Villa filed a petition for writ of habeas corpus challenging his validation as well as his placement in ad seg. Specifically, he argued that 1) his possession of legal documents belonging to a validated Mexican Mafia associate to whom he was providing legal assistance was authorized by regulation and thus could not serve as a basis for his own validation, and 2) a confidential memorandum linking him to the gang in general was insufficient to establish the requisite “direct line” to a current or former validated gang member or associate.

The Court of Appeal agreed and ordered prison officials to expunge all ...

Ninth Circuit: No Summary Judgment on Male Guard Supervision of Female Prisoners Ban

Ninth Circuit: No Summary Judgment on Male Guard Supervision of Female Prisoners Ban

by Mark Wilson

The Ninth Circuit Court of Appeals held on July 2, 2014 that a claim that a jail policy banning male guards from supervising female prisoners violates Title VII’s prohibition against sex discrimination could not ...

PLN Partly Prevails in Censorship Suit against Georgia Jail; $10,000 in Damages

PLN Partly Prevails in Censorship Suit against Georgia Jail; $10,000 in Damages

In March 2013, a federal district court granted a preliminary injunction to Prison Legal News that prohibited jail officials in Walton County, Georgia from refusing to deliver PLN’s publications to prisoners. The court declined to grant an ...

Ninth Circuit: 27-Month Segregation Implicates Due Process Liberty Interest

Ninth Circuit: 27-Month Segregation Implicates Due Process Liberty Interest

by Mark Wilson

On May 4, 2014, in a corrected decision, the Ninth Circuit Court of Appeals held that lengthy segregation without periodic, meaningful reviews may give rise to a protected liberty interest.

In addition to general population housing, the Oregon Department of Corrections (ODOC) confines prisoners in an Administrative Segregation Unit (ASU), Disciplinary Segregation Unit (DSU) and Intensive Management Unit (IMU).

ASU confinement may result from a prisoner’s “notoriety, actions, or threats.” Such confinement may not exceed 30 days “without a hearing and status review,” and may not exceed 180 days “without ‘due process.’” ASU conditions are less restrictive than IMU, in that prisoners are “afforded access to telephones, televisions, computers, and personal shoes and other property.” They are also “permitted seven hours of recreation per week and are not required to participate in behavior-modification programs.”

Prisoners are placed in DSU for violating prison rules; DSU confinement may not exceed 180 days, and prisoners “are entitled to thirty-day ‘assessment’ reviews” to evaluate “whether to recommend their early release from segregation.” While DSU and IMU conditions are similar, DSU prisoners “are not required to participate ...

Cell phones are “Dangerous Contraband” for New York Felony Contraband Possession

Cell phones are “Dangerous Contraband” for New York Felony Contraband Possession

by Mark Wilson

On May 8, 2014, a New York Supreme Court Appellate Division held that cell phones constitute “dangerous contraband” under the state’s felony contraband possession statute.

Pursuant to New York law, a prisoner’s possession of non-dangerous contraband may result in a misdemeanor criminal conviction, punishable by up to a year in jail. “Dangerous contraband” possession, however, can result in a felony conviction for first-degree promoting prison contraband.

Dangerous contraband is defined as “contraband which is capable of such uses as may endanger the safety and security of a detention facility or any person therein.” In People v. Finley, 10 N.Y.3d 647 (N.Y. 2008) [PLN, Oct. 2009, p.34], the New York Court of Appeals held that “the test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security.”

Finley held that “the distinction ...

Exonerated Texas Prisoner’s Ex-Wife Not Entitled to Compensation

Exonerated Texas Prisoner’s Ex-Wife Not Entitled to Compensation

by Matt Clarke

In a May 12, 2014 opinion, a Texas Court of Appeals held that the former wife of a prisoner who spent over 24 years in prison was not entitled to a portion of the $2 million he received in compensation.

“Steven Phillips and Traci Tucker were married in 1980. Two years later, Phillips was arrested, convicted and ultimately incarcerated” on a rape charge. They divorced in 1992.

Phillips was released on parole in 2007. The next year, DNA testing proved he had not committed the rape, which made him eligible for $80,000 per year of wrongful confinement under the Tim Cole Act, § 103.052(a) of the Texas Civil Practice and Remedies Code. [See: PLN, Aug. 2010, p.12].

Tucker then filed suit against Phillips, seeking a portion of the compensation under the theory that some of the money was for lost wages while the couple was still married. The state trial court agreed, awarding Tucker $114,459.50 of the compensation funds plus attorney fees and costs.

The Court of Appeals held that “(1) no portion of the amount [Phillips] was awarded under the Act ...

$1.3 Million Settlement in Prisoner’s Death at Michigan Jail; Claims Against Other Defendants Dismissed

$1.3 Million Settlement in Prisoner’s Death at Michigan Jail; Claims Against Other Defendants Dismissed

When Michigan’s Saginaw County agreed to pay $1.3 million to settle a civil rights lawsuit stemming from a prisoner’s medical-related death, it may have been left with a case of buyer’s remorse. Following the ...

Summary Judgment Denied in California Jail Excessive Force Death; $8.3 Million Settlement Plus Injunctive Relief

Summary Judgment Denied in California Jail Excessive Force Death; $8.3 Million Settlement Plus Injunctive Relief

by Mark Wilson

In April 2014, a California federal district court denied summary judgment to jail guards and medical staff in a case involving the death of a detainee caused by Tasing and severe ...

Texas Court Reexamines Test for Misconduct by Forensic Scientist

Texas Court Reexamines Test for Misconduct by Forensic Scientist

by Mark Wilson

On January 15, 2014, the Texas Court of Criminal Appeals modified its earlier decisions in which it had presumed that evidence handled by a forensic scientist who engaged in misconduct was false and material.

Jonathan Salvador was a laboratory technician at the Houston Police Department’s Crime Lab. During his six-year tenure, he committed professional misconduct by engaging in “dry labbing,” in which “results are actually arrived at by guesswork or using evidence or results from another analysis.”

Problems were found throughout Salvador’s employment; more than one in three of his cases were returned for corrections. He was suspended for eleven days, and later resigned. The Texas Department of Public Safety identified 4,944 cases in which he had been involved.

The courts were flooded with habeas petitions based on Salvador’s misconduct. In a series of published and unpublished opinions, the Court of Criminal Appeals granted relief, presuming that the evidence was false and material in any case involving Salvador. See: Ex parte Turner, 394 S.W.3d 513 (Tex. Crim. App. 2013); Ex parte Smith, 2013 WL 831359 (Tex. Crim. App. Mar. 6, 2013); Ex parte ...

$66,000 Jury Award in New Mexico CCA Sexual Abuse, Retaliation Case

$66,000 Jury Award in New Mexico CCA Sexual Abuse, Retaliation Case

by Matt Clarke

On November 15, 2012, a New Mexico federal jury awarded $66,000 to a woman formerly incarcerated at a prison operated by Corrections Corporation of America (CCA) who alleged she had been sexually assaulted by ...

Eighth Circuit Reverses Denial of Qualified Immunity; Prisoner Proved Neglect, Not Deliberate Indifference

Eighth Circuit Reverses Denial of Qualified Immunity; Prisoner Proved Neglect, Not Deliberate Indifference

by Mark Wilson

On March 25, 2014, the Eighth Circuit Court of Appeals reversed a district court’s denial of qualified immunity on a prisoner’s claims that a delay in providing blood pressure medication caused him to go blind.

Broderick L. Fourte did not receive a medical screening when he was booked into the jail in Faulkner County, Arkansas on September 25, 2009.

On October 3, he asked jail staff to contact his family for his high blood pressure medication. They failed to do so.

Two days later, guards began a daily log of Fourte’s blood pressure. Nurse Tamara R. Lumpkin’s name appeared on the log, which was reviewed weekly by jail physician Garry Stewart.

It was Dr. Stewart’s practice to monitor blood pressure for at least 30 days before prescribing medication, unless an emergency level of 180/120 was reached. Throughout October, “Fourte’s median blood pressure was 150/104, with most readings between 140/95 and 160/110.”

Fourte complained of vision loss and repeatedly requested blood pressure medication. His blood pressure hit 180/121 on October 30, 2009, and Lumpkin gave him a pill. The ...

Deaths at South Carolina Jail Under Investigation; Multiple Lawsuits Filed

Deaths at South Carolina Jail Under Investigation; Multiple Lawsuits Filed

The widow of a mentally ill man who hanged himself less than an hour after being booked into jail in Orangeburg County, South Carolina is suing the county and other defendants, alleging her husband’s death could have been prevented.

The lawsuit filed by Jenny Hearn is the “first of other cases ... against the Orangeburg County Detention Center concerning wrongful deaths of detainees,” said one of her attorneys, Carter Elliott, Jr.

At least seven prisoners died at the Orangeburg County lock-up in 2012 and 2013, including three who committed suicide.

Nathaniel Paul Hearn, 37, was arrested on November 23, 2012 and jailed after law enforcement authorities investigating a domestic violence complaint discovered bomb-making materials. The suit filed by Jenny Hearn in January 2014 claims that jail officials knew her husband had a history of mental illness but did nothing to monitor him.

The lawsuit alleges that “negligent and grossly negligent acts” by the county, jail staff and the local hospital and doctors were responsible for Hearn’s death because he was “improperly classified and sent to an unsupervised cell by himself, not on suicide watch.”

According to the complaint, video ...

Pennsylvania: Wexford Settles Case Involving Death of Prisoner’s Baby

Pennsylvania: Wexford Settles Case Involving Death of Prisoner’s Baby

A federal civil rights complaint filed in March 2013 accused employees of Wexford Health Sources of failing to provide appropriate medical care to a pregnant prisoner at Pennsylvania’s Westmoreland County Prison (WCP), resulting in the death of her nearly 8-month-old unborn son.

The suit was filed by Tiffany Pollitt and her husband, Brian C. Camp, Sr. Pollitt learned she was pregnant in January 2012, and an ultrasound five months later showed a healthy baby with no abnormalities. Pollitt was in the custody of WCP on July 28, 2012 when she was exercising with a volleyball in an outdoor gym.

She was accosted by two other prisoners, Gabriella Wade and LeAnn Armstrong, who demanded that Pollitt give them the ball. As she argued with Wade, Armstrong tried to take the volleyball and hit Pollitt hard in the abdomen. Pollitt confronted Armstrong about hitting her when she was pregnant. A guard arrived, issued Pollitt a disciplinary report for creating a disturbance and placed her in solitary confinement.

Pollitt awoke the next day with uterine cramping, tightness in her lower back and vaginal spotting. Her requests for a sick call form or to see ...

Third Circuit Denies Intervention in CRIPA Class-Action Suit

Third Circuit Denies Intervention in CRIPA Class-Action Suit

by Mark Wilson

On April 11, 2014, the Third Circuit Court of Appeals rejected a prisoner’s motion to intervene in a 28-year-old class-action case on the eve of settlement.

In 1986, the United States filed suit against the Virgin Islands under the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997. The lawsuit alleged that conditions at the Golden Grove Adult Correctional Facility on St. Croix violated the Eighth Amendment. The parties entered into a consent decree later that year, designed to ensure prisoners were safe from “‘unreasonable fire safety risks to their lives and safety’ and ‘wanton and reckless physical violence by other inmates or staff,’ as well as providing ‘minimally adequate sanitation to protect inmates from unreasonable risks to their physical health’ and ‘minimally adequate medical care for the serious medical needs of inmates.’”

The litigation continued when conditions at the prison did not improve, resulting in several additional court orders, including a 1990 compliance plan, a 2003 stipulated agreement, a 2007 remedial order and additional orders in December 2009, February 2010 and December 2010.

In July 2011, the defendants moved to terminate prospective ...

News in Brief

News in Brief

California: On June 24, 2014, the San Bernardino County Sheriff’s Department identified two prisoners killed in an apparent homicide at U.S. Penitentiary Victorville. Brian Kountz, 24, and Robert Howard Ferguson, 49, were pronounced dead at the prison on June 21, 2014. The FBI is investigating their deaths. At least five prisoners, including Ferguson and Kountz, have died at USP Victorville within a nine-month period.

California: CSP Corcoran prisoner Richard Dupree filed a lawsuit on April 21, 2014 seeking over $2 billion from pop star Rihanna and her former boyfriend Chris Brown, music mogul Jay-Z and his superstar wife Beyonce, and rapper Kanye West for allegedly stealing song lyrics Dupree wrote while incarcerated. He claimed that the celebrities conspired with the CIA, FBI, Homeland Security and other law enforcement agencies to steal the lyrics of 3,000 of his songs – allegedly robbing him of “hundreds of millions, even billions, in the satellite organization.” Magistrate Judge Carolyn K. Delaney dismissed Dupree’s suit, which also demanded his immediate release from prison, in June 2014.

Canada: Three prisoners escaped from the Orsainville Detention Center near Quebec City by helicopter on June 7, 2014, but were captured 15 days ...


 

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