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Prison Legal News: August, 2015

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Volume 26, Number 8

In this issue:

  1. Greenwashing Washington State’s Prison System in a River of Sewage (p 1)
  2. Persistent, Ongoing Environmental Violations at Washington’s Walla Walla Prison (p 12)
  3. From the Editor (p 14)
  4. Inside the Shadowy Business of Prison Phone Calls (p 16)
  5. Michigan: $8 Million Settlement after Prisoner’s Baby Born with Brain Damage (p 21)
  6. Minnesota DOC Sued Over Failure to Provide New Hepatitis C Treatment Protocol (p 22)
  7. UK Prison Cook Awarded $160,000 for Back Injury (p 22)
  8. West Virginia City Settles Suit over Jail Prisoner’s Death for $460,000 (p 24)
  9. $750,000 Settlement in New Mexico “Controlled Seating” Lawsuit (p 24)
  10. Alabama Courts Must Review Substance of Claim Despite Pleading’s Title (p 25)
  11. Second Circuit Unseals Jail Conditions Settlement Compliance Reports; Public Has First Amendment Right of Access (p 26)
  12. $3,000 Jury Award to Arizona Prisoner Denied Prostate Care (p 27)
  13. Nebraska Returns Ex-Offenders to Prison after Sentence Miscalculation Scandal (p 28)
  14. Supreme Court Voids ACCA’s Residual Clause in Landmark Decision (p 30)
  15. San Diego Deputies Faulted for Jail Death (p 30)
  16. Peer-Review Reports Must be Disclosed in Philadelphia Jail Conditions Suit (p 31)
  17. Pell Grants for Prisoners: New Bill Restores Hope of Reinstating College Programs (p 32)
  18. Two Names Added to Monument Memorializing Slain Prosecutors (p 36)
  19. UN Commission Approves Mandela Rules on Treatment of Prisoners (p 38)
  20. North Carolina Prisoner, Victim of Sexual Assault, Awarded One Dollar in Damages (p 38)
  21. Jury Awards $12,000 to Connecticut Prisoner for Unsanitary Mattress (p 39)
  22. Virginia Must Improve Prison Medical Care Under Proposed Class-action Settlement (p 40)
  23. Report Finds Two-Thirds of Private Prison Contracts Include “Lockup Quotas” (p 42)
  24. $1.15 Million for Florida Pretrial Detainee’s Death (p 42)
  25. Supreme Court Rules Qualified Immunity Shields Prison Officials from Suicide Claim (p 44)
  26. Tenth Circuit: Ignoring Prisoner’s Severe Pain Precludes Qualified Immunity (p 44)
  27. Who Owns Private Prison Stock? (p 46)
  28. Controversy Surrounds Shackling of Dying and Comatose Prisoners in UK (p 48)
  29. Alaska High Court Reaffirms Negligence Standard to Protect Prisoners from Harm (p 50)
  30. Supreme Court Strikes Down Ban on Short Beard for Muslim Prisoner (p 50)
  31. Ninth Circuit Finds that ICE Detention After Indictment Counts Against Sentence (p 51)
  32. Vermont: Retaliatory Furlough Denial Reviewable on Rule 75 Motion (p 52)
  33. Failure to State Rationale in Denying Appointment of Counsel was Abuse of Discretion (p 52)
  34. Three Strikes Litigant Required to Show Ongoing “Imminent Danger” to Proceed on Appeal (p 53)
  35. Nebraska Law Unconstitutionally Forfeits Good Time for Refusal to Submit DNA Sample (p 54)
  36. Does Political Spending by Private Prison Firms in Oklahoma Influence Prison Reform? (p 54)
  37. Ninth Circuit Finds Graham v. Florida Retroactive; 254-Year Sentence Unconstitutional (p 56)
  38. Notorious Psych Ward at Miami-Dade Jail Finally Shuttered (p 56)
  39. Kentucky Jail Prisoners Make Mattresses (p 57)
  40. Tennessee Prisoners Suing Private Prisons Not Required to File in Local Venue (p 58)
  41. Investigation Forces Arizona Clemency Board Chairman to Resign (p 58)
  42. Prisoners Released When Jails Can’t Feed Them (p 59)
  43. Final Class-Action Settlement Pending in “Kids for Cash” Scandal (p 60)
  44. CA: Persons on Community Supervision Eligible to Seek Transfer to Another State (p 61)
  45. News in Brief (p 63)

Greenwashing Washington State’s Prison System in a River of Sewage

Greenwashing Washington State’s Prison System in a River of Sewage

by Rick Anderson

Greenwashing: When an agency or company spends more on marketing and public relations to promote the perception they are environmentally conscious than they spend on implementing environmentally conscious practices and policies.

In 2005, embarking on a new-found interest in creating more environmentally friendly prisons, the Washington State Department of Corrections (DOC) built what it claimed was the nation’s first correctional building to achieve a Leadership in Energy and Environmental Design (LEED) Gold rating. There was a lot of back patting and official ring kissing. The 10,000-square-foot Jimmie Evans Training Center at the Monroe Correctional Complex (MCC) north of Seattle includes prisoner classrooms and a computer lab. Built to conserve energy, the training center featured waterless urinals and a rainwater system used to flush low-flow toilets. Almost a century old, the prison was going green and this time it wasn’t from moss.

The Monroe complex, which houses 2,400 male prisoners in separate reformatory, mental health, sex offender and minimum-security units, also got a new LEED-certified maintenance building that year. It was built with recycled construction materials and relied on more natural lighting from ...

Persistent, Ongoing Environmental Violations at Washington’s Walla Walla Prison

Persistent, Ongoing Environmental Violations at Washington’s Walla Walla Prison

by Panagioti Tsolkas

Walla Walla State Penitentiary (WSP) in Washington State has a long history of contaminating the surrounding land, water and neighboring communities. Recent reports obtained this year from a public records request submitted by Prison Legal News to the Department of Ecology (DOE) indicate that WSP’s chronic pollution problems are still ongoing.

PLN has reported on the Washington Department of Corrections (DOC) ignoring air and water pollution violations for more than two decades, starting in August 1990 when the DOE inspected and cited WSP for eight “dangerous waste violations.” [See: PLN, July 2004, p.28]. Examples of other violations since that time include the following:

• In March 1992, DOE notified WSP that it had received an anonymous complaint detailing improper disposal of toxic waste into the storm drain and a major spill of diesel fuel during the removal of a 1,000-gallon underground storage tank. A DOE site inspection also revealed over a dozen livestock carcasses dumped next to a pond and wetlands.

• In October 1993, DOE found highly toxic tetrachloroethylene and trichloroethylene in both air and water samples taken downgradient from WSP’s former landfill, affecting ...

From the Editor

From the Editor

by Paul Wright

For several decades PLN has reported on the intersections between mass imprisonment, the criminal justice system and the environment. Most specifically, the environmental destruction and degradation that prisons impose on surrounding communities – whether it entails building prisons in pristine environments like the High Sierra Mountains of California or the deserts of Arizona, or siting them on toxic waste dumps like the Rikers Island jail complex in New York City or on abandoned coal mines in Ohio and Pennsylvania. In those cases it is the prisoners and staff who are exposed to the consequences of long-running environmental disasters, such as contaminated water. The flip side of the criminal justice environmental disaster coin is that of the prison itself as a polluter. Past issues of PLN have reported how prisons across the country have been the sources of toxic waste contamination, mostly from sewage but also from hazardous chemicals and other pollutants.

This month’s cover story, a PLN exclusive, focuses on the ongoing sewage discharges at the Monroe Correctional Complex in Monroe, Washington. The irony, of course, is that even as prison systems harm the environment they are now trying to “greenwash” themselves as somehow ...

Inside the Shadowy Business of Prison Phone Calls

Inside the Shadowy Business of Prison Phone Calls

An IBTimes investigation into the secretive world of selling phone calls to prisoners and their families.

by Eric Markowitz

Joanne Jones, an occupational therapist from Warwick, Rhode Island, has made an unlikely foe in the past year: Securus Technologies, a billion-dollar prison technology company based in Dallas.

Sitting at her kitchen table one recent afternoon in front of a stack of Securus bills, Jones explained that her 29-year-old son, Nate Jones, had been arrested on an aggravated robbery charge in January 2014. Her son’s life may have taken a negative turn, but Jones tries to keep in touch with him as often as possible.

They speak roughly once a week in a 15-minute phone call, and speak for another 25 minutes on a video chat. Jones says she’d travel to Texas to visit her son in person, but Hays County Jail, where he is locked up, banned visitations in November 2013. That happened shortly after the county jail entered into a contract with Securus.

Since then, all family communication with prisoners at Hays County goes through Securus, which charges Jones about $10 for a phone call and about $8 for ...

Michigan: $8 Million Settlement after Prisoner’s Baby Born with Brain Damage

Michigan: $8 Million Settlement after Prisoner’s Baby Born with Brain Damage

by Shepherd Litsey

In the U.S. District Court for the Eastern District of Michigan, plaintiff Chelsie Barker (identified as C.B. in the pleadings), a minor, through her conservator, Howard T. Linden, settled a civil rights lawsuit ...

Minnesota DOC Sued Over Failure to Provide New Hepatitis C Treatment Protocol

Minnesota DOC Sued Over Failure to Provide New Hepatitis C Treatment Protocol

by Greg Dober

On May 1, 2015, two prisoners at MCF-Stillwater filed a civil rights lawsuit against the Minnesota Department of Corrections, Centurion Managed Care (a division of Centene Corporation), DOC Commissioner Tom Roy and several physicians. The suit alleges that the defendants “refuse to provide the ‘breakthrough’ drug treatment, viz. the hepatitis-C [HCV] treatment community standard-of-care, which will cure Plaintiffs’ HCV infection in three months from its inception.”

According to a press release issued by the International Humanitarian Law Institute, the lawsuit is “the first federal civil rights class action in the nation” to challenge the failure of state prison officials to provide prisoners with a new, more effective hepatitis C treatment protocol.

The plaintiffs, Minnesota state prisoners Ronaldo Ligons and Barry Michaelson, seek to represent a class of similarly situated prisoners. Ligons, incarcerated since 1992, was prescribed the standard 48-week HCV treatment protocol using interferon in 2006. The treatment was not successful. Michaelson initially tested negative for HCV but tested positive for the disease in 2010. The suit states that Michaelson tested positive “only after being double-bunked with a bleeding, HCV-positive cellmate and his exposure to ...

UK Prison Cook Awarded $160,000 for Back Injury

UK Prison Cook Awarded $160,000 for Back Injury

by Derek Gilna

HM Swansea Prison catering manager Susan Cox, 46, was awarded over £100,000 (about $160,000) following an incident in which a sack of rice accidentally fell on her back. A court in Swansea, Wales had initially rejected her claim, but she challenged that denial and prevailed in the Court of Appeals.

Cox had been supervising six prisoners who worked with her in the prison kitchen as they carried food in from a delivery van. One prisoner got trapped in an elevator while another spilled some rice. Cox ordered the prisoners to stop work while she cleaned up the mess, but as she did so she was struck in the back by a 55-pound sack of rice when a prisoner disobeyed her order, tried to walk past her and lost his grip on one of the bags he was carrying.

As a result of that September 2007 incident Cox suffered spinal pain that forced her to miss work, and she filed for compensation with the Ministry of Justice (MOJ). Her claim was initially denied after prison officials argued that the “disobedient and foolish” prisoners were responsible for her ...

West Virginia City Settles Suit over Jail Prisoner’s Death for $460,000

West Virginia City Settles Suit over Jail Prisoner’s Death for $460,000

by Matt Clarke

On June 10, 2013, following a $460,000 settlement, a West Virginia federal court dismissed a lawsuit filed by the estate of a prisoner who died at the Bluefield City Jail.

According to the ...

$750,000 Settlement in New Mexico “Controlled Seating” Lawsuit

On September 2013, a proposed settlement was filed in a lawsuit over forcibly seating prisoners “nuts-to-butts” for hours at a time at a New Mexico state prison – a practice also known as “controlled seating.” The settlement provides $750,000 to be divided among the class members after incentive payments to ...

Alabama Courts Must Review Substance of Claim Despite Pleading’s Title

Alabama Courts Must Review Substance of Claim Despite Pleading’s Title

by David Reutter

The Alabama Court of Civil Appeals held on August 1, 2014 that a trial court should treat pleadings according to their substance rather than their captions. Accordingly, the appellate court reversed the dismissal of a criminal action and ruled the matter should have been treated as a civil case based upon the facts and requested relief in the petition.

In January 2014, Donaldson Correctional Facility prisoner Gregory J. Eddins, 46, who is serving a 30-year sentence, submitted a court filing entitled “Petition for Relief from Conviction or Sentence.”

The verified petition alleged a September 2010 laboratory test indicated Eddins had diabetes. Yet he was not being treated for that disease, putting him at “risk of going blind, losing a limb, going into diabetic coma, or dying.” Among the relief requested, Eddins asked state officials to “provide him with necessary or appropriate medical care to treat his diabetes.”

The trial court dismissed the action because the remedy he sought was not available through a Rule 32 petition, which is the mechanism to challenge a criminal conviction or sentence. Eddins appealed to the Alabama Court of Criminal Appeals ...

Second Circuit Unseals Jail Conditions Settlement Compliance Reports; Public Has First Amendment Right of Access

Second Circuit Unseals Jail Conditions Settlement Compliance Reports; Public Has First Amendment Right of Access

by Mark Wilson

On August 18, 2014, the Second Circuit Court of Appeals held “that the public’s fundamental right of access to judicial documents ... was wrongly denied” when a federal district court sealed settlement compliance reports in a jail conditions lawsuit.

Following a two-year investigation into conditions at two Erie County, New York jails, the United States filed suit in September 2009 pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997a et seq. The suit alleged that conditions at the jails violated the constitutional rights of prisoners “by failing (a) to protect them from harm, (b) to provide adequate mental health care or medical care, and (c) to engage in adequate suicide prevention.” [See: PLN, Nov. 2009, p.20].

The suicide prevention claims were resolved by a June 2010 partial settlement. Under the agreement, a compliance officer was appointed to report to the district court on the county’s suicide prevention efforts.

When the court refused to dismiss the remaining claims, the parties entered into a second settlement agreement in August 2011. Under that agreement, two court-appointed compliance ...

$3,000 Jury Award to Arizona Prisoner Denied Prostate Care

$3,000 Jury Award to Arizona Prisoner Denied Prostate Care

by David M. Reutter

An Arizona federal jury awarded $3,000 to a prisoner in a case involving the delay or denial of medical care. Post-trial, the district court awarded $3,908.25 in attorney fees and costs, but found ...

Nebraska Returns Ex-Offenders to Prison after Sentence Miscalculation Scandal

Nebraska Returns Ex-Offenders to Prison after Sentence Miscalculation Scandal

by Matt Clarke

Nebraska authorities have re-incarcerated nearly two dozen state prisoners who were released early because officials miscalculated their release dates. The state decided not to pursue hundreds of other offenders who had also been released prematurely.

Two Nebraska Department of Correctional Services (DOCS) employees were disciplined and several others retired due to the sentence computation problems, which apparently had been taking place since 1995.

“Their actions were inappropriate, inexcusable and irresponsible,” then-Governor Dave Heineman said at a joint August 15, 2014 press conference with Corrections Director Mike L. Kenney.

According to prison officials, 306 prisoners were released early after their release dates were miscalculated. Some still had up to eight years remaining on their sentences, and some were freed prior to their parole dates.

The miscalculations occurred despite two Nebraska Supreme Court rulings that detailed how good time was to be applied to prisoners’ sentences. In 2002, the state’s high court held that it would not serve the intent of the legislature if a prisoner was released prior to becoming eligible for parole. See: Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (Neb. 2002). The ...

Supreme Court Voids ACCA’s Residual Clause in Landmark Decision

Supreme Court Voids ACCA’s Residual Clause in Landmark Decision

by Derek Gilna

In a landmark decision authored by Justice Antonin Scalia, on June 26, 2015 the U.S. Supreme Court struck down the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), while leaving the rest of the statute intact. The impact of this ruling cannot be overstated for those who received mandatory minimum sentences based upon the ACCA’s residual clause.

Under federal law, certain people, including convicted felons, are prohibited from possessing or owning firearms. 18 U.S.C. § 922(g). “In general, the law punishes violation of this ban by up to 10 years’ imprisonment.... But if the violator has three or more earlier convictions for a ‘serious drug offense’ or a ‘violent felony,’ the Armed Career Criminal Act increases his prison term to a minimum of 15 years and a maximum of life.”

The ACCA defines “violent felony” to include four enumerated crimes (burglary, arson, extortion and use of explosives), as well as offenses that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another” – known as the Act’s residual clause. 18 U ...

San Diego Deputies Faulted for Jail Death

San Diego Deputies Faulted for Jail Death

by Christopher Zoukis

A civilian review board found that sheriff’s deputies lied and failed to take steps that could have saved a prisoner who swallowed meth before being booked into a San Diego Jail.

A sheriff’s official said jail staff thought Bernard Victorianne was suffering from psychological problems, not medical ones. On the September 2012 night that Victorianne, 28, was booked, however, he was screaming that “something was burning his insides.” He received no medical care and was put in solitary confinement rather than a medical observation unit where he would have been monitored.

A deputy reported that he had monitored Victorianne at an evening count. Video surveillance, however, showed the deputy passing by the cell rapidly. The next morning, Victorianne failed to retrieve his breakfast from his cell door; a deputy went in and tried waking Victorianne, who never responded. The deputy reported that he thought he saw Victorianne breathing, while another deputy stood in the doorway.

The two deputies violated policy requiring them to get the prisoner’s acknowledgement that he was OK, instead leaving after 41 seconds. When Victorianne’s body was found it was cold with rigor ...

Peer-Review Reports Must be Disclosed in Philadelphia Jail Conditions Suit

Peer-Review Reports Must be Disclosed in Philadelphia Jail Conditions Suit

by David Reutter

A Pennsylvania federal district court held on November 4, 2014 that medical care contractor Corizon Health has to produce mortality and sentinel event reviews in a class-action suit filed by prisoners in the Philadelphia Prison System (PPS) seeking equitable relief from unconstitutional conditions of confinement.

The lawsuit alleges that the PPS is overcrowded and triple-celled, and overcrowding results in danger to the health and safety of the prisoner population. Before the court was a discovery request filed by the plaintiffs that sought “mortality and sentinel event reviews for deaths that occurred in custody from January 2012 to December 1, 2013.”

The PPS defendants sought to obtain the discovery information from Corizon, a non-party to the suit, but the company objected, contending that the records were not discoverable because they were protected by Pennsylvania’s peer-review privilege law. The plaintiffs argued that federal courts do not recognize the state peer-review privilege.

The district court explained that where, as here, there are both federal and state law claims in a case, “the federal rule favoring admissibility, rather than any state law privilege, is the controlling rule.” Therefore, “the mere ...

Pell Grants for Prisoners: New Bill Restores Hope of Reinstating College Programs

Pell Grants for Prisoners: New Bill Restores Hope of Reinstating College Programs

by Christopher Zoukis

It’s been over 20 years since Jon Marc Taylor, Ph.D., a Missouri state prisoner and author of the Prisoners’ Guerrilla Handbook to Correspondence Programs in the U.S. and Canada, published an op-ed in the New York Times urging federal lawmakers not to ban Pell grants for prisoners. In the two decades since his plea the higher education landscape in our nation’s prison system has shifted drastically due to a lack of funding and public support. However, it now appears that might change and Dr. Taylor’s dream may finally come true.


The Restoring Education and Learning Act

On May 21, 2015, U.S. Rep. Donna F. Edwards (MD) introduced the Restoring Education and Learning (REAL) Act, H.R. 2521, which would make state and federal prisoners eligible for Pell grants – a form of federal financial aid for post-secondary education programs. Prisoners have been restricted from Pell grant eligibility since 1994, when President Bill Clinton signed the Violent Crime Control and Law Enforcement Act (VCCLEA) into law.

The REAL Act originally had 17 co-sponsors, including Representatives Danny K. Davis (IL), Barbara Lee ...

Two Names Added to Monument Memorializing Slain Prosecutors

Two Names Added to Monument Memorializing Slain Prosecutors

by Matt Clarke

Two more names will be added to the National Prosecutor Memorial in Columbia, South Carolina to mark the deaths of two Texas prosecutors, murdered within months of each other by a former Justice of the Peace who sought vengeance for his prosecution on theft charges. The additions bring the number of slain prosecutors to just 14 within the past 100 years.

Officials with the National District Attorneys Association, which maintains the memorial, said at least eight of the prosecutors were targeted in connection with their official duties, while several were killed in apparently random acts of violence or incidents unrelated to their jobs.

The low number is in stark contrast to the number of police officers killed in the line of duty, which now stands at more than 20,000 names on the National Law Enforcement Memorial in Washington, D.C.

Murders of state and local prosecutors are “beyond rare” according to Scott Burns, executive director of the National District Attorneys Association. “They’re not out on the street at 2 a.m. confronting people who are intoxicated, armed and violent,” he said. “So when a prosecutor is killed ...

UN Commission Approves Mandela Rules on Treatment of Prisoners

UN Commission Approves Mandela Rules on Treatment of Prisoners

by David Fathi [1]

May 22, 2015 was a milestone in the global movement for prisoners’ rights. On that day, the United Nations Commission on Crime Prevention and Criminal Justice, meeting in Vienna, unanimously approved the Mandela Rules on the treatment of prisoners.

The Rules – named in honor of the late South African President Nelson Mandela, who was imprisoned for 27 years by the apartheid regime – are the revised United Nations Standard Minimum Rules for the Treatment of Prisoners, or SMRs. The SMRs are the leading international body of principles on the treatment of prisoners, but they were originally drafted in 1955 and were badly in need of updating.

One of the most important revisions is the addition of significant restrictions on solitary confinement – a subject on which the original SMRs were silent. The Mandela Rules provide that solitary confinement “shall be used only in exceptional cases as a last resort for as short a time as possible and subject to independent review.” Indefinite solitary confinement and prolonged solitary confinement – defined as more than 15 consecutive days – are prohibited. Solitary confinement is also prohibited in the case of persons with mental ...

North Carolina Prisoner, Victim of Sexual Assault, Awarded One Dollar in Damages

North Carolina Prisoner, Victim of Sexual Assault, Awarded One Dollar in Damages

Shane Smith was incarcerated at North Carolina’s Craggy Correctional Center (CCC) when he was sexually assaulted multiple times by a prison supervisor. Even though he presented evidence of the assaults, even though he had requested a transfer ...

Jury Awards $12,000 to Connecticut Prisoner for Unsanitary Mattress

Jury Awards $12,000 to Connecticut Prisoner for Unsanitary Mattress

by David M. Reutter

A Connecticut federal jury awarded $12,000 in damages to a prisoner who was forced to sleep on an unhygienic mattress that was missing much of its stuffing.

The case involved a civil rights action alleging ...

Virginia Must Improve Prison Medical Care Under Proposed Class-action Settlement

Virginia Must Improve Prison Medical Care Under Proposed Class-action Settlement

by David Reutter

The Virginia Department of Corrections (VDOC) has agreed to let a court-appointed monitor examine medical policies at all state prisons, and to allow a third-party physician to oversee health care at the Fluvanna Correctional Center for Women (FCCW) as part of a proposed settlement in a class-action federal lawsuit.

The agreement was reached the same day that U.S. District Court Judge Norman K. Moon held the VDOC could not escape its constitutional responsibility to provide adequate medical care to state prisoners by hiring a private contractor. The parties filed a notice of settlement on November 25, 2014, just six days before a trial was scheduled to begin on the prisoners’ claims that health care at FCCW was so inadequate that it violated their Eighth Amendment rights.

“The Department of Corrections, as with most defendants, does not concede that they were at fault,” said Mary Bauer, director of the Legal Aid Justice Center, which represents the prisoners. “However, you can read into the settlement that significant changes need to be made.”

The lawsuit was filed in July 2012 on behalf of five prisoners at FCCW. [See: PLN ...

Report Finds Two-Thirds of Private Prison Contracts Include “Lockup Quotas”

Report Finds Two-Thirds of Private Prison Contracts Include “Lockup Quotas”

by Joe Watson

An analysis of private prison contracts from across the United States reveals that state and local governments commonly enter into agreements that require them to keep prisons filled or pay for unused, empty beds.

In the Public Interest (ITPI), a Washington, D.C.-based research and policy group on public services, reported in September 2013 that it found so-called bed guarantees in around 65% of the more than 60 private prison contracts it analyzed, including contracts from Texas, Ohio, Colorado and Florida. The bed guarantees, or “lockup quotas,” ranged from 70% minimum occupancy in at least one California facility to 100% occupancy at three Arizona prisons. The most common bed guarantee was 90%.

Public officials who agree to lockup quotas, according to corrections experts, become obligated – against their communities’ best interests – to keep prisons filled to ensure that taxpayer dollars aren’t being wasted.

“It’s really shortsighted public policy to do anything that ties the hands of the state,” said Michele Deitch, a senior lecturer at the University of Texas School of Public Affairs and an expert on private prisons. “If there are these incentives to ...

$1.15 Million for Florida Pretrial Detainee’s Death

$1.15 Million for Florida Pretrial Detainee’s Death

by David M. Reutter

A Florida federal jury awarded $975,000 to the estate of a woman who was denied medical and mental health treatment while held at the Pinellas County Jail (PCJ), and the parties later settled the case for ...

Supreme Court Rules Qualified Immunity Shields Prison Officials from Suicide Claim

Supreme Court Rules Qualified Immunity Shields Prison Officials from Suicide Claim

by Derek Gilna

In what can only be considered a step backward for holding corrections officials accountable for the preventable suicide of prisoners in their custody, the U.S. Supreme Court has held that the doctrine of qualified immunity shields officials from liability in a case involving a prisoner who killed himself. As a result, a federal lawsuit filed by the family of Christopher Barkes, who allegedly committed suicide due to an inadequate intake screening, was dismissed.

According to the Supreme Court, there was no question that Barkes was “a troubled man with a long history of mental health and substance abuse problems.” Following his arrest for probation violations in 2004, he was confined at the Howard R. Young Correctional Institution in Delaware, where an intake evaluation was performed that included a brief mental health screening. The nurse performing the screening, who was employed by a private contractor, used a form approved by the National Commission on Correctional Health Care (NCCHC). The form covered 17 suicide risk factors and required immediate suicide countermeasures if 8 or more factors were reported.

The nurse found only two indicators of suicidal tendencies ...

Tenth Circuit: Ignoring Prisoner’s Severe Pain Precludes Qualified Immunity

Tenth Circuit: Ignoring Prisoner’s Severe Pain Precludes Qualified Immunity

by Mark Wilson

On August 12, 2014, the Tenth Circuit Court of Appeals held that a prison nurse who refused to examine a prisoner suffering from severe abdominal pain was not entitled to qualified immunity.

At about 8:35 p.m. on October 5, 2008, Colorado prisoner Homaidan Al-Turki suddenly began feeling severe pain in his left side and abdomen. The pain was so intense that he collapsed, vomited and thought he was dying.

Al-Turki alerted a guard and requested medical attention. The guard called the medical center but Nurse Mary Susan Robinson was the only medical staff on duty.

Robinson knew that severe abdominal pain may be a symptom of several serious and potentially life-threatening conditions. She also knew that Al-Turki suffered from Type II diabetes, which made him more susceptible to certain serious illnesses, several of which cause pain as an initial symptom.

Nevertheless, Robinson refused to see Al-Turki, telling the guard that it was too late and his complaint was not an emergency. Al-Turki reported his condition to another guard, two more times that evening. The guard called Robinson but she still refused to see Al-Turki.

Both ...

Who Owns Private Prison Stock?

Who Owns Private Prison Stock?

by Alex Friedmann

The nation’s two largest for-profit prison companies, Tennessee-based Corrections Corporation of America (CCA) and Florida-based GEO Group (GEO), are publicly traded on the New York Stock Exchange. Other private prison firms, including Management & Training Corporation (MTC), Community Education Centers (CEC), LaSalle Southwest Corrections and Emerald Correctional Management, are privately-held and thus do not have public stock.

As of July 2015, CCA had issued approximately 117 million shares of stock with a market cap of $4.05 billion, while GEO had issued around 75 million shares with a market cap of $2.76 billion. So who owns the vast majority of stock in these two companies? The answer is not everyday people or individual investors, but rather other corporations – banks, mutual fund management companies and private equity firms – as well as public employee retirement systems.

In fact, around 92.4% of CCA’s stock was owned by 300 institutional investors while 91.1% of GEO Group stock was owned by 272 institutional investors at the end of July 2015. In some cases, the same institutional investors held stock in both companies.

The largest owner of CCA stock was Vanguard Group, Inc., with ...

Controversy Surrounds Shackling of Dying and Comatose Prisoners in UK

Controversy Surrounds Shackling of Dying and Comatose Prisoners in UK

by Matt Clarke

Authorities at Great Britain’s HM Prison Frankland pledged to change the way ill and dying prisoners are shackled in the aftermath of a scathing report by the UK’s prison ombudsman concerning a prisoner who died while chained to a guard because prison officials twice refused requests by medical staff to have the restraints removed.

“This was inhumane,” wrote Nigel Newcomen, the Prisons and Probation Ombudsman, in a January 2014 report that noted the failure of authorities to authorize the removal of shackles from Paul Culshaw, 45, violated a ruling by Britain’s High Court that required medical recommendations be considered in the use of restraints on prisoners judged to be a low risk of escape.

Culshaw, who was serving a mandatory life sentence for murder and had been incarcerated since 2004, died on February 6, 2013 of a heart attack. Other than the refusal of prison officials to authorize the removal of shackles, Newcomen’s investigation found no irregularities in the response of prison staff to Culshaw’s medical condition, nor his treatment at the hospital.

“It is wholly unacceptable that the restraints were not ...

Alaska High Court Reaffirms Negligence Standard to Protect Prisoners from Harm

Alaska High Court Reaffirms Negligence Standard to Protect Prisoners from Harm

by David Reutter

The Alaska Supreme Court, in a negligence suit filed by a former prisoner, reaffirmed its standard that a jailer has a duty to protect prisoners from all reasonably foreseeable harm. As to the merits of the case, the Court found the plaintiff presented evidence that, taken as a whole, raised a genuine issue of fact as to the foreseeability of the attack he suffered.

The decision stemmed from events that occurred while Richard A. Mattox was held at the Spring Creek Correctional Center in 2008. Mattox, who is white, was celled with an African-American prisoner identified only as “Aaron.”

Mattox contended that Aaron repeatedly made threats of a racial nature. “I don’t like you. Your people were killing my people back in the day,” Mattox said Aaron told him. “You’ve got to get out or something’s going to happen.” The threat was made every time they were in the cell together, leading Mattox to believe black prisoners wanted him out of the unit.

Mattox allegedly made multiple requests to two different guards to be moved from the unit, stating it was “too tough ...

Supreme Court Strikes Down Ban on Short Beard for Muslim Prisoner

Supreme Court Strikes Down Ban on Short Beard for Muslim Prisoner

by Derek Gilna

In a unanimous decision, the U.S. Supreme Court found a restriction imposed on a Muslim prisoner who wanted to grow a short beard for religious reasons violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). Gregory Houston Holt, AKA Abdul Maalik Muhammad, a devout Muslim, had sought permission from the Arkansas Department of Correction (ADOC) to grow a half-inch beard to conform to his religious beliefs. The ADOC denied his request and Holt filed a pro se suit in federal court.

The ADOC asserted that it routinely banned all beards, except those of one-quarter inch length for medical reasons only, and that the reason for the policy was to prevent prisoners with longer beards from concealing contraband or changing their appearance to avoid identification, such as following an escape. The district court adopted the recommendation of the federal magistrate, who – although stating “it’s almost preposterous to think that you could hide contraband in your beard” – cited the deference given to corrections officials, and dismissed Holt’s complaint. The Eighth Circuit affirmed the dismissal and Holt sought certiorari review by the Supreme Court, which ...

Ninth Circuit Finds that ICE Detention After Indictment Counts Against Sentence

Ninth Circuit Finds that ICE Detention After Indictment Counts Against Sentence

by Derek Gilna

Petitions under 28 U.S.C. § 2241 are used to challenge federal sentencing calculations, and Daniel Alejandro Zavala did just that, arguing that he was entitled to credit for the time he spent in Immigration and Customs Enforcement (ICE) custody after he was indicted. The district court disagreed but the Ninth Circuit reversed on May 18, 2015, holding that Zavala was entitled to credit for time served in ICE custody under 18 U.S.C. § 3585(b).

After completing a state sentence, Zavala, a Mexican national, was detained by ICE. The agency determined that he had previously been removed from the United States by a deportation order and had reentered the country illegally. He was then prosecuted for illegal reentry, transferred between ICE and U.S. Marshals custody several times, and eventually sentenced to 46 months in federal prison.

The BOP granted Zavala sentencing credit for time spent in the custody of the U.S. Marshals prior to his conviction, but not for time served in ICE custody.

According to § 3585, a defendant is entitled to sentencing credit for time spent in “official detention prior to ...

Vermont: Retaliatory Furlough Denial Reviewable on Rule 75 Motion

Vermont: Retaliatory Furlough Denial Reviewable on Rule 75 Motion

by Mark Wilson

The Vermont Supreme Court has reversed a lower court’s denial of a prisoner’s motion to reopen his post-conviction relief case alleging the retaliatory denial of a furlough.

Before 2001, furlough eligibility for Vermont prisoners was not contingent on their completion of a minimum amount of their sentence. 28 V.S.A. § 808 (2000). In 2001, however, the legislature amended the law, making completion of a minimum term a prerequisite to conditional reentry furloughs. 28 V.S.A. § 808(a)(6)(2013).

Prisoner Roy Girouard was convicted of murder in 1975 and sentenced to life without a minimum term. The Vermont Department of Corrections (DOC) refused to consider him for a furlough because he lacked a minimum sentence.

Girouard filed a post-conviction relief action under Rule 75 of the Vermont Rules of Civil Procedure, alleging the DOC’s refusal to consider him for a furlough under the 2001 amendment to § 808 violated the U.S. Constitution’s ex post facto prohibition.

The superior court dismissed, concluding that the 2001 amendment did not increase the penalty for Girouard’s offense. The state Supreme Court reversed and remanded for ...

Failure to State Rationale in Denying Appointment of Counsel was Abuse of Discretion

Failure to State Rationale in Denying Appointment of Counsel was Abuse of Discretion

The Seventh Circuit Court of Appeals held in July 2014 that the denial of a prisoner’s motions for appointment of counsel in a civil rights action was an abuse of discretion. It also stated the district court had improperly decided a summary judgment motion without resolving a pending motion for more time to conduct discovery.

Indiana prisoner Leonard Dewitt, 51, filed a civil rights complaint alleging deliberate indifference to his serious medical needs against private medical contractor Corizon. He alleged that in 2007 while at the Wabash Correctional Facility, he submitted a Request for Healthcare to Corizon staff, stating something was wrong with his left eye and his vision was “like looking through a dirty piece of plastic.” He was prescribed glasses.

Upon release on parole in May 2008, Dewitt was diagnosed with a form of glaucoma and underwent surgery. He was reimprisoned in 2009 and again requested care for his eye. He received medication that did not work, as well as other treatment, but not the care that he specifically sought – removal of his left eye. He eventually had surgery to remove part of his ...

Three Strikes Litigant Required to Show Ongoing “Imminent Danger” to Proceed on Appeal

Three Strikes Litigant Required to Show Ongoing “Imminent Danger” to Proceed on Appeal

by Lonnie Burton

On January 7, 2015, the Ninth Circuit Court of Appeals held that a pro se prisoner litigant who had accumulated three strikes under 28 U.S.C. § 1915(g) for filing frivolous lawsuits must demonstrate that he or she continues to be in “imminent danger” to pursue an appeal.

Lonnie C. Williams, Jr., a transgender prisoner incarcerated at the Richard J. Donovan Correctional Facility in San Diego, California, sued three prison officials, alleging they had started false rumors that she was a sex offender. Williams also claimed the officials – Warden Daniel Paramo, Counselor R. Olson and E. Marrero – added an “R” suffix to her records, which in California designates the prisoner as a sex offender. As a result of their actions, Williams was under constant threat of harm from other prisoners, she said.

When Williams attempted to file a grievance over the matter, Paramo prevented her from doing so, saying “So what? That is not my problem. That is your problem!” A counselor later refused Williams’ request to file a grievance and rejected her appeal.

After she sued, the defendants moved to dismiss her ...

Nebraska Law Unconstitutionally Forfeits Good Time for Refusal to Submit DNA Sample

Nebraska Law Unconstitutionally Forfeits Good Time for Refusal to Submit DNA Sample

by David M. Reutter

The Nebraska Supreme Court has held that a retroactive state law which requires prisoners to submit DNA samples violates the Ex Post Facto Clause for increasing “the quantum of punishment” when a prisoner refuses to submit a sample and suffers loss of good time credit.

State prisoner George Shepard was sentenced on July 11, 1990 to a combined term of 50 years for sexual assault in the first degree and manufacturing child porn­ography. In 1997, the Nebraska legislature enacted what is now known as the DNA Identification Information Act (the Act), Neb. Rev. Stat. § 29-4106(2) (2012).

The Act applies retroactively to prisoners “still serving a term of confinement or probation” for a “felony offense or other specified offense” before July 15, 2010. It provides that a prisoner “shall not be released prior to the expiration of his or her maximum term of confinement or revocation or discharge from his or her probation unless and until a DNA sample has been collected.”

The Nebraska Department of Correctional Services (NDCS) applies the penalty to prisoners who refuse to provide a DNA sample by taking ...

Does Political Spending by Private Prison Firms in Oklahoma Influence Prison Reform?

Does Political Spending by Private Prison Firms in Oklahoma Influence Prison Reform?

by Joe Watson

Three private prison corporations, including the nation’s two largest, have contributed more than a combined $400,000 to political candidates in Oklahoma since 2004, prompting at least one prominent state legislator to question the correlation between political spending and the state’s stalled Justice Reinvestment Initiative (JRI), a prison reform law enacted in 2012.

“Follow the money,” said state Senator Constance Johnson. “This whole notion of special interests having undue influence on the legislative process, this is proof.” Johnson, a long-time advocate of sentencing reform, said the Oklahoma legislature has increasingly become “pro-private prisons, pro-enhanced felonies; the thing I stand up and argue about all the time.”

A Tulsa World analysis of campaign finance reports disclosed by the Oklahoma Ethics Commission, published on January 6, 2014, revealed that Corrections Corporation of America (CCA), The GEO Group, Inc. and Avalon Correctional Services, Inc. together donated $414,397 to the campaign coffers of Governor Mary Fallin, Lt. Governor Todd Lamb, House Speaker T.W. Shannon and at least 78 other state lawmakers, including the chairman of the Senate Appropriations Committee, Senator Clark Jolley.

The analysis found ...

Ninth Circuit Finds Graham v. Florida Retroactive; 254-Year Sentence Unconstitutional

Ninth Circuit Finds Graham v. Florida Retroactive; 254-Year Sentence Unconstitutional

by Mark Wilson

On August 7, 2013, the Ninth Circuit Court of Appeals held the Supreme Court’s categorical ban on life without parole (LWOP) sentences for non-homicide juvenile offenders applied retroactively on collateral review.

Roosevelt Brian Moore sexually assaulted four women on different occasions in February and March 1991. Despite being 16 years old, he was tried as an adult and convicted on 24 counts, including forcible rape, second-degree robbery, forcible sodomy and kidnapping.

The trial court imposed consecutive sentences totaling 254 years and four months. Moore was required to serve half his sentence – 127 years and two months – before becoming eligible for parole. “Because Moore would have to live to be 144 years old to be eligible for parole,” the Ninth Circuit observed, “his chance for parole is zero.”

Moore unsuccessfully exhausted his appellate remedies on May 27, 1993. Seventeen years later, however, the U.S. Supreme Court issued its decision in Graham v. Florida, 130 S.Ct. 2011 (2010) [PLN, Dec. 2010, p.42], finding that the Eighth Amendment imposes a categorical ban on LWOP sentences for juveniles convicted of non-homicide offenses. “The Constitution requires the State ...

Notorious Psych Ward at Miami-Dade Jail Finally Shuttered

Notorious Psych Ward at Miami-Dade Jail Finally Shuttered

by David Reutter

In a historic culmination to decades of “horrific” living conditions and a pattern of constitutional violations, the Miami-Dade County Jail in Florida has finally closed the “Forgotten Floor” – the notorious ninth floor at the facility that was used to house mentally ill prisoners, often for months and years at a time, with levels of care so abysmal that prisoners routinely died.

“It is thrilling on one level but kind of sad that it has taken so long,” said Miami-Dade Judge Steve Leifman of the December 23, 2014 closure of the jail’s ninth floor. “A lot of people have been hurt or died up there.” Leifman, as chair of the 11th Circuit Mental Health Project, has been a long-time advocate for the mentally ill.

In 2013 alone, three mentally ill prisoners housed on the ninth floor died. On August 26, Joseph Wilner, 59, was found “unresponsive” in his cell; jailed for driving on a suspended license, he was in the unit reserved for the most acute mental cases.

In July 2013, Leifman was informed of the death of wheelchair-bound prisoner Joaquin Cairo. An employee with the jail’s diversion ...

Kentucky Jail Prisoners Make Mattresses

Kentucky Jail Prisoners Make Mattresses

by David Reutter

The Daviess County Detention Center (DCDC) in Western Kentucky has a program that uses prisoners to manufacture mattresses. The program is expected to save the 700-bed facility $10,000 a year and provide a service to the local community.

Previously, DCDC purchased around 200 mattresses annually due to damage or wear and tear, costing the jail about $100 each. Jailer David W. Osborne learned that a facility in Sevier County, Tennessee was making its own mattresses, so he sent a deputy to investigate.

“When I first learned of this, I thought, ‘we’ll need a big, old building,’” said Osborne. It turned out that two prisoners and a single commercial sewing machine can make up to 20 mattresses in an eight-hour shift. “It’s fairly simple,” he said. “We bought a used sewing machine.”

The mattresses made by the prisoners are sturdier because the covers are vinyl, which is more durable. “We can do this for $50 [per mattress],” said Osborne. “They are much more comfortable than the ones we were buying.”

As the mattress-making work is considered community service, prisoners receive pay of $.63 per day for an eight-hour shift and ...

Tennessee Prisoners Suing Private Prisons Not Required to File in Local Venue

Tennessee Prisoners Suing Private Prisons Not Required to File in Local Venue

by David Reutter

The Tennessee Supreme Court has held that a state statute requiring a local venue for lawsuits filed by indigent prisoners does not apply to actions that accrued while a prisoner “was housed in a correctional facility operated by a private corporation pursuant to a contract with the state or local government.”

When Tennessee state prisoner Sandy Eugene Womack arrived at the Whiteville Correctional Facility (WCF) in Hardeman County in February 2010, he had a cut on his right ankle. He alleged that he did not receive adequate treatment for the cut and, as a result, his right leg was amputated below the knee on September 28, 2010. WCF is owned and operated by Corrections Corporation of America (CCA).

At the time he filed suit, Womack was housed at the DeBerry Special Needs Facility located in Davidson County, a state prison run by the Tennessee Department of Correction (TDOC). Womack filed his lawsuit in Davidson County, stating it was “CCA’s principal place of business” and alleging the company’s “negligent acts, omissions, and/or intentional acts ... result[ed] in the amputation of [his] leg.”

CCA ...

Investigation Forces Arizona Clemency Board Chairman to Resign

Investigation Forces Arizona Clemency Board Chairman to Resign

by Joe Watson

A Republican political consultant who was appointed by Governor Jan Brewer to head Arizona’s Board of Executive Clemency (Board) said he was “forced out” of the position after a discrimination complaint filed against him resulted in a state investigation.

Jesse Hernandez, who led a Latino group that ironically supported Arizona’s unconstitutional anti-immigrant law SB1070 before being chosen by Brewer as the chairman of the clemency board, stepped down on August 16, 2013 after the investigation found him guilty of inappropriate behavior, including sexual harassment and nepotism.

Hernandez’s appointment to the Board in April 2012, along with two other members, followed the termination of three of the Board’s five members who had clashed with Governor Brewer over clemency recommendations. [See: PLN, July 2013, p.1]. According to Duane Belcher, the Board’s then-chairman, Brewer overhauled the Board “to manipulate the outcome of clemency hearings.”

A heavily-redacted report from Arizona’s Department of Administration (ADA) said Hernandez gave his girlfriend, who was employed in the clemency office, a promotion and raise worth $21,340 a year even though she wasn’t qualified for the position. One media ...

Prisoners Released When Jails Can’t Feed Them

Prisoners Released When Jails Can’t Feed Them

by Mark Wilson

"We didn’t have food for them and we don’t want to violate anyone’s rights when they are here,” said Wellston, Missouri Police Chief G. Thomas Walker, explaining why he released all of the prisoners from the city jail. “To keep people, we have to feed them.”

Walker, who said he had not had a formal budget since the 2010-11 fiscal year, blamed Wellston Mayor Linda Whitfield for the problem.

“I’ve made several requests over the past couple of months for food and they are telling me it is the mayor that is holding it up,” he said.

When the city stopped funding jail meals, officers – who earn just $11.96 an hour and are required to purchase their own guns, ammunition, flashlights and uniforms – paid for food out of their own pockets.

“I’ve had officers that have went to Save-A-Lot and bought cold cuts and bread to give the prisoners,” said Walker. “We sent in a request for reimbursement, and it was sent back by the bookkeeper on the request of the mayor.”

So on July 26, 2013, Walker ordered the release of the ...

Final Class-Action Settlement Pending in “Kids for Cash” Scandal

Final Class-Action Settlement Pending in “Kids for Cash” Scandal

A class-action suit is on the verge of being settled by the co-owner of two for-profit juvenile detention facilities in Pennsylvania, who was sued after a pair of state court judges accepted bribes to improperly funnel juvenile offenders into the facilities. A proposed $4.75 million settlement was filed in March 2015 but has not yet been approved by U.S. District Court Judge A. Richard Caputo.

In related developments, on March 3, 2014, the U.S. Supreme Court refused to hear the appeal of one of the former judges who challenged his conviction and federal prison sentence. The refusal leaves intact a Third Circuit Court of Appeals decision upholding the conviction and 28-year sentence imposed on former Luzerne County judge Mark A. Ciavarella, Jr., 63. See: United States v. Ciavarella, 716 F.3d 705 (3d Cir. 2013), cert. denied. Fellow former Luzerne County judge Michael T. Conahan is serving a 17½ year sentence after pleading guilty to racketeering conspiracy. [See: PLN, Nov. 2011, p.14].

“We’re very pleased with the Supreme Court decision not to hear his appeal,” said U.S. Attorney Peter J. Smith, whose office prosecuted Ciavarella ...

CA: Persons on Community Supervision Eligible to Seek Transfer to Another State

CA: Persons on Community Supervision Eligible to Seek Transfer to Another State

by Lonnie Burton

Reversing a lower court’s ruling to the contrary, the Court of Appeal for the Fourth District of California held on October 22, 2014 that a defendant released into the community as part of a prison sentence may apply for transfer of his or her supervision to another state.

Lavina C. Wofford was sentenced to an eight-year prison term under California’s Realignment Act, which allowed her sentence to be served locally as a “split sentence” with three years served in jail and a five-year suspended sentence served in the community under mandatory supervision. Under the conditions of Wofford’s supervision, she was required to obtain the court’s approval before moving to another state. Approval from the California Interstate Compact Office was also required.

Wofford filed a motion in superior court seeking permission to submit an application to the Compact Office for transfer to Virginia. The court denied her request, holding that people serving mandatory supervision sentences are ineligible to apply for transfers. Wofford filed an appeal, which the appellate court treated as a petition for mandate.

In granting the petition, the Court of ...

News in Brief

News in Brief

Alabama: Alabama’s grossly overcrowded prison system was already facing lawsuits over poor medical treatment for prisoners when Pam Barrett of the Alabama Department of Public Health announced on August 13, 2014 that nine active cases of tuberculosis had been diagnosed in state prisoners. That number doesn’t sound high, but health officials said the outbreak was the worst the prison system had seen since 2009. All but one of the cases occurred at the St. Clair Correctional Facility.

Alaska: On January 30, 2015, two men who escaped from custody in separate incidents were both captured. Logan Austin, 23, walked away from the North Star Center halfway house on January 14, 2015, while 38-year-old Michael Bracht escaped a week later while in the custody of a third party, just hours before he was scheduled to begin serving a 32-month prison sentence on charges that included an armed standoff with police. Both men had been described by Alaska State Troopers as “dangerous” escapees.

Brazil: In the early hours of February 5, 2015, three women approached the Nova Mutum prison dressed in dominatrix costumes. They convinced the guards to let them inside, then drugged the men with spiked whiskey ...


 

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