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Prisoner Education Guide

Prison Legal News: April, 2016

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Volume 27, Number 4

In this issue:

  1. Jailhouse Medicine - A Private Contractor Flourishes Despite Controversy Over Prisoner Deaths (p 1)
  2. From the Editor (p 8)
  3. Massachusetts: Lawsuit Filed to Stop Dog Searches of Prison Visitors (p 9)
  4. Excited Delirium Syndrome: Medical Condition or Cover-Up? (p 10)
  5. New Mexico: Sharon Jones’s Strep Death Among Shocking Prison Tragedies in Lawsuits (p 12)
  6. South Carolina Sheriff Resigns, Pleads Guilty to DUI (p 14)
  7. D.C. Circuit Court Partially Stays FCC Order Capping Prison and Jail Phone Rates (p 14)
  8. California Lifers Paroled in Record Numbers (p 16)
  9. Settlement in California Jail Suit Includes $4.8 Million in Attorney Fees, Costs (p 18)
  10. 2015 Annual Anti-Private Prison Awards Announced (p 18)
  11. Texas Parole Records Mistake Could Cost Taxpayers Millions (p 20)
  12. U.S. Supreme Court Reverses Idaho Supreme Court, Asserts “Federal Supremacy” (p 21)
  13. Prisoners Hang Themselves in Sheriff Joe Arpaio’s Jails at a Rate that Dwarfs Other County Lockups (p 22)
  14. Use of Nutraloaf on the Decline in U.S. Prisons (p 24)
  15. New Federal Law that Brands Sex Offenders’ Passports Faces Court Challenge (p 25)
  16. $11.3 Million Jury Award for Former Colorado Jail Prisoner (p 26)
  17. Lifetime Registration of Low-level Sex Offenders found Excessive, Unconstitutional in New Hampshire (p 26)
  18. Texas Disciplinary Appeals Board Upholds Disbarment of State Prosecutor (p 27)
  19. Deaths of Prisoners in Indiana, California and Arkansas Linked to Flu Virus (p 28)
  20. $360,000 Verdict Against Indiana Sheriff for Denying Prompt Court Hearings (p 29)
  21. California Supreme Court Voids Ex Post Facto Sex Offender Residency Restrictions (p 30)
  22. Exonerated New York Prisoner Recovers $21.9 Million in Damages (p 30)
  23. California: Strip Searches of Prison Visitors No Longer Allowed (p 31)
  24. $2.5 Million Award for Wrongfully Convicted Former Michigan Prisoner (p 32)
  25. Ninth Circuit Rules Judge “Abused Discretion” in Imposing Abstinence as Supervised Release Condition (p 32)
  26. Seventh Circuit Reverses Dismissal of Terre Haute Prisoner’s FTCA Suit (p 33)
  27. Sixth Circuit Allows Revival of Untimely Habeas Appeal Using Rule 60(b) (p 34)
  28. $550,000 Jury Award for Failure to Treat Prisoner’s Broken Jaw (p 34)
  29. Defense Verdict in Kentucky Prisoner’s Death; Appellate Court Reverses (p 36)
  30. Kentucky Restores Voting Rights for Former Prisoners, then Reverses Course (p 36)
  31. Prison’s Censorship of Newsweek Upheld (p 38)
  32. Lawsuits Challenge Release Debit Cards; Courts Rule Against Arbitration (p 38)
  33. Texas: $400,000 Settlement Award to Mentally Ill Jail Prisoner (p 39)
  34. The Will of the People: Ex-prisoners Voted into Public Office (p 40)
  35. Ninth Circuit: Improper ICE Detainer Constitutes Article III Injury (p 42)
  36. Transparent Jumpsuit for Prison Transport May Violate Eighth Amendment (p 43)
  37. Privately-operated Texas Prison Rebounds (p 44)
  38. Delayed Washington Competency Evaluations and Treatment Violate Due Process (p 46)
  39. Sacramento County Settles Former Jail Prisoner’s Lawsuits for $3,800 (p 46)
  40. Lawsuit Claiming CMUs Lack Due Process on Appeal to D.C. Circuit (p 47)
  41. Book Review: "Illegal to Legal: Business Success for (ex)Criminals, by R.L. Pelshaw" (p 48)
  42. Colson Task Force Report Highlights BOP Issues, Makes Recommendations (p 48)
  43. Second Circuit Allows Muslim Prisoners’ Bivens Claims to Proceed (p 50)
  44. DOJ Settlement to Improve Conditions at Mississippi Juvenile Facility (p 50)
  45. “Fatal Neglect” Report Faults ICE Health Care for Deaths of Detained Immigrants (p 52)
  46. Ninth Circuit: Freezing Prisoner’s Funds Requires Pre-deprivation Process (p 52)
  47. Pepper-spraying Sleeping Prisoner Unconstitutional, but Case Loses at Trial (p 53)
  48. Architects’ Ethics Panel to Consider Boycott of Execution Chambers and Prison Design (p 54)
  49. Deaf Prisoners Win Important Settlements in Kentucky and Maryland (p 55)
  50. $3.5 Million for South Carolina Prisoner’s Death Due to Deliberate Indifference (p 56)
  51. Tennessee Prisoner Awarded $60,000 for Guards’ Use of Excessive Force (p 56)
  52. Report Finds Shortcomings at Santa Clara County, California Jail (p 57)
  53. Failure to Timely Assert Affirmative Defense in Responsive Pleading Constitutes Waiver (p 58)
  54. Court’s Gag Order in Michigan Jail Corruption Case Reversed (p 58)
  55. $2.5 Million Settlement in North Carolina Prisoner’s Dehydration Death (p 59)
  56. Federal Lawsuit Claims Negligence Caused Pennsylvania Prisoner’s Heroin Overdose Death (p 60)
  57. Irish High Court Bars Extradition of Terror Suspect to U.S., Citing Inhumanity of Solitary Confinement (p 60)
  58. Medical Marijuana Use by Arizona Probationer Cannot Support Violation (p 61)
  59. News in Brief (p 63)

Jailhouse Medicine - A Private Contractor Flourishes Despite Controversy Over Prisoner Deaths

Jailhouse Medicine - A Private Contractor Flourishes Despite Controversy Over Prisoner Deaths

by Brian Joseph, FairWarning

In July 2011, a jailhouse nurse in Imperial County, California found prisoner Marsha Dau lying naked and dazed on the concrete floor. Charged with illegally transporting aliens, Dau, 58, recently had been exhibiting strange and aggressive behavior. For her own safety, the jail put her in an empty, beige cell with no clothes. Now, three days later, she was on her back, semi-conscious and pale.

The nurse who found her was Elisa Pacheco, an employee of the California Forensic Medical Group, a private company that provides correctional medical services to rural counties like Imperial, near the Mexico border. Pacheco later would testify Dau looked dehydrated. But she didn’t treat it as an emergency.

Rather than call an ambulance – which the company said would have cost several hundred dollars – Pacheco, in her testimony, acknowledged that she instructed guards to get Dau to a hospital in 30 to 40 minutes. Two guards dressed Dau in orange shorts, a yellow shirt and a yellow jumpsuit, then chained her to a wheelchair. As they wheeled her to a van, Dau’s head slumped forward. One of the guards later remembered her colleague ...

From the Editor

Recent decades have seen the rise of not only private, for-profit prisons but also the privatization of other aspects of corrections systems, most notably the provision of medical care. As with prison privatization, the only people who have benefited are the owners of and investors in the companies. Everyone else – prisoners, taxpayers and the government itself – has received short shrift with little to show for privatization except empty, unrealized promises of cost savings.

The prison medical industry is dominated by a few large corporations such as Corizon, Centurion and Wexford Health Sources, which are the core oligopoly companies. There are smaller players, too, though most will likely eventually be bought out by one of the larger ones. These smaller firms typically operate at the regional and local levels, and rarely make national news or headlines. Their business model is the same: to provide as few services as possible while billing the government as much as possible. This month’s cover story examines the California Forensic Medical Group, one of those small regional companies whose body count and track record of inadequate care, negligence, incompetence and greed puts it in the running with the larger corporations in the prison medical ...

Massachusetts: Lawsuit Filed to Stop Dog Searches of Prison Visitors

The American Civil Liberties Union (ACLU), Boston-based Prisoners’ Legal Services of Massachusetts (PLSM) and attorney Leonard Singer filed suit against the Massachusetts Department of Correction in January 2014 to prevent prison officials from using drug-sniffing dogs to search visitors.

“Putting visitors through the humiliation of dog searches will reduce visits far more than it reduces drug flow,” PLSM executive director Leslie Walker said of the searches, which were introduced by the DOC in November 2013 due to a purported increase in drugs and contraband being smuggled in by visitors. “This is counterproductive because all the research shows that family visits are key to successful reentry after prison.”

If a dog alerts to the presence of drugs, visitors must consent to a pat search or strip search or be barred from visiting.

“In order to prove the dog wrong, visitors will have to agree to intrusive and humiliating searches,” said ACLU of Massachusetts staff attorney Sarah Wunsch. “This is senseless. We should be encouraging family visits, not discouraging those who are frightened of dogs. Anybody who really was carrying drugs would turn away if there were dogs at the facility on that day, and would simply come back ...

Excited Delirium Syndrome: Medical Condition or Cover-Up?

Debate is quietly raging within the medical and law enforcement communities about a diagnosis first identified more than 160 years ago which more recently has become associated with the deaths of people in police custody, many of whom were involved in physical altercations with officers or shocked with Tasers before they died.

The diagnosis of “excited delirium syndrome” was initially linked to psychiatric patients during the late 1840s, but was little heard of until the 1980s when authorities in Miami began using it to explain deaths linked to cocaine use, mental illness and confrontations involving the police. Officials claim the syndrome, a rare neurological condition, turns normally peaceful individuals into raging, violent attackers.

Since 2002, according to records from the Miami-Dade Medical Examiner’s Office, 29 people have died in the South Florida city due to excited delirium; of those, nine were Tased and two others, who were also stunned with Tasers, were found to have had contributing causes – cocaine intoxication or “psychosis.”

Critics contend that excited delirium syndrome is not grounded in science, but instead based on shaky medical research that is used to cover up aggressive police tactics.

“The data supporting it is tenuous,” said Indiana University ...

New Mexico: Sharon Jones’s Strep Death Among Shocking Prison Tragedies in Lawsuits

by Michael Roberts, Westword

Westword recently shared video showing the jailhouse death of Michael Lee Marshall. The homeless man, who suffered from symptoms associated with paranoid schizophrenia, choked on his own vomit after being restrained by Denver, Colorado deputies in a November 2015 incident the city coroner’s office has labeled a homicide.

It’s a shocking tale, but hardly an isolated one. We’ve been reporting for years about dubious medical care and alleged mistreatment of physically or mentally ill prisoners at prisons and similar facilities, including Ken McGill, who was awarded $11 million over a stroke he suffered at the Jefferson County jail.

Now, the Denver-area law firm that represented McGill – Holland, Holland, Edwards & Grossman, P.C. – is collaborating with Farmington, New Mexico’s Tucker, Burns, Yoder & Hatfield on a series of lawsuits involving the San Juan County Detention Center in San Juan County, New Mexico, just over the Colorado state line near Durango.

The allegations contained in the complaints come across as real life horror stories with tragic endings that could have been easily prevented but weren’t as a result of what attorney Anna Holland Edwards calls “a system that incentivizes ignoring serious medical conditions because it costs ...

South Carolina Sheriff Resigns, Pleads Guilty to DUI

In 2012, a historic $599,000 settlement was reached between Prison Legal News and then-Berkeley County, South Carolina Sheriff Wayne DeWitt after the Berkeley County jail rejected PLN’s monthly publication and books mailed to prisoners at the facility. At the time, the jail only allowed prisoners to receive Bibles. The settlement included $100,000 in damages plus $499,000 in attorney fees, and represents the largest amount ever paid in a First Amendment jail or prison censorship case in the United States. [See: PLN, Feb. 2012, p.14; Nov. 2010, p.38].

PLN subsequently filed a public records request with the South Carolina Budget and Control Board, which revealed that Berkeley County had paid an additional $390,036.70 in attorney fees and costs to defend against the lawsuit.

DeWitt, who served as sheriff for 20 years, resigned on February 4, 2015, saying he had “cast a cloud” over his post following his arrest on December 28, 2014 for DUI and leaving the scene of an accident. DeWitt was driving a county pickup truck when he rear-ended another vehicle at an intersection. He then fled the scene – and pursuing police – at speeds of over 100 mph for more ...

D.C. Circuit Court Partially Stays FCC Order Capping Prison and Jail Phone Rates

Over 1.5 million families with loved ones in state and federal prisons will experience significant financial relief with respect to the costs of Inmate Calling Services (ICS) beginning March 17, 2016, despite the best efforts of several major ICS providers, including Global Tel*Link, Securus and Telmate, and a court-ordered partial stay on rate caps.

The Federal Communications Commission (FCC) voted on October 22, 2015 to enact reforms to protect families that rely on phone calls to stay in touch with incarcerated loved ones. [See: PLN, Dec. 2015, p.40]. ICS providers wasted no time in appealing to the U.S. Court of Appeals for the D.C. Circuit in an attempt to invalidate the FCC’s order, so they can continue to prey on prisoners’ families through inflated phone rates and exorbitant fees.

Historically, the cost of prison phone calls has been extremely high – more than $1.00 per minute in many cases. Under the leadership of Commissioner Mignon Clyburn as Acting Chair, the FCC took the first step in reforming the prison phone industry with a historic vote in August 2013 to cap interstate (long distance) ICS calls with interim rates of $0.25/min. for collect ...

California Lifers Paroled in Record Numbers

Prisoners serving life sentences in California have been paroled at a record rate since Governor Jerry Brown took office in January 2011 – a positive trend in the view of many advocacy groups, but one that causes worry among victims’ rights advocates despite statistics which reveal a recidivism rate of less than one percent for paroled lifers.

California is one of only three states where the governor has final say on decisions by state parole boards (Maryland and Oklahoma are the other two), and Brown has approved parole for 82% of the 1,590 lifers whose cases were presented to him by the California Board of Parole Hearings (Board). During the first 2½ years he was in office, more lifers were released from prison than during the previous three gubernatorial administrations combined.

Governor Brown has reversed the Board’s recommendations less than 20% of the time compared to his predecessor, Arnold Schwarzenegger, whose reversal rate hovered at 70%. Former Governor Gray Davis reversed most of the Board’s decisions, granting parole to less than one in 10 lifers whose files crossed his desk. The consequence of such a tough-on-parole stance was a dramatic increase in the number of life-sentenced prisoners. As of ...

Settlement in California Jail Suit Includes $4.8 Million in Attorney Fees, Costs

After four prisoners committed suicide in the Salinas branch of the Monterey County, California jail system within a five-year period, a class-action lawsuit was filed in 2013 against both the jail and California Forensic Medical Group, alleging substandard intake procedures, medical care and mental health treatment.

Shortly after an injunction ...

2015 Annual Anti-Private Prison Awards Announced

On March 1, 2016, the Private Corrections Institute (PCI), a non-profit citizen watchdog organization, announced its 2015 awardees for individual activism, organizational advocacy and excellence in news reporting related to the private prison industry. PCI opposes the privatization of correctional services, including the operation of prisons, jails and other detention facilities by for-profit companies such as Corrections Corporation of America (CCA) and The GEO Group, both of which trade on the New York Stock Exchange.

PCI’s 2015 award for excellence in news reporting on the private prison industry went to Jerry Mitchell, a reporter with The Clarion-Ledger in Jackson, Mississippi, for multiple articles regarding conditions, violence and abuses at for-profit prisons in Mississippi. He also covered the indictments filed against former MS DOC Commissioner Christopher Epps, who took bribes from private prison firms and their consultants. The recipient of a MacArthur Foundation “genius grant,” Jerry previously broke stories that resulted in the prosecution of Civil Rights era murders; he has received numerous other honors and was a Pulitzer finalist.

“This award belongs to the staff of The Clarion-Ledger and especially my boss, Assistant Managing Editor Debbie Skipper, who worked not only with our staff, but with freelancers as well, in ...

Texas Parole Records Mistake Could Cost Taxpayers Millions

Prisoners in Texas and their families are still feeling the impact of a botched Texas Department of Criminal Justice (TDCJ) policy change in 2012 that led to the destruction of documents for some 86,000 parole-eligible prisoners, whose files were incomplete when reviewed by the Texas Board of Pardons and Paroles. The snafu led to the shredding of letters of support and other records that could have persuaded the board to grant parole to affected prisoners.

When the mistake finally came to light in 2013, the TDCJ spent around $160,000 to correct it by replacing the shredded documents, even though the parole board never initiated a review to determine whether any prisoners had been adversely impacted by the mix-up.

In August 2012, the TDCJ attempted to streamline the way it handled parole paperwork for the 150,000 prisoners in the state’s prison system. Described as a “department largely stuck in the past,” orders came down for administrators to stop filing paper copies of the thousands of documents placed in prisoners’ parole files each month, and to instead file them electronically.

“It made absolutely no sense for us to do this,” recalled state employee Brenda Pisana. It was ...

U.S. Supreme Court Reverses Idaho Supreme Court, Asserts “Federal Supremacy”

Melene James sued the City of Boise and other defendants in Idaho state court in a 42 U.S.C. § 1983 action, alleging assault, battery, false arrest, wrongful imprisonment and other claims against city police officers, but failed to prevail. In § 1983 suits, federal law provides that the court may “allow the prevailing party, other than the United States, a reasonable attorney’s fee,” but only if it is determined after a hearing that “the plaintiff’s action was frivolous, unreasonable, or without foundation.”

On review, the Idaho Supreme Court chose to disregard that provision of law when deciding to award fees to the defendants. That decision was reversed by the U.S. Supreme Court on January 25, 2016.

In its ruling, the Idaho Supreme Court reasoned that “[a]lthough the Supreme Court may have the authority to limit the discretion of lower federal courts, it does not have the authority to limit the discretion of state courts where such limitation is not contained in the statute.” The state Supreme Court awarded attorney fees under 42 U.S.C. § 1988 even though it held no hearing to determine whether or not the suit filed by ...

Prisoners Hang Themselves in Sheriff Joe Arpaio’s Jails at a Rate that Dwarfs Other County Lockups

by Michael Lacey, Phoenix New Times

How many people have died in our sheriff’s jails? On May 4, 2015, I asked a spokesman for Maricopa County, Arizona Sheriff Joe Arpaio for a cadaver count.

It was not an idle question.

Since he was elected sheriff in 1993, county taxpayers have shelled out more than $140 million to litigate – and ultimately settle – claims of brutality by the sheriff’s deputies. Lawsuits charge that the sheriff has cultivated a “culture of cruelty” motivated by Arpaio’s incessant trumpeting that he is America’s toughest lawman.

But even if you could kill and maim the indigent and the lawless for free, do we really want a medieval penal system?

So it is a simple, if morbid, question: How many body bags?

Sheriff Joe Arpaio has refused to answer. His spokesman, Lieutenant Brandon James, said doing the math would take a few weeks.

It’s been six months.

Searching other databases (the Office of the County Medical Examiner’s and the Office of Risk Management’s, as well as the U.S. Department of Justice’s) revealed that close to 160 people have died in Arpaio’s jails.

But that is an estimate, because the truth is that no outside ...

Use of Nutraloaf on the Decline in U.S. Prisons

After decades of using food as a means of discipline, prison officials across the country are increasingly turning away from punitive diets as a response to misbehavior by prisoners.

One food that has been commonly used as punishment is known as “nutraloaf” – a concoction of mashed-together ingredients that are baked into a brick-like loaf designed to meet basic nutritional guidelines, but which is deliberately made with a bland and unappealing flavor. Recipes vary from state to state, but usually include some kind of meat, potatoes, rice, beans and other vegetables or grains. At some facilities, nutraloaf is simply leftovers from the day’s meals dumped into a blender and then cooked.

Historically, the use of such punitive diets has been limited to disciplinary units, Special Housing Units and other segregation cells. For the most part, prisoners receive nutraloaf or similar meals in response to food-related misconduct, such as throwing food at guards, though in some facilities nutraloaf can be imposed for a wide variety of disciplinary and security management reasons.

Using food as punishment has been a practice in American prisons since the 19th century, when bread and water diets were a common tool for making prisoners behave. In the ...

New Federal Law that Brands Sex Offenders’ Passports Faces Court Challenge


First it was the so-called “War on Drugs,” complete with military-themed anti-drug task forces and disproportionately long prison sentences primarily reserved for poor people of color, which had little impact on U.S. drug consumption. Now it appears that war is being supplanted by an offensive against sex offenders.

A new federal statute, the “International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders,” or IML, was recently signed into law by President Obama. The legislation requires that U.S. passports must designate when the passport holder has been convicted of a sex offense. However, prisoners’ rights advocates are already filing legal challenges to what they argue is persecution of sex offenders who have completed their prison sentences.

One of those groups, Reform Sex Offender Laws, Inc. (RSOL), said it was unfortunate that for the first time in the history of the United States, the passports of a class of American citizens will be “branded.”

“The citizens of this nation should be afraid, very afraid, that a unique identifier will soon be added to their passports,” according to RSOL spokesperson Brenda Jones. “Who will be the next ...

$11.3 Million Jury Award for Former Colorado Jail Prisoner

A federal jury awarded a former Jefferson County Detention Center prisoner more than $11 million against the sheriff and the jail’s privately-contracted medical provider, Correctional Healthcare Companies (CHC) – now Correct Care Solutions – after he was denied medical treatment for at least 16 hours despite obvious signs of a ...

Lifetime Registration of Low-level Sex Offenders found Excessive, Unconstitutional in New Hampshire

The New Hampshire Supreme Court held in February 2015 that requiring lifetime registration without review of the risk that low-level sex offenders present to the public is unconstitutional. The Court ordered that such offenders must be provided an initial risk hearing and periodic opportunities for further hearings if they are initially found to pose a risk.

The petitioner, John Doe, was convicted in 1987 of two counts of aggravated felonious sexual assault. He served a prison sentence, completed sex counseling and was released from probation in 1990. He became subject to registration as a sex offender on January 1, 1994, but did not become aware of that requirement until 2004.

After he registered, he endured the stigma and repercussions that accompany being on the sex offender registry. Neighbors of his son petitioned the landlord to prevent Doe from moving in with his son, and he was denied public housing. Doe sought a declaratory judgment that the registration law was unconstitutional as applied to him because it violated the ex post facto and due process clauses. The trial court denied his petition.

In an appeal in which PLN joined in an amicus brief, Doe pressed his claims. The state Supreme Court ...

Texas Disciplinary Appeals Board Upholds Disbarment of State Prosecutor

On February 8, 2016, the Texas Board of Disciplinary Appeals, appointed by the state Supreme Court, upheld the disbarment of former prosecutor Charles J. Sebesta, Jr. for using tainted testimony and false statements to obtain a death sentence against now-exonerated former prisoner Anthony Graves. Graves served 18 years in prison, including a dozen years on death row, before a special prosecutor determined in 2010 that there was no credible evidence he had been involved in setting a fire that killed six people. [See: PLN, June 2012, p.16; April 2012, p.22].

Graves had actively sought to have Sebesta disbarred and filed a grievance with the Texas State Bar in January 2014. Over a year later, the organization’s Office of Disciplinary Counsel found “just cause” to hold a disciplinary hearing on ethics violations.

Sebesta, who was initially disbarred by a three-member evidentiary panel on June 11, 2015 following a four-day hearing, vigorously maintained on appeal that he was being unfairly treated and that Graves’ conviction was just.

“In rejecting Sebesta’s argument, the Board of Disciplinary Appeals found that Charles Sebesta’s misconduct was so egregious that they characterized him as having ‘unclean hands.’ That certainly is a fitting description,” ...

Deaths of Prisoners in Indiana, California and Arkansas Linked to Flu Virus

A winter outbreak of the H1N1 flu virus is being blamed for the death of one prisoner and sickening 40 others, including five staff members, at the Putnamville Correctional Facility in Greencastle, Indiana in January 2016. Some of the prisoners were in serious enough condition to require hospitalization at the nearby Terre Haute Regional Hospital. And while prison officials defended their response to the outbreak, prisoners’ family members were critical.

“I don’t think the response has been very good because I’ve tried to personally contact them and I was constantly given the run around,” Rhonda Williams told reporters for WISH-TV. Williams said her son, who was serving time at the Putnamville facility, was only offered a flu shot after he was already sick.

The TV station reported that other family members had come forward to complain the prison was dirty and that protective masks were provided only to prisoners who were also already ill.

Prison Superintendent Brian Smith told reporters at a January 26, 2016 news conference that the outbreak of H1N1 – a strain of swine flu – began on January 16, but that prison staff were not made aware of the incident until one day before a ...

$360,000 Verdict Against Indiana Sheriff for Denying Prompt Court Hearings

An Indiana federal court awarded nearly $360,000 in a class-action lawsuit alleging the Allen County Sheriff’s Office violated arrestees’ due process rights by failing to bring them before a court within 48 hours.

The class consisted of 962 people who had been arrested on a weekend. According to the ...

California Supreme Court Voids Ex Post Facto Sex Offender Residency Restrictions

Proposition 83, passed in 2006 by California voters and popularly known as Jessica’s Law, had the stated aim of protecting children from sex offenders. It was later codified at Pen. Code § 3003.5(b), but on March 2, 2015 the California Supreme Court struck down those parts of the law that restrict people convicted of sex crimes prior to Prop 83’s enactment from finding suitable housing after their release from custody. The law prohibited certain sex offenders, as defined by statute, from residing within 2,000 feet of any public or private school or park where children might congregate.

Prisoners’ rights advocates had argued that the restrictions prevented many people who had been convicted prior to the law’s enactment from residing in other than marginal areas, and violated the constitutional prohibition against ex post facto laws. The Supreme Court agreed, finding the law unconstitutional as applied to registered sex offenders on parole in San Diego County, where the suit was initially brought. The Court’s opinion noted that along with difficulty finding housing, parolees had experienced problems securing employment, medical care and other social services such as substance abuse treatment.

The California Department of Corrections and Rehabilitation (CDCR) had begun ...

Exonerated New York Prisoner Recovers $21.9 Million in Damages

An exonerated former New York prisoner received $21.9 million as a result of settlements and a jury verdict in a federal lawsuit claiming that law enforcement officials were responsible for his wrongful convictions for rape and homicide.

Jeffrey Deskovic, 16, was arrested in January 1990 for the murder of ...

California: Strip Searches of Prison Visitors No Longer Allowed

After just over a year of increased scrutiny for prison visitors, presumably to stem the flow of drugs and other contraband into California’s 35 state correctional facilities, prison officials announced in January 2016 that they would end the controversial practice of strip searching visitors who fail preliminary drug screens.

In November 2014, California’s prison system rolled out a program that placed drug-sniffing dogs and ion scanners at eleven facilities, to conduct random drug screens of visitors and employees. Funded by a $5.2 million grant for the airport-style scanners in addition to a pre-existing $3 million K9 program, the initiative imposed increasingly severe sanctions on visitors who failed drug dog screens or ion scans – including strip searches and loss of visits.

On January 11, 2016, California Department of Corrections and Rehabilitation (CDCR) spokeswoman Dana Simas said that pursuant to revised regulations, visitors will be screened by non-threatening drug alert dogs that sit when they detect contraband or by the use of ion scanner technology. Visitors who raise alerts will be subjected to clothed searches and forfeit a contact visit, whether or not drugs are found. If the search is refused, the visit will be canceled. For a second refusal ...

$2.5 Million Award for Wrongfully Convicted Former Michigan Prisoner

An exonerated Michigan man will receive $2.5 million for his almost 26 years of wrongful incarceration. He was released from prison after it was discovered that Detroit police had tainted the victim’s identification and withheld exculpatory evidence.

Walter Swift was 21 when he was arrested on September 16, 1982 ...

Ninth Circuit Rules Judge “Abused Discretion” in Imposing Abstinence as Supervised Release Condition

Raymond Leo Jarlik Bell, convicted of filing false income tax returns to obtain fraudulent refunds, appealed his 97-month federal prison sentence on three grounds, including whether the judge committed Sixth Amendment error by failing to prompt him to present a closing argument; whether the government presented sufficient evidence to prove its case; and whether he could be ordered to abstain from alcohol and drug use, and enroll in substance abuse treatment, as a condition of his three-year term of supervised release.

Bell, who acted as his own attorney at trial and apparently subscribed to some variation of the “sovereign citizen” movement, failed to present a closing argument and did not preserve that issue for appeal. He argued that the district court judge’s failure to prompt him to make a closing argument violated his rights under the Sixth Amendment, but the appellate court found no “plain error” and held the judge was under no obligation to do so.

Bell’s assertion that the government had failed to present evidence sufficient to convict him of filing fraudulent tax returns was also unsuccessful, as the Ninth Circuit found that “a rational jury could find beyond a reasonable doubt that Bell assisted [his son] Steven ...

Seventh Circuit Reverses Dismissal of Terre Haute Prisoner’s FTCA Suit

Federal prisoner Charles D. Keller filed a lawsuit under the Federal Tort Claims Act (FTCA) against prison officials at the U.S. Penitentiary in Terre Haute, Indiana, seeking damages after he was assaulted by another prisoner. Despite his history of mental illness that affected his ability to function and defend himself, Keller was placed in the prison’s general population where he was attacked. The brutal beating lasted several minutes and left him unconscious.

Keller filed suit, alleging negligence on the part of prison guards for “violat[ing]mandatory regulations and orders governing their conduct, thus allowing the attack to occur and continue.” He also claimed that prison psychologist Joseph Bleier “did not examine all of his available medical documents before deciding to release him into the general prison population, as required by applicable regulations.”

According to the Seventh Circuit, citing 28 U.S.C. § 1346(b)(1) and 28 U.S.C. § 2674, “prisoners can sue under the FTCA to recover damages from the United States Government for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee.” [See: PLN, March 2014, p.44].

The district court ...

Sixth Circuit Allows Revival of Untimely Habeas Appeal Using Rule 60(b)

The Sixth Circuit allowed a prisoner to revive the appeal of her federal habeas corpus action in the interests of justice after she won a civil rights lawsuit against prison guards who prevented her from filing a timely notice of appeal a decade earlier.

Hattie Tanner, a Michigan state prisoner who described herself as “functionally illiterate,” was convicted of felony murder and sentenced to life without parole in 1995. She appealed and a state appellate court overturned her conviction based on a violation of her constitutional rights due to the state’s failure to provide her with DNA and serology experts. That reversal was itself later reversed by the Supreme Court of Michigan.

Unaided by an attorney, Tanner then drafted and filed a federal petition for writ of habeas corpus, which the district court dismissed on its merits on November 8, 2005. Following the dismissal, Tanner sought the assistance of a prison legal aide. The other prisoner helped Tanner request a certified copy of her prison trust account activity, which was needed to appeal in forma pauperis. The prison did not release the document until three days prior to the 30-day deadline for filing the notice of appeal. The legal ...

$550,000 Jury Award for Failure to Treat Prisoner’s Broken Jaw

The First Circuit Court of Appeals found that a Massachusetts federal district court improperly weighed the evidence when granting summary judgment to the defendants in a prisoner’s civil rights suit alleging nurses at the Bristol House of Correction failed to treat his serious medical condition.

Shortly after being booked into ...

Defense Verdict in Kentucky Prisoner’s Death; Appellate Court Reverses

A Kentucky state jury found for the defendants in a lawsuit alleging a jail guard and nurse failed to monitor and treat a pretrial detainee’s serious medical condition, resulting in her death. Recently, however, the Court of Appeals reversed and remanded for a new trial.

Melissa Czaja, 34, was arrested for an outstanding warrant on a traffic violation on July 26, 2012, and booked into the Bullitt County Jail with a $34 bond. She was placed in a common cell with other detainees. One of her family members arrived at the jail shortly thereafter with $35 to post bond, but officials required exact change.

Upset that she had not been released, Czaja pressed the cell’s buzzer several times. Guard Laura Worman, who was nicknamed “Shrek” and reportedly known to be oppressive, responded. A confrontation ensued, resulting in Czaja calling Worman a “bitch.” In turn, Worman claimed that Czaja attacked her, lodged a charge of assault on a detention officer and placed Czaja in solitary confinement. Witnesses testified that Worman was the aggressor.

The assault charge prevented the family member from posting bond when they arrived with $34, as the new charge had increased the bond amount. On her fifth ...

Kentucky Restores Voting Rights for Former Prisoners, then Reverses Course

On November 24, 2015, two weeks before the end of his term, Kentucky Governor Steve Beshear signed an executive order that restored the right to vote to certain convicted felons. Less than a month later, on December 22, incoming governor Matt Bevin overturned that order on the grounds that it violated the state’s constitution. The government giveth and the government taketh away.

Kentucky is one of only a few states that do not automatically restore voting rights to those with criminal convictions after they have completed their sentences, and an estimated 140,000 Kentuckians do not have the right to vote. Governor Bevin’s move puts Kentucky back on the short list of states that largely ban ex-felons from voting. Most states have some form of voting restrictions due to felony convictions; some don’t let parolees or probationers vote, while 10 states limit voting even after a prison sentence has been fully served. Only Maine and Vermont do not disenfranchise people with criminal records, who can vote even while incarcerated.

Although ex-felons in Kentucky who completed the voting restoration process before Beshear left office will be able to retain their voting rights, all other convicted felons must individually appeal to the ...

Prison’s Censorship of Newsweek Upheld

The Eighth Circuit Court of Appeals affirmed a grant of summary judgment to prison officials in a First Amendment challenge to the censorship of a magazine because it contained an article that reported violence and disorder in Mexico involving drug cartels.

Missouri prisoner Joseph Murchison had subscribed to Newsweek for many years. He received most issues without incident, but staff at the South Central Correctional Center censored the October 11, 2010 issue on the grounds that it “promotes violence, disorder, or the violation of state or federal law including inflammatory material” due to three pages that contained the article on Mexican drug-related violence. Murchison filed suit and the district court granted summary judgment to the defendants.

On appeal, the Eighth Circuit found the article “Hiding Behind the Web” focused on and depicted “disorder, violence, and the violation of law.” The article described attacks by drug cartels against the Mexican government and military. Additionally, it contained a photograph of two people hanging from a bridge and another of a journalist lying on a street in a pool of blood.

“Although the material, on its face, may not necessarily explicitly advocate for violence or the violation of law, this does not ...

Lawsuits Challenge Release Debit Cards; Courts Rule Against Arbitration

Robert Regan, 67, was carrying $764 when he was arrested on a warrant in Rockdale County, Georgia. Upon his release from jail, instead of receiving cash or a check for the money seized during his arrest, he had no choice but to accept a debit card. Regan objected to the card’s numerous fees, which he had to pay to recover his own money, but when he sued the defendants attempted to dismiss his complaint by enforcing an arbitration clause to which he had never consented.

The federal district court agreed with Regan that the debit card’s arbitration clause was unenforceable, and that his lawsuit could proceed. That decision has ramifications for other prisoners forced to accept fee-laden debit cards at the time of their release.

The defendants, including Stored Value Cards, Inc., argued that the Federal Arbitration Act should apply, which required Regan to submit to arbitration in lieu of a lawsuit. They also noted that he had received written notification of the fees in a Cardholder Agreement included in his release papers. Regan established, however, that he had never signed any agreement assenting to the debit card fees or arbitration.

The district court noted in its January 13, 2015 ...

Texas: $400,000 Settlement Award to Mentally Ill Jail Prisoner

On June 2, 2015, the Harris County Commissioners Court awarded $400,000 to Terry Goodwin, a mentally ill prisoner, to settle a civil lawsuit stemming from his extreme neglect while housed at the Harris County Jail in Houston.

“I have never seen anything like this in my 41 years as a lawyer,” attorney Jim Harrington stated shortly before the settlement was announced. “This is just unbelievable.”

Harrington, executive director of the Texas Civil Rights Project, was reacting to revelations that medical staff at the Harris County Jail were aware of the filthy conditions of the cell that Goodwin was left in for weeks. Goodwin’s case was brought to light by whistleblowers who contacted the news media with photos of Goodwin’s cell, which was filled with trash, feces and swarms of insects.

When Dr. Michael Seale, director of health services at the jail, was questioned following a press conference, he admitted that his medical staff knew about the squalor in Goodwin’s cell. “They documented it in the medical records,” he said. “They followed policy and procedure.” No medical staff were disciplined, and Seale refused to describe the incident as a communications breakdown.

Six jailers were fired and ...

The Will of the People: Ex-prisoners Voted into Public Office

What happens when voters elect a public official once deemed a public threat by the criminal justice system? From Connecticut to Virginia, Michigan to New Hampshire and Oregon to Oklahoma – just a few of the places where former prisoners have been voted into office – it’s politics as usual.

After serving seven years in prison on charges that included bribery, racketeering and extortion for awarding city contracts in return for hundreds of thousands of dollars in gifts, including cash, home improvements, custom-made clothes and expensive wine, former mayor Joe Ganim was given a second chance by the voters of Bridgeport, Connecticut, who reelected him mayor on November 4, 2015 with 59% of the vote. He had been released from prison five years earlier.

“Tonight, we not only made history, but we defined a new course for this great city,” Ganim said in his victory speech as he was surrounded by supporters. “Of course, there’s an element of redemption in all of this,” he added.

Ganim’s election even brought a congratulatory message from Connecticut’s governor, who had refused to endorse his fellow Democrat during the campaign.

In Virginia, former state House Delegate Joe Morrissey gained notoriety when he ...

Ninth Circuit: Improper ICE Detainer Constitutes Article III Injury

The Ninth Circuit Court of Appeals reversed a district court’s dismissal of a false imprisonment suit based upon an improper immigration detainer, as the district court incorrectly held that it lacked Article III standing.

In June 2007, Bernardo Mendia was arrested on several California state charges. The court granted bail but Mendia needed the assistance of a bondsman to get out.

Before Mendia could make bail, he was interviewed by two agents with Immigration and Customs Enforcement (ICE) – Ching Chang and John M. Garcia. Mendia insisted that he was an American citizen and had a valid U.S. passport, and gave them his Social Security number. He then invoked his Fifth Amendment right to remain silent, directing the agents to speak with his public defender. Agent Garcia became irate and said, “Oh! You don’t want to talk to me? We’ll see if you want to talk when we’re deporting your ass!”

An immigration detainer was immediately lodged against Mendia, falsely declaring that he was an illegal immigrant of Mexican nationality. The detainer blocked Mendia from posting bail. All the bondsmen he contacted “refused to even consider posting a bail ... because of the immigration detainer.”

About six months ...

Transparent Jumpsuit for Prison Transport May Violate Eighth Amendment

The Seventh Circuit Court of Appeals held last year that a prisoner stated a claim when he alleged he was forced to wear a see-through jumpsuit that exposed his genitals and buttocks while being moved from a county jail to prison.

After being convicted and sentenced for violating Illinois’ armed habitual criminal statute, Marshall King was transferred from the Livingston County Jail (LCJ).

Prior to his departure, King claimed he was strip-searched and forced to change into a jumpsuit that visually exposed his genitals and buttocks, as he was not allowed any underwear. The defendants denied the garment was transparent, but admitted it was “less than opaque.”

King’s federal lawsuit alleged Fourth and Eighth Amendment violations. Upon initial screening, the district court held the Eighth Amendment claim could not proceed, but the Fourth Amendment claim could. In response to a summary judgment motion, the court dismissed the latter claim for failure to exhaust administrative remedies at the jail.

On review, the Seventh Circuit held that once King was transferred from LCJ, the jail’s administrative remedy process was no longer available to challenge treatment during the transfer. As such, the failure to exhaust administrative remedies could not be a barrier ...

Privately-operated Texas Prison Rebounds

Despite years of controversy that included sitting vacant for months after it was built and staff members being arrested for smuggling contraband and having sexual relationships with prisoners, the Jack Harwell Detention Center in Waco, Texas has rebounded. It now houses more prisoners, obtained a lower interest rate on the bonds floated to build the jail, and has a recently-extended contract with private prison operator LaSalle Corrections, Inc.

McLennan County commissioners voted on June 2, 2015 to extend LaSalle’s contract for three years. The company’s prior agreement had been scheduled to expire at the end of June 2015.

“We’re glad to extend it with LaSalle because we trust them and they’re good business people,” said County Judge Scott Felton, a member of the McLennan County Public Facility Corporation’s board of directors. “They pay the note payment on the bonds to pay for the jail and they’ve never missed a payment, even without making money.”

Felton said the jail has been losing money steadily since it was built because the prisoner population has not met expectations. The facility has capacity for 816 prisoners, but has housed fewer than 700 at any one time. During November and December of 2014 ...

Delayed Washington Competency Evaluations and Treatment Violate Due Process

“The state has consistently and over a long period of time violated the constitutional rights of the mentally ill – this must stop,” declared a Washington federal district court. “The in-jail wait time” before transferring incompetent criminal defendants to state hospitals “is far beyond any constitutional boundary.”

Washington ...

Sacramento County Settles Former Jail Prisoner’s Lawsuits for $3,800

In February 2015, Sacramento County, California agreed to settle three pro se federal civil rights actions filed by a former Sacramento County jail prisoner alleging theft of his mail, opening of his legal mail outside his presence and failure to provide at least three hours of out-of-cell recreation time per week.

David Allen Thompson, Sr. was incarcerated at the Sacramento County Main Jail for 38 months. During that time, jail staff and officials with the District Attorney’s Office allegedly seized his mail under false pretenses, opened his legal mail outside his presence and denied him out-of-cell recreation for up to sixty days multiple times. Sometimes Thompson received rejection notices for the confiscated mail, sometimes not. The notices he received listed the reasons for seizing his mail as “3-way mail, girls in panties, sexual content, porn photos.” However, none of the letters contained any of those types of content; rather, they were often letters to and from friends or religious volunteers who visited the jail. The notices said the letters had been seized and “forwarded to the D.A.’s office.”

Thompson’s public defender received copies of some of the confiscated letters with the notices confirming they were being ...

Lawsuit Claiming CMUs Lack Due Process on Appeal to D.C. Circuit

The Bureau of Prisons (BOP) first instituted Communication Management Units (CMUs) in 2006 at the federal prison in Terre Haute, Indiana, then added another unit to the supermax in Marion, Illinois in 2008. CMUs were designed to limit and monitor prisoner communication on a punitive scale not previously seen in domestic American prisons. A lawsuit filed by the Center for Constitutional Rights (CCR), Aref v. Holder, argues that “due process [has] been denied at every step, from designation to review” in CMUs, according to CCR staff attorney Alexis Agathocleous.

The suit, filed in April 2010, resulted in the collection of hundreds of documents that showed the BOP never drafted (or published prior to implementation, as required by statute) criteria for placing prisoners in CMUs until 2009. In addition, federal prison officials have inconsistently applied those policies after that date. Discovery by the plaintiffs found that reasons given to prisoners designated to CMUs were incomplete, inaccurate and sometimes false. Some prisoners were incorrectly advised that they could earn their way out of CMU custody after 18 months of good behavior.

Many prisoners’ rights advocates have long felt that CMUs grew out of the federal government’s reaction to the 9-11 terrorist attacks, when ...

Book Review: "Illegal to Legal: Business Success for (ex)Criminals, by R.L. Pelshaw"

Illegal to Legal: Business Success for (ex)Criminals, by R.L. Pelshaw (The Pelshaw Group, 2014). 241 pages, $17.50 paperback

Book review by Christopher Zoukis

Criminal justice reform is an issue that has gained significant political and social traction over the last several years. Modest legislative headway is being made on issues such as the over-criminalization of non-violent drug offenders, prison overcrowding and mass incarceration. Some efforts are being made to lower mandatory minimums and shorten sentences. Retroactive changes made by the U.S. Sentencing Commission have resulted in the recent early release of upwards of 6,000 federal prisoners.

Curiously missing from these laudable efforts to reign in our nation’s out-of-control carceral machine is any meaningful discussion of the resulting increase in former prisoners returning to society. After all, shorter sentences, early releases and other efforts to reduce the prison population necessarily mean a greater number of prisoners becoming ex-prisoners. Given the sad state of the often ineffective and permanently overtaxed reentry preparation system currently in place in most jurisdictions, one may wonder: What will keep these newly-released prisoners from returning to a life of crime?

Enter R.L. Pelshaw and his new book, Illegal to Legal: Business ...

Colson Task Force Report Highlights BOP Issues, Makes Recommendations

According to the Charles Colson Task Force on Federal Corrections, named after the former top advisor to President Richard Nixon who served a stint in federal prison before dedicating his life to prisoner rehabilitation and spiritual growth, “the United States faces a defining moment” and an opportunity to correct the country’s “over-reliance on incarceration.” In a report released in January 2016, the nine-member Task Force, established by Congress in 2014, made six recommendations to correct some of the shortcomings of the federal Bureau of Prisons (BOP).

The BOP currently houses approximately 196,000 prisoners, a number that has declined slightly over the last few years but has experienced a six-fold increase since 1980. The Task Force stated that if the BOP adopts the proposed recommendations, it could cut the prison population by 60,000 and save approximately $5 billion.

First, the Task Force recommended, “At sentencing, the federal system should reserve prison beds for those convicted of the most serious federal crimes.” The Task Force said this goal “cannot be achieved without addressing mandatory minimum drug penalties – the primary driver of BOP overcrowding and unsustainable growth.”

The report noted that “[t]he vast majority of ...

Second Circuit Allows Muslim Prisoners’ Bivens Claims to Proceed

Although Muslim prisoners held at the harsh U.S. military prison in Guantanamo Bay, Cuba have received more publicity, conditions of confinement for prisoners of Middle-Eastern descent in domestic prisons have also been abusive. So abusive, in fact, that the Second Circuit Court of Appeals allowed a lawsuit filed by Muslim prisoners housed at the Metropolitan Detention Center (MDC) in New York to proceed, affirming in part and reversing in part a dismissal of the case by a federal district court.

According to the appellate court, “This case raises a difficult and delicate set of legal issues concerning individuals who were caught up in the post-9/11 investigation even though they were unquestionably never involved in terrorist activity. Plaintiffs are eight male, ‘out of status’ aliens who were arrested on immigration charges and detained following the 9/11 attacks.” [See: PLN, July 2010, p.46].

The plaintiffs alleged that then-Attorney General John Ashcroft, FBI Director Robert Mueller, Immigration and Naturalization Service Director James Ziglar, MDC Warden Dennis Hasty and former MDC Warden James Sherman committed or caused “discriminatory and punitive” acts against them. Most of the plaintiffs were held in detention from three to eight months.

After reviewing the ...

DOJ Settlement to Improve Conditions at Mississippi Juvenile Facility

The U.S. Department of Justice (DOJ) has reached a settlement to address conditions at Mississippi’s Leflore County Juvenile Detention Center (LCJDC). The settlement agreement is the culmination of a DOJ investigation and a March 31, 2011 findings letter from the department concerning security-related issues and living conditions at LCJDC.

The DOJ found numerous areas of deficiency at the juvenile facility, including the use of force and restraints, abuse investigations, suicide prevention and use of solitary confinement. The settlement, approved by the federal district court on June 18, 2015, addresses each of those areas.

To ensure that juvenile offenders’ mental health issues are identified and addressed, LCJDC agreed to administer a screening tool “within no more than three (3) hours of admission.” It will also supply an orientation within eight hours of admission to provide a “clear explanation” of facility rules, how to obtain medical and mental health care, use the grievance system and report abuse.

Further, LCJDC agreed to revamp its classification system to assure juveniles are classified within 24 hours of admission and placed in housing units consistent with their risk level. It will also change its use of force policies and train staff in “conflict management ...

“Fatal Neglect” Report Faults ICE Health Care for Deaths of Detained Immigrants

The American Civil Liberties Union (ACLU), Detention Watch Network (DWN) and National Immigrant Justice Center (NIJC) issued a joint report, “Fatal Neglect: How ICE Ignores Deaths in Detention,” that describes case studies of deficient medical care resulting in the deaths of detained immigrants. The report, released in February 2016, accuses Immigration and Customs Enforcement (ICE) of failing to follow accepted medical practices and even its own revised standards for providing health care to detainees – many of whom are in civil detention awaiting asylum hearings.

According to the report, 56 detainee deaths have occurred in ICE custody during the Obama administration, including six suicides. Federal officials formulated new ICE standards for immigration detention facilities in 2009, then again in 2011. Following the implementation of the 2009 standards, ICE’s Office of Detention Oversight (ODO) began producing detainee death reviews, which were obtained by the ACLU through Freedom of Information Act (FOIA) requests.

The more recent 2011 standards were not in effect at ICE facilities during the time period covered by the joint report. However, even though they are considered “the most thorough standards,” they still “fall short in significant respects compared to the National Commission on Correctional Health Care ...

Ninth Circuit: Freezing Prisoner’s Funds Requires Pre-deprivation Process

Prison officials must provide a pre-deprivation hearing before freezing substantial prisoner assets, the Ninth Circuit Court of Appeals held on April 6, 2015.

Under Oregon’s “pay-to-stay” law, prisoners are fully liable for their incarceration costs. The Oregon Department of Corrections (ODOC) calculates the incarceration cost by multiplying the daily cost of care by the number of days a prisoner is incarcerated. Cost of care is determined by dividing the ODOC’s budget – excluding some items – by its prisoner population.

Before collecting incarceration costs, prison officials must consider the prisoner’s ability to pay and “need for funds for personal support after release.” OAR 291-203-0040(5). Collection may be waived in “the best interest of the inmate or the department.” OAR 291-203-0080.

Lester Shinault was incarcerated from May 19, 2005 until February 5, 2007, and from October 23, 2008 to August 14, 2009. During his second sentence, Shinault settled a medical product liability lawsuit for $107,416.48.

The suit was unrelated to Shinault’s imprisonment, but ODOC officials quickly took interest after the settlement check was deposited in his prison trust account.

Shinault’s daily incarceration cost was $77.78, before increasing to $83.55 on July 1, 2009. The ...

Pepper-spraying Sleeping Prisoner Unconstitutional, but Case Loses at Trial

The Sixth Circuit Court of Appeals held that “using a chemical agent in an attempt to wake a sleeping prisoner, without apparent necessity and in the absence of mitigating circumstances, violates clearly established law.” The ruling came in an interlocutory appeal filed by a Michigan prison guard.

Prisoner Nicholas Roberson filed a civil rights action alleging that former Sgt. James Torres violated the Eighth Amendment when he sprayed him with a chemical agent on March 13, 2009 while he was sleeping. Torres later issued Roberson a major-misconduct ticket for failure to comply with an order, stating he ordered Roberson to back up to the cell door to be placed in restraints.

Roberson claimed he didn’t hear the order because he was asleep and covered by a blanket. Torres then sprayed a chemical agent into the cell. The district court denied Torres’ claim of qualified immunity, finding a genuine issue of fact existed as to whether Roberson was sleeping at the time he was sprayed, which would constitute excessive force.

After finding it had jurisdiction to review the case, the Sixth Circuit considered Torres’ argument that any factual findings by a prison hearing officer in a major-misconduct hearing are to ...

Architects’ Ethics Panel to Consider Boycott of Execution Chambers and Prison Design

by David Reutter

An advocacy group composed of architects, building designers and planners is hailing a decision by the National Ethics Council of the American Institute of Architects (AIA) to reconsider a proposal to prohibit its members from designing “execution chambers and spaces intended for torture or cruel, inhuman, or degrading treatment.”

The decision marked a significant reversal of the AIA’s position on the issue of building and designing execution chambers and facilities that hold prisoners in solitary confinement. The organization’s Board of Directors had outright rejected the proposal as recently as 2014, and the decision to reconsider means the AIA National Ethics Council will review the proposal for the first time.

“We salute AIA’s 2015 and 2016 Presidents for taking another look at this vitally important issue,” said the Architects/Designers/Planners for Social Responsibility (ADPSR) in a February 24, 2016 statement.

In a letter to the ADPSR in late October 2015, the president of the AIA announced the organization’s intent to reconsider the proposal.

“In the letter, President Elizabeth Chu Richter informed us that the AIA’s National Ethics Council will be considering our ethics proposal as well as other public statements that AIA could make in ...

Deaf Prisoners Win Important Settlements in Kentucky and Maryland

Deaf and hard of hearing prisoners have been doubly punished in many prisons and jails, their disability often not only limiting their access to programs, services and communication with the outside world, but also putting them at risk of physical harm and unnecessary discipline due to their inability to hear ...

$3.5 Million for South Carolina Prisoner’s Death Due to Deliberate Indifference

The estate of a prisoner who died as a result of complications from medical ailments that went untreated at South Carolina’s Hill-Finklea Detention Center (HFDC) received $3.5 million from a settlement and jury verdict.

David Allan Woods, 50, was serving a 60-day sentence at HFDC. He had long-term medical problems prior to his incarceration, and submitted numerous requests for medical care between October 12 and November 5, 2010. Those requests were ignored.

Sgt. Priscilla Garrett and PFC Ashley A. Harber found Woods sick in his cell on November 5, and escorted him to a video-monitored observation cell. Once there, his condition deteriorated rapidly. Guards ignored Woods and never called a nurse as he lay on the floor, barely conscious and repeatedly defecating on himself over the weekend.

On November 7, Sgt. Garrett reportedly told her replacement, Sgt. Richard T. Burkholder, to call the nurse. He failed to do so. Thirty minutes later another guard wrote an incident report, stating Woods was very sick. When Garrett came back on duty Sunday night, she learned that Burkholder had failed to call for medical care for Woods, but took no action herself, the estate alleged.

A nurse finally became aware of Woods’ ...

Tennessee Prisoner Awarded $60,000 for Guards’ Use of Excessive Force

A Tennessee federal jury awarded $60,000 to a prisoner after finding three guards at the Riverbend Maximum Security Institution (RMSI) in Nashville had used excessive force.

The verdict found that prison guards Joshua McCall, Gaelen Doss and Sean Stewart used excessive force on former prisoner Todd Lee White while ...

Report Finds Shortcomings at Santa Clara County, California Jail

A report prepared by a San Francisco law firm following interviews with 944 prisoners and 33 staff members at the Santa Clara County Jail found numerous complaints of both physical and verbal abuse, uneven enforcement of rules, harassment and a grievance system that fails to recognize prisoners’ legitimate complaints.

According to the report, jail guards often use excessive force “in routine jail movements and lockdowns.” The prisoners who were interviewed “emphasized that officers’ use of force does not always stop when an emergency ends; physical violence and pepper spray often continue even after an inmate is fully restrained and no longer a threat to anyone’s safety.”

Twenty-seven percent of the prisoners and three to four percent of staff at the jail responded to a survey distributed by the law firm of Moscone, Emblidge & Otis in January and February 2016. The survey and interviews were conducted for a Blue Ribbon Commission appointed by the county to examine conditions at the jail, the year after three guards were charged with killing a mentally ill prisoner.

The law firm did its best to speak with prisoners in a confidential setting, one-on-one, but many said they were discouraged by guards from ...

Failure to Timely Assert Affirmative Defense in Responsive Pleading Constitutes Waiver

The Sixth Circuit Court of Appeals held on April 8, 2015 that an Ohio federal district court did not abuse its discretion by finding prison officials had waived their qualified immunity defense in a prisoner’s civil rights action.

The lawsuit was filed by John Henricks, incarcerated at Ohio’s Pickaway Correctional Institution, and included claims against Dr. Ida Gonzalez and guard Michael Maynard.

Henricks began to experience symptoms of acute appendicitis on August 19, 2006. Gonzalez ordered him to be taken to a hospital. At the emergency room, Maynard refused to heed the doctor’s request for the removal of Henricks’ handcuffs and other restraints.

A 45-minute argument ensued before Maynard finally removed the restraints and Henricks was taken in for emergency surgery. The surgery, which Henricks alleged was made more extensive by Maynard’s delay in removing the restraints, caused nerve damage to Henricks’ right leg.

The claims against Gonzalez arose from her “consistent refusal to prescribe a medication called Neurontin for the pain caused by the nerve damage, in spite of the view of several other doctors, including specialists, that Neurontin was necessary to treat Henricks’ pain.” Instead she prescribed Motrin, which was not effective and caused him to suffer ...

Court’s Gag Order in Michigan Jail Corruption Case Reversed

In March 2015, the Michigan Supreme Court concluded that a gag order entered in criminal proceedings against Wayne County officials charged with corruption in a jail building project must be reviewed.

Following an audit into the jail project that cost Wayne County taxpayers tens of millions of dollars, an auditor found evidence of corruption. Then-Auditor General Willie Mayo, upon forwarding his findings to prosecutor Kym Worthy, was informed that disclosure of his findings to anyone, including the county commissioners who ordered the audit, could result in obstruction of justice charges.

Once charges of willful neglect of duty and misconduct in office were filed against Carla Sledge, the county’s Chief Financial Officer, and Steven M. Collins, a top county attorney, Wayne County District Judge Vonda Evans issued a gag order. That September 30, 2014 order barred “all potential trial participants” from speaking publicly about the case.

The Detroit Free Press challenged the order. The Michigan Court of Appeals denied the newspaper’s appeal, saying the gag order was not an “impermissible prior restraint” and “placed no direct restraint of any kind on the Free Press.”

While the appellate court found the phrase “all potential trial participants” conceivably implicated First Amendment rights ...

$2.5 Million Settlement in North Carolina Prisoner’s Dehydration Death

The North Carolina Department of Public Safety (NCDPS) agreed to pay $2.5 million to the family of a mentally ill prisoner who died after spending 35 days in an isolation cell.

Michael Anthony Kerr’s death in 2014 occurred during a transport from the Alexander Correctional Institution (ACI) to Central ...

Federal Lawsuit Claims Negligence Caused Pennsylvania Prisoner’s Heroin Overdose Death

A federal lawsuit alleges that officials at the Schuylkill County Prison in Pennsylvania were negligent in the 2013 death of a prisoner from an accidental drug overdose. The suit, filed on March 24, 2015, came almost a year after the findings of a coroner’s inquest which determined that negligence did, in fact, play a role in the death of Matthew Konscler, five days after his 21st birthday and four days after he reported to the facility to begin serving a three-to-18 month sentence for possession with intent to deliver and possession of drug paraphernalia.

Konscler’s mother, Sherry Konscler, filed the suit in U.S. District Court for the Middle District against Schuylkill County, the county prison board and warden Eugene Berdanier, as well as the prison’s private healthcare provider, PrimeCare Medical, nine medical assistants and nurses, three unidentified prison guards and guard Robert Murton, who discovered Konscler unresponsive in his cell. The suit seeks at least $150,000 in compensatory damages plus punitive damages, attorney fees and costs.

Konscler had reported to the county prison on March 27, 2013 to begin serving his sentence. During the intake screening, he admitted to prison medical personnel that he was a heavy user ...

Irish High Court Bars Extradition of Terror Suspect to U.S., Citing Inhumanity of Solitary Confinement

The High Court of Ireland has declined to extradite a terrorism suspect to the United States to face justice, quashing an extradition request filed by American officials. Ali Charaf Damache, born in Algeria but a 15-year resident of Ireland and an Irish citizen, was accused of engaging in terrorist activities by the U.S. government – activities that allegedly involved recruiting U.S. citizens, including Colleen LaRose.

LaRose, who had already been arrested by U.S. authorities, implicated Damache. He had been in custody in Ireland for five years, which included serving three years of a four-year sentence for making a menacing phone call to a U.S. Muslim activist in 2010.

The refusal to extradite by the Irish High Court followed a contrary 2012 decision by the European Court of Human Rights (ECHR) in Babar Ahmad and Others v. The United Kingdom, which rejected the defendants’ argument that they faced incarceration in solitary confinement at the ADX supermax facility in Florence, Colorado. [See: PLN, April 2011, p.44]. The ECHR’s ruling was criticized by many prisoners’ rights advocates, who argued that the U.S. government had misrepresented conditions of confinement for terrorism suspects at the ADX.

However, in yet ...

Medical Marijuana Use by Arizona Probationer Cannot Support Violation

The Arizona Supreme Court held on April 7, 2015 that “any probation term that threatens to revoke probation for medical marijuana use that complies with the terms of AMMA [the Arizona Medical Marijuana Act] is unenforceable and illegal under AMMA.”

Before the Court was an appellate ruling that reversed a condition of probation imposing a “no marijuana” restriction. Keenan Reed-Kaliher pleaded guilty to possession of marijuana for sale and attempted possession of a narcotic drug for sale. He received a split sentence of prison and probation, which required him to “obey all laws.”

Following his release from prison, Reed-Kaliher received a registry identification card from the Arizona Department of Health Services that identified him as a “registered qualifying patient” under the AMMA to receive marijuana for chronic pain from a fractured hip.

The Arizona Supreme Court found the AMMA includes an immunity provision that protects marijuana users from being “subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege...,” as long as their use or possession complies with the terms of the law. The Court held that provision does not exclude probationers, and that compliance with the AMMA prohibits probation conditions ...

News in Brief

Arizona: On October 28, 2015, Maricopa County youth detention guard Patrice Dawson was arrested on felony charges of sexual misconduct. Dawson, who supervised juvenile offenders, was accused of having sexual relations with an underage prisoner; she was fired from the department after confessing to the relationship. In a statement, Arizona Department of Juvenile Corrections officials said they “take the safety of our youth very seriously and enforce a zero tolerance policy for misconduct.”

Brazil: Around 40 prisoners fled from the Frei Damião de Bozanno jail in Recife after a bomb exploded and ripped a gaping hole in the external wall of the compound on January 25, 2016. Two escapees were killed and all but one of the others were quickly captured. The bold escape was caught on surveillance video footage, which showed a desperate surge of prisoners scaling a razor wire fence and running into the streets. A second mass breakout occurred earlier in the week in the same area, when 53 prisoners fled from the Professor Barreto Campelo prison near Recife.

California: Richard Alex Williams was acquitted of first-degree murder and attempted murder charges on November 2, 2015, but state prison and Sacramento County jail officials refused to ...


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