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Prison Legal News: August, 2017

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Volume 28, Number 8

In this issue:

  1. Policing for Profit: Law Enforcement Agencies Abuse Civil Asset Forfeiture (p 1)
  2. Breaking News: U.S. Attorney General Reinstates Federal Asset Forfeiture Sharing, with Conditions (p 15)
  3. Ohio Closes Prison Farms, Auctions Equipment, Plans to Sell Farmland (p 16)
  4. From the Editor (p 16)
  5. Forced to Endure Extreme Heat, Prisoners are Casualties of Texas’ Climate Denial, Documents Show (p 18)
  6. One of Tennessee’s Most Pristine Rivers Contaminated with Prison Sewage (p 22)
  7. Washington State Mental Health Agency Held in Contempt; $14 Million in Fines Levied (p 22)
  8. Tenth Circuit Remands Two-year Sentence for Federal Probation Violation (p 24)
  9. Suicide at Texas Jail Results in Firings, Lawsuit, Investigation and Legislation (p 24)
  10. Arkansas Prisoner’s Illegal Sentence Remanded Despite Filing Wrong Challenge (p 26)
  11. Supreme Court Lets Prosecutors Off the Hook for Withholding Evidence (p 26)
  12. Texas Prisoner was Emaciated and Sick when Killed by Cellmate (p 27)
  13. PLN Obtains $50,000 Settlement in Tennessee Jail Censorship Suit (p 28)
  14. Eighth Circuit Rejects Qualified Immunity on Inadequate Nutrition Claim (p 28)
  15. First Circuit Allows City to Include Prisoners in Census Counts (p 29)
  16. California Appellate Court Reinstates Prisoner’s Mandamus Action Against CDCR (p 30)
  17. Seventh Circuit Reverses Infraction for Failure to Allow Prisoner to Present Evidence (p 30)
  18. Ninth Circuit: Warden Who Failed to Protect Female Prisoners from Sexual Assault Not Immune from Suit (p 31)
  19. Ninth Circuit Reverses Revocation of Supervised Release Over Blog Post (p 32)
  20. Incarceration Numbers Falling, Especially for Blacks (p 32)
  21. Widespread Abuses at Santa Clara County Jail; Three Guards Convicted of Murder (p 34)
  22. Illinois Prisoner Fatally Shot after Standoff; Hostages File Lawsuit (p 36)
  23. $6,500 Settlement after Ninth Circuit Reverses Summary Judgment in Retaliatory Ad-seg Case (p 36)
  24. South Carolina Appellate Court Upholds Prisoner’s Wage Suit (p 38)
  25. California Lifers with Possibility of Parole Entitled to SOL Tolling (p 38)
  26. Disability Rights Group Slams Mental Health Program at New York State Prison (p 38)
  27. Nevada DOC Moves to End Discrimination against HIV-positive and Disabled Prisoners (p 40)
  28. New York: Police Department Ordered to Produce Police Manual in Parolee Shooting Case (p 41)
  29. California Court Vacates Prison Infraction Charging Prisoner for Refusing Meals (p 42)
  30. Report: “Culture of Racism,” Frequent Use of Force at Northern California Prison (p 42)
  31. Alaska Prisoner Deaths Criticized in Report, Author Becomes New DOC Commissioner (p 44)
  32. Tennessee Sheriff Pleads Guilty to Sexual Misconduct, Excessive Force Charges (p 45)
  33. Fourth Circuit Reverses Judgment in Favor of BOP in Deliberate Indifference Case (p 46)
  34. Illinois: Prison Guards Sued for Fatally Beating, Suffocating Prisoner (p 46)
  35. Ohio Prisoners Build Computers from Spare Parts, Conceal them in Ceiling (p 47)
  36. Private Prison Firms Spend Billions of Taxpayer Dollars Acquiring Other Companies (p 48)
  37. Banks Profit from Loans to Private Prison Industry (p 48)
  38. Dismissal of Personal Injury Claim for Damages from Malfunctioning Jail Gate Upheld (p 49)
  39. Man Smuggles Poison into Jail, Commits Suicide Following Arrest for Failure to Pay Ambulance Bill (p 50)
  40. Fourth Circuit Clarifies Rights of Pretrial Detainees; $35,000 Settlement on Remand (p 50)
  41. United Kingdom: 80% of Prisoners Aspire to be Entrepreneurs, Opportunity Fund Helps (p 51)
  42. Unlikely Criminal Justice Reform: How New York City Reduced Arrests and Slashed Prisoner Populations (p 52)
  43. Tennessee Sheriff Settles Lawsuit over Religious Proselytization (p 53)
  44. Consensual Use of Another Prisoner’s Telephone PIN is Not Oregon ID Theft (p 54)
  45. Seventh Circuit: Medical Deliberate Indifference Case Remanded, Loses at Trial (p 54)
  46. Nebraska Supreme Court Holds Reporter Can’t See Executed Prisoner’s Drawings (p 56)
  47. Seventh Circuit: Two-month Delay in Ordering Biopsy Not Deliberate Indifference (p 56)
  48. Ethics Rule Requiring Post-conviction Disclosure of Exculpatory Evidence Adopted in North Carolina (p 58)
  49. Use of Electronic Monitoring Skyrockets (p 58)
  50. Study Finds Extreme Lack of Gender, Racial/Ethnic Diversity in State Courts (p 60)
  51. Seventh Circuit Reinstates Indiana Prisoner’s Lawsuit, Holds Prison Officials Prevented Him from Pursuing Grievances (p 60)
  52. Florida: Trio of Con Artists Sentenced in Rule 35 Sentence Reduction Scam (p 61)
  53. Fourth Circuit Rules Lawsuit over Inadequate Prison Food Not Barred by Res Judicata (p 62)
  54. Denial of FOIA Request for Complaints Against Immigration Judges Reversed (p 62)
  55. News in Brief (p 63)

Policing for Profit: Law Enforcement Agencies Abuse Civil Asset Forfeiture

by Matt Clarke

While crime may not pay, policing can be very profitable when law enforcement agencies are allowed to seize assets not only from criminals but also people merely suspected of breaking the law. No criminal convictions – or even charges – are needed before property or money can be taken through civil forfeiture. That is because the property itself is “prosecuted” for having been used in a crime or obtained from the proceeds of illicit acts, and the owner has to prove the property is innocent.

The legal precedent for the modern era of civil forfeiture was the U.S. Supreme Court’s decision in Bennis v. Michigan, 516 U.S. 442 (1996). The Court held in Bennis that the innocent owner defense in civil forfeiture cases was not constitutionally required by the due process clause.

Civil forfeiture existed long before that ruling, though, and has a history in maritime law, including piracy and customs enforcement, when the owners of vessels carrying contraband could not be brought before U.S. courts. Instead, law enforcement officials seized the ships and their illegal cargo. Forfeiture of assets due to criminal conduct was traditionally rare and required that the owner of the ...

Breaking News: U.S. Attorney General Reinstates Federal Asset Forfeiture Sharing, with Conditions

by Derek Gilna

As noted in this issue's cover story, due to past abuses, restrictions were placed on the federal equitable sharing program in which state and local law enforcement agencies could partner with federal officials and share the spoils of civil asset forfeitures. The restrictions, implemented in January 2015, limited the ability of federal officials to “adopt” state and local forfeiture actions and benefit from more lenient federal policies over state law.

However, on July 17, 2017, U.S. Attorney General Jeff Sessions ignited a storm of criticism when he announced the relaxation of the restrictions on the Department of Justice’s equitable sharing program, effectively reinstating policies that had been reined in under the Obama administration. During an address to the National District Attorneys Association in Minneapolis, Sessions said, “we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their illegal activity.”

Civil asset forfeiture has been widely criticized since it allows law enforcement officials to seize property without criminal convictions, or in many cases even indictments, and has been used to target innocent property owners.

Even though Sessions claimed that asset forfeitures would be done with “care” and ...

Ohio Closes Prison Farms, Auctions Equipment, Plans to Sell Farmland

by Matt Clarke

On April 13, 2016, Gary Mohr, Director of the Ohio Department of Rehabilitation and Correction (ODRC), announced plans to phase out farming operations at all ten of the state’s prison farms, and sell around 7,000 of the 12,300 acres of prison farmland.

Mohr’s announcement came just a little over a year after the ODRC requested and received $8.9 million from the Ohio General Assembly for improvements at the prison system’s farms. The closures will affect as many as 220 prisoners employed during peak periods; 72 staff positions will also be impacted.

The Ohio Civil Services Employees Association (OCSEA), which represents 30,000 state employees, including those whose positions at ODRC farms will be eliminated, said the closures would affect 56 farm coordinators who are union members.

“Unfortunately, we believe the impetus for this change is purely political,” said union president Christopher Mabe. “It has nothing to do with [ODRC’s] core mission of recidivism or safety. This is about dollars and cents for corporate interests.”

The Ohio prisons operating the farms include Chillicothe (1,809 acres), Mansfield (1,485 acres), Marion (995 acres), Pickaway (1,200 acres) and Southern Correctional Complex (578 acres ...

From the Editor

by Paul Wright

As the summer months wear on we are again reporting on the ongoing outrage of American prisons that are deliberately built without air conditioning in some of the hottest parts of the country. As an article in this issue of PLN notes, the death toll from heat exposure continues to climb in several states, all in the former Confederacy, which built prisons without climate-controlled cell blocks to intentionally subject prisoners to torturous conditions.

What is even more amazing is that in 2017 there is still debate as to whether or not exposing elderly and mentally ill prisoners to fatal heat levels can be considered “cruel and unusual punishment.” Also surprising is that guards are willing to work in such sweltering conditions and don’t consider it a workplace hazard. Even in punitive states like California, the employees are smart enough to avoid working in literal sweatshops even if that means prisoners get to enjoy air conditioning, too.

This issue’s cover story reports on the continuing abuses of civil asset forfeiture, whereby the government seizes money and property it claims may have been involved in criminal activity without actually convicting, or even prosecuting, anyone. While there have been ...

Forced to Endure Extreme Heat, Prisoners are Casualties of Texas’ Climate Denial, Documents Show

by Candice Bernd, Truthout

On a spring day in May, temperatures in Dallas, Texas were already in the 90s. Sunlight glinted off the barbed wire perimeter outside the Hutchins State Jail, located just a mile down the road from Hutchins High School. The first blooms of Castilleja, colloquially known here as “prairie fire,” seemed to set a field across from the prison ablaze.

It was hot outside, but it’s nothing compared to the temperatures inside the Hutchins Unit, one of 79 state-run prison units still lacking air-conditioning in its cellblocks in 2017. Even those temperatures, though, still pale further in comparison with the extreme summer heat wave that broiled the jail on July 28, 2011, pushing the heat index up to about 150 degrees in the cellblocks, according to the state’s own records, and transforming the jail into an oven that slowly baked Hutchins prisoner Larry McCollum alive.

McCollum, a 58-year-old cab driver from the Waco area, was found having convulsions in his top bunk. He was taken to Dallas’ Parkland Hospital, where his body temperature was measured at 109.4 degrees. McCollum, who was incarcerated for writing a bad check, had recently begun serving his 11-month sentence, and ...

One of Tennessee’s Most Pristine Rivers Contaminated with Prison Sewage

by Panagioti Tsolkas

It's a rare case when one state agency penalizes another with more than a slap on the wrist. This year, in a move that surprised local environmentalists, Tennessee joined the growing list of states where environmental agencies have imposed fines against prisons for chronic water quality violations.

When asked about the successful legal complaint that her organization filed, Renee Victoria Hoyos, executive director of the Tennessee Clean Water Network (TCWN), responded, “I’m surprised because it’s hard for the state to enforce on itself, and they don’t like to do that.”

In April 2017, the Tennessee Department of Environment and Conservation (TDEC) fined the state’s Department of Correction more than two years after TCWN filed a lawsuit over repeated sewage spills at the West Tennessee State Penitentiary. The years of well-documented pollution led to almost half-a-million dollars in fines against the state’s prison system.

The facility, located in Lauderdale County, was contaminating the Hatchie River – a waterway that was called “the most scenic and unspoiled in West Tennessee” in a recent USA Today news report about the incident.

But West Tennessee wasn’t the only prison where TDEC found problems. The agency also cited sewage-related issues at ...

Washington State Mental Health Agency Held in Contempt; $14 Million in Fines Levied

by Derek Gilna

The U.S. District Court for the Western District of Washington has held the state’s Department of Social and Health Services (DSHS) in contempt in a class-action lawsuit. The contempt order was entered after the court determined, following extensive fact-finding, that DSHS had failed to follow the ...

Tenth Circuit Remands Two-year Sentence for Federal Probation Violation

by Christopher Zoukis

On October 25, 2016, the Tenth Circuit remanded a case involving a federal probation violation for resentencing due to the improper admission of hearsay testimony from a probation officer.

Tremale Henry was on federal supervised release when he was allegedly involved in two assaults involving dangerous weapons. At his probation revocation hearing, the district court allowed hearsay testimony as to what happened. Henry was revoked and sentenced to 24 months in prison plus six more years of supervised release. He appealed.

The Court of Appeals began its analysis with the general statement that “the usual rules of evidence need not be applied” in revocation hearings. Further, the Court noted that the Tenth Circuit and the U.S. Supreme Court have long allowed hearsay evidence in supervised release revocation hearings.

Turning to Henry’s hearing, the appellate court determined that hearsay statements made by the probation officer which were inconsistent with an eyewitness to the first assault were allowable. The Tenth Circuit held that Henry had an opportunity to confront and cross-examine the eyewitnesses regarding the inconsistencies, satisfying the limited constitutional protections that apply in the probation revocation context.

The Court of Appeals reached the opposite conclusion as to ...

Suicide at Texas Jail Results in Firings, Lawsuit, Investigation and Legislation

by Matt Clarke

On July 10, 2015, Sandra Bland was stopped while driving in Prairie View, Texas. The 28-year-old Illinois native was in the process of moving to Waller County when she was stopped by Texas State Trooper Brian Encinia, allegedly for changing lanes without signaling.

A verbal altercation ensued over whether Bland had to put out the cigarette she was smoking, and Encinia arrested her for allegedly assaulting him. Three days later Bland was found hanging in an isolation cell at a jail operated by the Waller County Sheriff’s Office (WCSO). Her death was ruled a suicide. [See: PLN, Jan. 2017, p.44].

In January 2016, a grand jury indicted Encinia for perjury after a review of his vehicle’s dashboard camera footage showed him reaching into Bland’s vehicle to pull her out and threatening her with a Taser – directly controverting his official report that she cooperated with his request to exit the car on her own before assaulting him. Encinia was fired shortly thereafter, and he and Waller County were sued by Bland’s family.

The county and Encinia’s former employer, the Texas Department of Public Safety, reached a $1.9 million settlement in September 2016. According to attorney ...

Arkansas Prisoner’s Illegal Sentence Remanded Despite Filing Wrong Challenge

In a December 15, 2016 ruling, the Arkansas Supreme Court ordered a trial court to re-sentence a prisoner who was illegally sentenced to an extra 10 years in prison. The Court issued the order even though it dismissed the prisoner’s appeal of his petition for judicial review challenging the illegal sentence.

Cody Ward was convicted of manslaughter, and received 240 months in prison plus a consecutive term of 120 months for a firearms enhancement. Page two of his sentencing order, however, said the total term to be served “for all offenses” was 240 months.

The Arkansas Department of Corrections (ADC) initially calculated Ward’s parole date based on the 240-month total sentence. Later, prison officials changed that date due to the additional 120-month firearms enhancement. Ward filed a grievance arguing that, as a first-time offender, the maximum penalty under Arkansas law for manslaughter was 120 months, plus another 120 months for the firearms enhancement, for a total sentence of 240 months.

Ward filed a petition for judicial review of his sentence and the ADC conceded that the sentencing order was illegal on its face because it exceeded the maximum penalty for a first-time manslaughter conviction. But, the ADC argued – and ...

Supreme Court Lets Prosecutors Off the Hook for Withholding Evidence

by Derek Gilna

In a June 22, 2017 decision, the U.S. Supreme Court declined to punish prosecutors for withholding potentially exculpatory discovery information from defense attorneys at the time of trial. In a case that was widely expected to extend the Brady v. Maryland doctrine, the justices refused to grant relief – preferring instead to dispose of the case based upon whether the evidence was considered “material” under Brady.

Given the broad discretion and power that prosecutors exercise at the local, state and federal levels, and well-documented cases of prosecutorial misconduct that are often reported in Prison Legal News [see: PLN, Nov. 2014, p.1], criminal justice experts had hoped the Supreme Court would take this opportunity to hold them accountable for their ethical lapses. They were unfortunately wrong.

Justice Stephen Breyer, who delivered the opinion of the Court, outlined the issues raised in the case. “In Brady v. Maryland, 373 U.S. 83 (1963), this Court held that the government violates the Constitution’s Due Process Clause ‘if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment.’” Attorneys for seven defendants who sought to overturn their 1985 convictions for kidnapping ...

Texas Prisoner was Emaciated and Sick when Killed by Cellmate

A fight with his cellmate, Joe Greggs, led to the January 19, 2016 death of prisoner Alton Rodgers at the William P. Clements Unit in Texas. An official report listed Rodgers’ fatal injury as trauma consistent with having his head “slammed onto the concrete floor,” and his death was investigated as a homicide.

But why was the 31-year-old prisoner seriously ill when the fight occurred? Rodgers’ family raised that question and others in a $120 million wrongful death suit filed by attorney Jesse Quackenbush in October 2016.

According to Northwest Texas Hospital records, after the altercation with Greggs, Rodgers was admitted to the hospital with hypoglycemia, a urinary tract infection, dehydration, bilateral bronchopneumonia, bed sores indicating prolonged immobility and other medical conditions. He was severely underweight, weighing only 148 pounds while standing 6’7”.

The complaint alleged that Rodgers also suffered from untreated tuberculosis which contributed to his death.

Quackenbush told The Intercept in January 2017, “The purpose of the lawsuit is to change the way [the state of Texas] treats inmates who are suffering very serious diseases.” The case remains pending. See: Rodgers v. Martin, U.S.D.C. (N.D. Tex.), Case No. 2:16-cv-00216-J-BB.

Following Rodgers’ ...

PLN Obtains $50,000 Settlement in Tennessee Jail Censorship Suit

On March 16, 2016, a Tennessee federal district court granted PLN’s motion for a preliminary injunction to protect its Fourteenth Amendment rights from infringement by the Sullivan County Sheriff’s Office. The county subsequently agreed to pay a $50,000 settlement.

PLN’s complaint, filed in October 2013, sought declaratory ...

Eighth Circuit Rejects Qualified Immunity on Inadequate Nutrition Claim

On June 13, 2016, the Eighth Circuit affirmed a district court’s denial of qualified immunity to several defendants on a civilly-committed sex offender’s inadequate nutrition claim.

Thomas Ingrassia was civilly committed to the Missouri Sexual Offender Rehabilitation and Treatment Services (SORTS) facility. He escaped in 2001 and was reapprehended in 2003. [See: PLN, June 2002, p.30].

After serving a prison term for the escape, Ingrassia was returned to SORTS in August 2008 and placed on Total Ward Restriction, which prohibited him from eating in the dining room. The order remained in effect until March 15, 2009.

SORTS staff put Ingrassia on a 2,000 calorie per day diet. However, he often received only 1,200 calories. For unknown reasons, SORTS staff began giving Ingrassia two 300-calorie meal-replacement drinks instead of a regular meal tray; he smashed the drinks in protest, and staff put him on a no-liquids diet.

Shortly after the food restrictions began in August 2009, Ingrassia weighed 165 pounds. Three months later he weighed just 151 pounds.

Ingrassia filed suit, alleging that SORTS staff had denied him adequate nutrition in violation of the Fourteenth Amendment. The defendants moved for summary judgment and asserted a qualified immunity defense ...

First Circuit Allows City to Include Prisoners in Census Counts

by Derek Gilna

The First Circuit Court of Appeals has reversed a district court’s order barring the city of Cranston, Rhode Island from counting the 3,433 prisoners held at the Adult Correctional Institution (ACI), located in that city’s Ward Six, for census purposes.

The plaintiffs in the case, including four local residents and the state ACLU chapter, had argued that inclusion of those prisoners in the census count diluted “the votes of voters in the City’s other five wards in violation of the Equal Protection Clause of the Fourteenth Amendment.”

In granting summary judgment to the plaintiffs, the district court found that “the inmates [at ACI] have no interest in Cranston’s public schools, receive few services from the City, and have no contact with Cranston’s elected officials.”

Citing the U.S. Supreme Court’s decision in Evenwel v. Abbott, 136 S.Ct. 1120 (2016), however, the First Circuit reversed. “The Rhode Island Constitution specifies that state legislative districts ‘shall be constituted on the basis of population and ... shall be as nearly equal in population ... as possible.’ R.I. Const. art. VII, § 1; id. art. VIII, § 1,” the Court of Appeals wrote.

Cranston’s city charter ...

California Appellate Court Reinstates Prisoner’s Mandamus Action Against CDCR

by Derek Gilna

California Department of Corrections and Rehabilitation (CDCR) prisoner Jared M. Villery filed three administrative grievances in 2014 concerning the failure of prison staff to properly discharge their duties. He alleged that staff failed to respond to his written grievances within the required time period, then petitioned for a writ of mandamus.

The CDCR filed objections to the mandamus action, and the state court sustained its objections and dismissed the case. Villery appealed, arguing that mandamus was the proper remedy to compel prison officials to perform their ministerial duties. The CDCR contended that a habeas corpus action was more appropriate, and that mandamus was inappropriate when another action was available.

The California Court of Appeal began its review of the lower court decision by noting that the “question whether a writ of mandate remains available when there is an adequate remedy in the ordinary course of law [has not been] explicitly addressed by the Legislature. In other words, ‘the statute does not expressly forbid the issuance of the writ if another adequate remedy exists.’”

While the state Supreme Court “has addressed the Legislature’s silence on this aspect of mandamus relief by adopting the ‘general rule that the ...

Seventh Circuit Reverses Infraction for Failure to Allow Prisoner to Present Evidence

by Lonnie Burton

On April 19, 2016, a panel of the Seventh Circuit reversed the decision of an Indiana prison hearings officer who had found a state prisoner guilty of possessing heroin. The appellate court held that because the prisoner was prevented from defending against the accusation, his due process rights had been violated.

The case began when Curtis Ellison was incarcerated at the Pendleton Correctional Facility in Indiana. He was given what is known as a screening report, or notice of disciplinary proceeding, alleging that a week earlier heroin had been found during a search of his cell. The report noted that a guard named Bynum had searched Ellison’s cell that day, and heroin was found in cell 10-6D. But Ellison knew the two guards who searched his cell and Bynum was not one of them. Also, Ellison lived in cell 10-5D.

At his hearing, Ellison sought to introduce the testimony of the guards who had searched his cell, asserting they would testify that no contraband was found and “simple human error” led to his being mistakenly charged with the violation. Ellison also asked for guard Bynum to be a witness at the hearing to establish that the cell ...

Ninth Circuit: Warden Who Failed to Protect Female Prisoners from Sexual Assault Not Immune from Suit

by Christopher Zoukis

The Ninth Circuit has ruled that the former warden at the California Institute for Women (CIW) is not immune from liability for failing to protect two female prisoners from repeated sexual abuse at the hands of a prison guard.

Jossie Ramos and Melissa Ortiz were incarcerated at CIW in 2010 when Guillermo Garcia was the warden. Garcia ignored multiple complaints that CIW guard Gary Swatzell was sexually assaulting several female prisoners; he also ignored a lieutenant’s complaint that Swatzell physically assaulted her in retaliation for reporting his misconduct. With Garcia asleep at the wheel, Swatzell continued his sexual exploitation, ultimately impregnating Ramos. He was prosecuted and sentenced to two years in jail. [See: PLN, Sept. 2013, p.56]. Ramos remains in custody but now has a 5-year-old child as a result of Swatzell’s sexual abuse.

Ramos and Ortiz sued Garcia, alleging deliberate indifference to their safety in violation of the Eighth Amendment. The former warden claimed that he should be granted qualified immunity and moved for summary judgment.

The district court denied Garcia’s motion, and the Ninth Circuit affirmed. The appellate court considered whether the facts showed that his conduct violated a constitutional right, and if so ...

Ninth Circuit Reverses Revocation of Supervised Release Over Blog Post

by Christopher Zoukis

The federal government's attempt to restrict a former prisoner’s First Amendment right to free speech has been reversed by the Ninth Circuit Court of Appeals.

Darren Chaker was convicted of a white collar crime related to a bankruptcy filing and sentenced to 15 months in federal prison. As part of his three years of supervised release (i.e., federal probation), he was not allowed to “stalk and/or harass other individuals, to include, but not limited to, posting personal information of others or defaming a person’s character on the internet.”

Chaker’s probation officer alleged he had violated that condition by making a false statement about Leesa Fazal, an investigator with the Nevada Office of the Attorney General. According to Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida, Chaker wrote in an online blog post that Fazal had been “forced out” of the Las Vegas Police Department.

Not pleased by that statement, Fazal complained to the FBI, the Nevada Attorney General and the Las Vegas Police Department, all of which declined to charge Chaker over his comments in the blog post. Fazal then turned to the U.S ...

Incarceration Numbers Falling, Especially for Blacks

by Christopher Zoukis

According to the U.S. Bureau of Justice Statistics (BJS), the imprisonment rate for blacks is declining and has been doing so for many years. But the BJS data also indicates that the trend is headed in the opposite direction when it comes to white incarceration rates.

The change is most pronounced for female offenders, where the incarceration rate for black women has fallen 47 percent since 2000 while the rate for white women has soared 56 percent in the same period.

But the change in male incarceration rates is also remarkable, with the rate for black males dropping 22 percent since 2000, though the rate for white males has increased 4 percent during that time period. Since men make up a far larger share of the prison population than women – about 10 times as large – the incarceration rate for males changes more slowly.

These developments have cut the racial disparity in overall incarceration rates by two-thirds for women and one-quarter for men. Still, both black men and women remain 5.1 times more likely to be incarcerated as whites.

Based on data from the U.S. Census Bureau, there are nearly six times as ...

Widespread Abuses at Santa Clara County Jail; Three Guards Convicted of Murder

by Lonnie Burton

Three guards employed at a jail in Santa Clara County, California, in the Silicon Valley area, were convicted on June 1, 2017 of second-degree murder for the fatal beating of a mentally ill prisoner two years earlier. The charges also resulted in investigations into guards’ conduct as far back as 2013, and publicity surrounding the case spurred former prisoners to come forward with harrowing stories of assaults suffered at the hands of “out-of-control” jail staff.

Guards Jereh Lubrin, 30, Matthew Farris, 28, and Rafael Rodriguez, 28, were convicted of beating prisoner Michael Tyree to death. Tyree, 31, was found naked and lifeless in his jail cell on August 26, 2015; his death was caused by “multiple blunt force injuries,” according to Dr. Joseph O’Hara of the Santa Clara County Medical Examiner-Coroner’s Office. An autopsy revealed that Tyree was struck in the abdomen and sides of his body so severely, his injuries were “equivalent to being hit by a car or falling off a roof.” He had a damaged liver and ruptured spleen. [See: PLN, Jan. 2017, p.48].

The beating was reportedly in response to a verbal altercation that Tyree had with a nurse earlier ...

Illinois Prisoner Fatally Shot after Standoff; Hostages File Lawsuit

On May 13, 2017, police shot and killed Kane County jail prisoner Tywon M. Salters at the Delnor Hospital in Geneva after he took first one and then another nurse hostage while recovering from surgery. The nurses filed suit against Kane County, a jail guard and the hospital’s security contractor less than two weeks after the incident.

According to the lawsuit, Salters was initially brought to the hospital on May 7 after drinking hydrogen peroxide. Medical staff noted he was “combative,” but he was treated and returned to the jail where he was placed on suicide watch. On May 8, Salters managed to swallow pieces of a jail-issued plastic sandal and drink liquid cleaning solution, requiring doctors to perform stomach surgery.

The nurses claim that at the time of the May 13 incident, jail guard Shawn Loomis left Salters unshackled. He somehow managed to disarm Loomis, ran down the hall and took the first nurse hostage in an office. A second nurse entered and was able to activate the hospital’s emergency alert system; she then persuaded Salters to take her to an isolated room away from other staff and patients.

Salters, armed with a gun, held her for three ...

$6,500 Settlement after Ninth Circuit Reverses Summary Judgment in Retaliatory Ad-seg Case

by Lonnie Burton

On October 26, 2016, the Ninth Circuit reversed a district court’s dismissal of a suit filed by a California prisoner who claimed prison officials had wrongly punished him for reporting staff misconduct. The 2-1 decision vacated a grant of summary judgment to the defendants.

The case began ...

South Carolina Appellate Court Upholds Prisoner’s Wage Suit

by Derek Gilna

South Carolina state prisoner Fred Gatewood, who worked in a prison industries job, thought he was to be paid $4.00 per hour subject to various state-mandated deductions, but in fact received less. He filed wage-related grievances, arguing his pay was subject to incorrect deductions. An Administrative Law Court (ALC) upheld the denial of his grievances and the Court of Appeals affirmed in part and reversed in part.

According to the appellate court, “In 1995, our legislature enacted section 24-3-430 of the South Carolina Code (2007) ... [which] allowed qualified private entities to use inmate labor but required the wages for participating inmates to be no less than ‘the prevailing wage for work of [a] similar nature in the private sector.’” However, on August 1, 2007 the South Carolina legislature amended that provision to permit payment of wages “less than the prevailing wage,” as well as establishing “mandatory deductions from the ‘gross earnings of the inmates engaged in prison industry service work in addition to any other required deductions.’”

Gatewood, who had started working in prison industries prior to the 2007 statutory amendment, argued that he should have been paid $4.00 an hour at ...

California Lifers with Possibility of Parole Entitled to SOL Tolling

The California Court of Appeal held on June 1, 2016 that the one-year statute of limitations (SOL) for a prisoner’s negligence claim was tolled because he was not serving a sentence of life without parole.

California state prisoner Ernest J. Brooks was serving an indeterminate life sentence with the possibility of parole when he was taken to Mercy Hospital for medical treatment in April 2013. While there, he was overmedicated and his IV port became infected.

Under California law, Brooks had until April 2014 to file a negligence action against the hospital. He filed a notice of intent to sue on September 5, 2013 but did not actually file his lawsuit until September 24, 2014 – five months outside the applicable SOL. Mercy Hospital moved to dismiss, arguing the suit was time-barred by the state’s one-year SOL for professional negligence actions against health care providers under California Code of Civil Procedure, section 340.5. Brooks argued that his action was timely because section 352.1(a) grants a two-year tolling of the SOL for people who are imprisoned “for a term less than for life.”

The trial court granted the hospital’s motion, holding that the SOL was not tolled ...

Disability Rights Group Slams Mental Health Program at New York State Prison

by Derek Gilna

Disability Rights New York (DRNY), the state’s Protection & Advocacy group, which has a federal mandate to advocate for people with disabilities, issued a lengthy report critical of the treatment of prisoners in a mental health program at the Sullivan Correctional Facility (SCF). In its report, the organization presented its findings and recommendations after investigating complaints regarding the provision of services to prisoners with intellectual, developmental and mental health disabilities.

For example, some prisoners reported they were physically abused in an area without surveillance cameras, and alleged a guard in the program used racial slurs and instigated confrontations. Further, according to DRNY, “some mental health staff treat behavioral incidents as volitional and manipulative, rather than as a manifestation of disability or a response to environmental factors.”

SCF was first investigated in 2014 for neglecting disabled prisoners, and in response the New York State Department of Corrections and Community Supervision (DOCCS) instituted a 64-bed Correctional Alternative Rehabilitation (CAR) program. According to the report, DOCCS “created CAR to address the needs of individuals with intellectual and developmental disabilities (ID/DD) and to serve as a rehabilitative alternative to punitive isolation in the Special Housing Unit (SHU). Individuals with ...

Nevada DOC Moves to End Discrimination against HIV-positive and Disabled Prisoners

by Matt Clarke

On June 20, 2016, Rebecca Bond, chief of the Disability Rights Section of the U.S. Department of Justice (DOJ), sent the Nevada Attorney General a letter calling out the state’s Department of Corrections (DOC) for unlawfully discriminating against prisoners with HIV, mobility devices and other disabilities – including hypertension, psoriasis and rheumatoid arthritis – in violation of the Americans with Disabilities Act (ADA).

A little over two weeks later, on July 6, 2016, the DOC announced it would no longer apply segregation policies that deny prisoners with HIV access to work programs where they could earn credits to reduce the length of their sentences.

Shortly afterwards, on July 21, DOC Director James Dzurenda announced that prisoners with HIV would no longer be segregated from the general prison population. He also announced other changes, including new protections intended to keep prisoners’ HIV status confidential, and training for both prisoners and prison staff about how HIV is transmitted.

The DOJ letter not only demanded that the DOC change its discriminatory policies and practices, but also to pay damages to prisoners who had been subjected to discrimination.

Faced with the threat of a federal lawsuit, Dzurenda stated the DOC ...

New York: Police Department Ordered to Produce Police Manual in Parolee Shooting Case

by Christopher Zoukis

Nassau County Supreme Court Judge Karen V. Murphy ordered the Nassau County Police Department (NCPD) to turn over its Police Department Manual to the plaintiff in a wrongful death suit on October 6, 2015.

The manual was requested through a Freedom of Information Law (FOIL) petition filed by the law firm of Roth & Roth, LLP, which represents the estate of Andrea Rebello. Rebello, 21, was killed during an armed home invasion and hostage situation in May 2013; she was accidentally shot in the head by a police officer while being used as a human shield by Dalton Smith, 30, who was on parole at the time. Smith was also fatally shot by the police.

Rebello’s family accused the NCPD of conducting only a cursory investigation into the incident to protect the department from liability. The officer involved in the shooting, Nikolas Budimlic, did not face any criminal charges.

The Nassau County Police Department initially denied the FOIL request filed by Roth & Roth; the law firm then sued, alleging the NCPD had denied the records improperly. Following a conference with Judge Murphy, police officials agreed to release a heavily redacted version of the manual.

After several ...

California Court Vacates Prison Infraction Charging Prisoner for Refusing Meals

by Lonnie Burton

The California Court of Appeal, First Appellate District, Division Two, has invalidated a prison infraction that charged a hunger-striking prisoner with “participating in a riot, rout, or unlawful assembly,” as it was unsupported by “some evidence.” The ruling reversed the finding of a prison hearings officer made nearly three years earlier.

Jorge Gomez was incarcerated at Pelican Bay State Prison’s Security Housing Unit (SHU), in segregation. Allegedly a gang member, Gomez was housed in the SHU for more than a decade before he began refusing meals on July 8, 2013 as part of what prison officials called a state-wide mass hunger strike organized by SHU prisoners.

When a sergeant noted that Gomez had refused nine consecutive meals over three days, he was issued an infraction report charging him with rules violations. He was charged with “willfully delaying a peace officer by participating in a mass hunger strike,” and participating in a riot or causing disorder in the prison. Both of the charges were based solely on his refusal to eat.

The hearings officer found Gomez guilty of the infraction, writing that Gomez had pleaded guilty and the record showed he refused nine consecutive meals ...

Report: “Culture of Racism,” Frequent Use of Force at Northern California Prison

by Lonnie Burton

In December 2015, California's Office of the Inspector General reported there was a “culture of racism and lack of acceptance of ethnic differences” among guards at the High Desert State Prison (HDSP), who engaged in “alarmingly” frequent uses of force against prisoners. That report prompted state corrections officials to commission an external review of the facility, which is located about 200 miles north of Sacramento.

Corrections Secretary Scott Kernan ordered the outside review in March 2016, and the Association of State Correctional Administrators (ASCA), which conducted the investigation, published their results on September 23, 2016. The findings of the report, which cost California taxpayers $188,000, were wide-ranging and revealed what was described as a prison staffed by employees “without a clear sense of direction” who viewed prisoners as “little more than wild animals.”

HDSP was designed to hold about 2,200 prisoners but at the time of the study housed more than 3,400. Around three-quarters of the employees at the facility are white, while more than three-quarters of the prison population is black and Hispanic. The facility holds some of the state’s “toughest” prisoners, the report said, and guards rarely interacted with them ...

Alaska Prisoner Deaths Criticized in Report, Author Becomes New DOC Commissioner

The deaths of 25 Alaska prisoners over an 18-month period were examined in a November 2015 report provided to Governor Bill Walker, who then replaced the state’s corrections commissioner with the author of the report. The handling of the deaths, including a lack of staff training, was strongly criticized.

Calling the report’s findings “disturbing,” Walker announced at a press conference on January 28, 2016 that he was nominating Dean Williams as Commissioner of the Alaska Department of Corrections (DOC). Williams led the three-month review into the 25 deaths at state prisons and the Anchorage Correctional Complex, a jail.

Williams’ report found the threat posed by Larry Kobuk, 33, at the Anchorage jail on January 27, 2015 did not appear to “warrant the level of force used.” Kobuk told nurses upon being booked into the facility that he suffered from a heart condition.

In a video, Kobuk is heard swearing at guards in the booking area and repeatedly stating “kill the cops.” When he refused to remove two sweatshirts, guards restrained him and tried to cut them off with scissors. Kobuk was heard saying, “I can’t breathe,” and guards admitted he made that statement. Kobuk eventually stopped ...

Tennessee Sheriff Pleads Guilty to Sexual Misconduct, Excessive Force Charges

A Tennessee sheriff has admitted to using his authority to have sex with jail prisoners on several occasions and using excessive force on another prisoner. Fentress County Sheriff Charles Scott “Chucky” Cravens, 47, pleaded guilty on April 20, 2017 to three counts of honest services fraud and one count of deprivation of rights under color of law after confessing to having unprotected sex, including a threesome, with female prisoners at the Fentress County Jail in exchange for special treatment and favors. The sheriff additionally confessed to kicking a male prisoner, placing him in a headlock and hitting him twice on the back of the head after he was handcuffed.

In light of the criminal charges, Cravens resigned from his position as sheriff six days before he entered his guilty plea. Chief Deputy Gary Ledbetter took charge of the sheriff’s department and issued a joint statement with Fentress County Executive Michael Cross and other county officials, stating, “We are disappointed and shocked by Cravens’ past actions and his admissions. Our focus remains on the day-to-day operations at the sheriff’s office and the Justice Center.”

Tennessee Bureau of Investigation Director Mark Gwyn added, “The citizens of Fentress County, and all of ...

Fourth Circuit Reverses Judgment in Favor of BOP in Deliberate Indifference Case

by Christopher Zoukis

The Fourth Circuit has reversed a district court’s grant of summary judgment in favor of Bureau of Prisons (BOP) officials on a prisoner’s claim that his Eighth Amendment rights were violated.

Paul Scinto, Sr. was incarcerated at the Federal Prison Camp in Butner, North Carolina between June 2005 and March 2006. He suffered from a myriad of medical conditions at the time, including hepatitis C, high blood pressure and insulin-dependent diabetes. His conditions were well-documented in his medical file.

Scinto claimed that he was subjected to deliberate indifference to his serious medical needs on multiple occasions. Specifically, despite acknowledging high blood sugar levels, Scinto’s medical provider, Dr. Derick Phillip, refused to provide him with insulin. Dr. Phillip also allegedly declined to provide treatment to Scinto during a medical emergency in which he experienced extreme stomach pain, “was throwing up vomit and blood ... [and] became incontinent.” Not only did Dr. Phillip refuse to treat Scinto, but in concert with FCI Butner Camp Administrator Susan McClintock, had him thrown in the Special Housing Unit (SHU), where he spent the next six months.

Scinto sued everyone involved, including then-BOP Director Harley G. Lappin, Mid-Atlantic Regional Director Kim White, FPC ...

Illinois: Prison Guards Sued for Fatally Beating, Suffocating Prisoner

by Lonnie Burton

On October 4, 2015, Illinois State prison guards identified only as officers Boland, Bufford and Deal beat prisoner Terrance Jenkins to death at the Pontiac Correctional Center while he was restrained, and suffocated him by shoving a piece of paper down his throat.

Those are the allegations in a lawsuit filed by Phyllis Ellis, Jenkins’ wife, in the U.S. District Court for the Northern District of Illinois on October 3, 2016. The 56-year-old Jenkins, who was glaucomic and housed in protective custody, died from asphyxiation. [See: PLN, March 2017, p.63].

According to the complaint, Jenkins was an avid cards and dominoes player who was on his way to the recreation yard at Pontiac when he was confronted by guards Boland, Deal and Bufford. They ordered Jenkins to stand for a pat search, at which time they found a small swatch of toilet paper in his breast pocket. The guards told Jenkins they were going to take his yard time away because paper was not allowed, and Jenkins tried to explain that he needed the tissue due to excessive eye drainage caused by his glaucoma.

One of the guards then screamed at Jenkins to “cuff the ...

Ohio Prisoners Build Computers from Spare Parts, Conceal them in Ceiling

A pair of prisoners at the Marion Correctional Institution in Ohio built two computers from spare parts obtained from PCs they were dismantling as part of a recycling program, then successfully connected them to the prison’s network. The scheme was exposed when IT staff noticed unusual Internet activity levels on an outside contractor’s account; investigators discovered a network cable leading into the ceiling of a training room closet, where the computers were hidden.

Forensic analysis of the computers’ data revealed pornography and articles about the manufacture of drugs and homemade weapons, identity theft and fraudulent credit card activity. The analysis also found the two prisoners, Adam C. Johnston and Scott Spriggs, had accessed the prison’s internal network, breached the records of fellow prisoners and created passes for other prisoners to use to access prohibited areas of the facility.

The incident occurred in July 2015 but only came to light with the April 11, 2017 release of a report critical of security at the prison. Inspector General Randall J. Meyer’s office said the prisoners who built and concealed the PCs were “unsupervised for extensive periods of time,” and that then-Warden Jason Bunting failed to report the suspected criminal activity. Meyer ...

Private Prison Firms Spend Billions of Taxpayer Dollars Acquiring Other Companies

by Christopher Zoukis

A fact sheet compiled by In the Public Interest (ITPI), a public policy research organization, indicates that Corrections Corporation of America – CCA, now known as CoreCivic – and the GEO Group, the two largest private prison firms in the nation, have spent a combined $2.2 billion since 2005 acquiring other, smaller companies.

That’s $2.2 billion in taxpayer dollars, since almost all the revenue that private prison firms receive are from government contracts paid with public funds.

It’s not surprising that GEO Group and CCA make such acquisitions. They are for-profit corporations seeking to expand their revenue, after all. And therein lies the rub.

According to the ITPI fact sheet, “If government agencies insourced the services provided by these private prison companies, the tax dollars the companies spend acquiring other companies could be invested in programs to rehabilitate incarcerated people and keep at-risk people out of the criminal justice system.”

In the 10 years between 2005 and 2015, GEO Group spent $2 billion to acquire nine companies. Several of those businesses, such as Correctional Services Corporation, also operated private prisons, while others provided monitoring services. The monitoring firms included Soberlink, Inc. (alcohol monitoring), Protocol ...

Banks Profit from Loans to Private Prison Industry

by Derek Gilna

Corrections Corporation of America (CCA), now known as CoreCivic, and GEO Group (GEO), the two largest private prison companies, are major profit-generators for six U.S. banks – Bank of America, JPMorgan Chase, BNP Paribas, SunTrust, U.S. Bancorp and Wells Fargo – according to a report issued by In the Public Interest (ITPI), a non-profit public policy organization. The report was sharply critical of the banks’ involvement in supporting the exploitive private prison industry.

ITPI stated that CCA and GEO Group “depend on debt financing in the form of credit, loans, and bonds to conduct their day-to-day business operations....” As of June 2016, according to documents filed with the Securities and Exchange Commission, CCA owed $1.5 billion to various banks while GEO owed $1.9 billion. In comparison, as of late July 2017, CCA had a stock market value of $3.39 billion and GEO was valued at $3.7 billion.

The debt amounts are significant because, as ITPI notes, for-profit prison companies “have a perverse incentive to make business decisions that lead to more people behind bars. Private prisons also are rife with human rights abuses, pay correctional officers less than they are ...

Dismissal of Personal Injury Claim for Damages from Malfunctioning Jail Gate Upheld

The Mississippi Court of Appeals has upheld the dismissal of a visitor’s claim for damages that resulted from a malfunctioning gate at a county jail.

The August 23, 2016 ruling upheld the dismissal of Ladonna Ware’s claim. Ware alleged that while delivering a package for her incarcerated husband in a secure area of the Adams County Correctional Center in August 2010, an electronically-controlled gate closed on her leg, resulting in injuries. Ware sued the county, the Board of Supervisors and Sheriff Charles R. Mayfield, Jr. in his official capacity.

The trial court entertained the defendants’ motions for summary judgment, in which they argued the claims were barred by the Mississippi Tort Claims Act (MTCA). Finding there were no genuine issues of material fact regarding whether the gate operator’s actions in shutting the gate fell below the threshold of reckless disregard, the court granted summary judgment. Ware appealed.

Noting that the MTCA provides immunity for “claims [a]rising out of the acts by [the county’s] employees engaged in the performance of duties relating to police protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the ...

Man Smuggles Poison into Jail, Commits Suicide Following Arrest for Failure to Pay Ambulance Bill

Less than two hours after he was arrested for not paying an outstanding debt, Rex Iverson, 45, was found unresponsive in a holding cell at a jail in Box Elder County, Utah. An ambulance was summoned and he was pronounced dead upon arrival at a local hospital.

Iverson was jailed, ironically, because he had failed to pay a $2,376.92 ambulance bill he incurred on Christmas Eve 2013. The bill was owed to the Tremonton City ambulance service, which won a judgment against him in small claims court in September 2014.

He subsequently ignored orders to appear in a Utah justice court, which led a county sheriff’s deputy to serve a bench warrant on him on January 23, 2016 – the day he was jailed and subsequently died.

According to Chrissy Sabala, who said Iverson was “like a brother” to her and her three sisters, he didn’t pay the ambulance bill because he simply couldn’t. She said he had lived in a kind of suspended animation since his parents died in a car crash several years earlier; he continued to stay in their house but had no source of income.

“He just didn’t have any money,” said Sabala ...

Fourth Circuit Clarifies Rights of Pretrial Detainees; $35,000 Settlement on Remand

by Christopher Zoukis

The Fourth Circuit Court of Appeals released an important decision concerning the rights of pretrial detainees on November 7, 2016.

The case involved allegations of unconstitutional conduct by authorities at the New Hanover County Detention Facility in North Carolina. The plaintiff, Michael Anthony Dilworth, claimed that he ...

United Kingdom: 80% of Prisoners Aspire to be Entrepreneurs, Opportunity Fund Helps

A May 2016 report from the Centre for Entrepreneurs found that 80% of prisoners in England and Wales are interested in starting their own business, as compared to about 40% of the general population. The report, “From Inmates to Entrepreneurs: How Prison Entrepreneurship Can Break the Cycle of Reoffending,” said that many of the traits displayed by former prisoners – such as personal innovation, the desire for independence and a need for self-achievement – make them suitable for business ownership. It also emphasized that a criminal record doesn’t stand in the way of becoming self-employed, and no formal qualifications are required.

Building on the report’s suggestion that business ownership reduces recidivism, a group of organizations collaborated to create the Enterprise Exchange, which specializes in helping people overcome barriers to becoming self-employed or starting a business. Prisoners with an entrepreneurial spirit and a desire to work hard can receive help from the Exchange’s “Opportunity Fund.” For example, with the assistance of the Enterprise Exchange, former prisoner Joe Davis developed a business plan and opened a South American restaurant. The eatery, Panama Joe’s, currently employs five staff members and has a 4-star rating on the traveler’s review website TripAdvisor.

“The ...

Unlikely Criminal Justice Reform: How New York City Reduced Arrests and Slashed Prisoner Populations

by Lonnie Burton

In what has been described as a "remarkable reversal of mass incarceration,” a newly-published report by Justice Strategies credited the New York Police Department (NYPD) for a massive decline in drug arrests that contributed to a sharp reduction in the state’s prison population. The study, co-published with the Vera Institute of Justice and released on October 28, 2016, was published in the Federal Sentencing Reporter.

The authors of the analysis, Judith A. Greene of Justice Strategies and Vincent Schiraldi, Senior Research Fellow at the Harvard Kennedy School Program in Criminal Justice Policy and Management, said the recent push by New York City (NYC) officials to reduce arrests “was spurred by grassroots advocacy and the growth of responsive and reform-minded public officials at both the state and local levels.”

The report described how the NYPD reduced drug arrests by 66% from 1998 to 2015, from 45,978 to 15,597 per year. During about the same period of time, NYC’s combined prison and jail incarceration rate dropped by 55%. In contrast, the incarceration rate in the rest of the U.S. rose by 12% from 1996 to 2014. The study found that NYC’s reduction in prison ...

Tennessee Sheriff Settles Lawsuit over Religious Proselytization

The Bradley County Sheriff's Office (BCSO) in Tennessee agreed to a settlement to resolve a lawsuit and end the use of its Facebook page to promote or further religious statements. In addition to the settlement terms that regulate Facebook postings, the Sheriff’s Office paid $41,000 in damages and attorney fees.

The lawsuit was filed by New Jersey-based American Atheists and an anonymous Bradley County resident, due to a dispute that arose after Bradley County Sheriff Eric Watson posted an Easter message in March 2016 titled, “He is Risen.” The “He” referred to Jesus. Below the headline, Watson “wrote or sanctioned the writing that the day is special far beyond ‘special services’ and Easter egg hunts, hitting his main point: ‘Jesus die[d] on the cross for our sins’ and ‘rose’ from the dead and cited verses from The Bible, with a link to scripture services,” the complaint stated.

American Atheists sent Sheriff Watson a letter on March 28, 2016, complaining that the “‘He is Risen’ article evangelized Easter inappropriately on a governmental social media site.” It also cited incidents where Watson used “BCSO’s Facebook page to evangelize and proselytize the Sheriff’s faith.”

The letter ...

Consensual Use of Another Prisoner’s Telephone PIN is Not Oregon ID Theft

The Oregon Court of Appeals held on August 17, 2016 that the consensual use of another prisoner’s telephone PIN does not constitute the crime of identity theft under state law.

Jacob Thomas Ritter was incarcerated at the Marion County Jail, awaiting trial on domestic violence charges against his girlfriend.

The jail contracts with Telmate to provide telephone services, and the Telmate system features a two-step security process that prisoners must complete to make a call. Upon booking, each prisoner is assigned a unique personal identification number (PIN) that must be entered to access the phone system. He or she is then required to record a voice password, which Telmate’s voice recognition software compares to the voice of the person making calls with that PIN. If the voice matches, the call proceeds; if it doesn’t, the prisoner cannot make a call.

Jail policy prohibits prisoners from attempting to evade Telmate’s security protocols. The Inmate Handbook warns that “unauthorized telephone use” is subject to disciplinary action; that is, a prisoner may be punished for “using another inmate’s PIN, using another inmate to make calls, or any other activity that circumvents the phone system.” A notice posted near the phones warns: “Use ...

Seventh Circuit: Medical Deliberate Indifference Case Remanded, Loses at Trial

by Christopher Zoukis

In August 2015, the Seventh Circuit Court of Appeals reversed a district court’s grant of summary judgment in favor of prison officials accused of being deliberately indifferent to a prisoner’s serious medical needs, and remanded the case for a trial on the merits. The defendants prevailed at ...

Nebraska Supreme Court Holds Reporter Can’t See Executed Prisoner’s Drawings

by Christopher Zoukis

In August 2015, the Nebraska Supreme Court denied a reporter’s attempt to obtain “graphic” drawings made by infamous executed child-killer John Joubert. Despite the efforts of state prison officials, however, the drawings were eventually obtained and published.

The reporter, Mark Pettit, was an investigative journalist when Joubert abducted, tortured and killed two boys, Danny Joe Eberle, 13, and Christopher Walden, 12, in September and December 1983, respectively. Joubert was arrested the following year; he had also murdered another boy in Maine several years earlier.

While Joubert was on death row, Pettit interviewed him several times and ultimately published a book about the murders in 1990 titled A Need to Kill. During the interviews, Joubert admitted that he continued to have fantasies about killing children and had illustrated those fantasies in two graphic drawings which had been confiscated by prison officials.

Prior to Joubert’s execution in 1996, Pettit attempted to gain access to the drawings. He was rebuffed by the warden despite presenting a letter from Joubert authorizing their release. As the 30th anniversary of Joubert’s heinous crimes approached, Pettit tried again. He was again denied but this time he filed suit, asking a court to order the ...

Seventh Circuit: Two-month Delay in Ordering Biopsy Not Deliberate Indifference

by Christopher Zoukis

The Court of Appeals for the Seventh Circuit ruled on October 12, 2016 that a two-month delay in ordering a biopsy of a prisoner’s potentially cancerous masses did not constitute deliberate indifference to his serious medical needs.

Calvin Whiting was incarcerated at the Shawnee Correctional Center in Vienna, Illinois in October 2010 when he developed pain in his jaw, left ear and groin, as well as nodules in those areas. He sought treatment, was diagnosed with an ear infection and received antibiotics and Motrin.

A week later, Whiting reported worsening pain and a rash. He was given a different antibiotic by a nurse, X-rays were ordered and he was scheduled to see the institutional physician, Dr. Alfonso David.

Dr. David examined Whiting and ordered blood work. He also submitted a biopsy request to the “Collegial Review Committee,” which consisted of himself and one other doctor. The committee denied the biopsy request and decided on further treatment with antibiotics and, of course, more over-the-counter Motrin.

Two months after presenting with his concerning symptoms, the biopsy request was approved and the results were tragic. Whiting was suffering from Stage IV SLK positive anaplastic large cell lymphoma, a rare ...

Ethics Rule Requiring Post-conviction Disclosure of Exculpatory Evidence Adopted in North Carolina

In the wake of the exoneration of five North Carolina men, the state Supreme Court adopted a new ethics rule in March 2017 that requires any attorney who receives evidence suggesting the innocence of a convicted defendant to turn it over to local prosecutors.

At least sixteen other states require prosecutors to report post-conviction exculpatory evidence, according to the Associated Press, but North Carolina is the first to extend that requirement to attorneys in private practice.

“[T]he need to rectify a wrongful conviction and prevent or end the incarceration of an innocent person justifies extending the duty to disclose potentially exculpatory information to all members of the North Carolina State Bar,” a comment to the new rule states.

PLN reported the exoneration of Robert Wilcoxson, Kenneth Kagonyera, Damian M. Mills, Teddy Lamont Isbell, Sr. and Larry Jerome Williams, Jr. after a state innocence inquiry determined they had been wrongfully convicted based on DNA evidence and a 2003 confession from the real perpetrator. They had pleaded guilty to avoid the death penalty or life sentences for a fatal home invasion; exonerated in 2011, they received a settlement of nearly $8 million. [See: PLN, Feb. 2017, p.34].

As the five men sat ...

Use of Electronic Monitoring Skyrockets

by Christopher Zoukis

A study by the Pew Charitable Trusts, released on September 7, 2016, revealed that the number of accused and convicted offenders required to wear some kind of electronic monitoring device has increased nearly 140 percent in the last decade.

Electronic monitoring devices generally consist of GPS and radio-frequency (RF) units. GPS systems are used to track an individual’s location in real time, while RF devices typically monitor an individual’s presence in a specified location.

According to the study, the number of electronic devices being used to monitor pre-trial and post-trial offenders rose from approximately 53,000 in 2005 to more than 125,000 in 2015. The growth during that decade-long period appears to be driven almost entirely by the increase in the use of GPS tracking devices – which are used to monitor parolees, probationers, sex offenders and immigrants facing deportation proceedings.

It is unclear what this significant increase in the monitoring of pre- and post-trial individuals portends for the criminal justice system.

“Although some research suggests that electronic monitoring can help reduce reoffending rates, the expanded use of these technologies has occurred largely in the absence of data demonstrating their effectiveness for various types of offenders ...

Study Finds Extreme Lack of Gender, Racial/Ethnic Diversity in State Courts

by Derek Gilna

A new report, "Gavel Gap: Who Sits in Judgment on State Courts?,” by Professors Tracey E. George and Albert H. Yoon, of Vanderbilt Law School and Toronto Law School, respectively, found that state court judges at both the local and appellate levels are less diverse than the U.S. population as a whole. To reach that conclusion, they “constructed an unprecedented database of state judicial biographies ... [including] more than 10,000 current sitting judges.”

The report, released in June 2016, noted that 90% of all judicial cases in the United States are heard by state court judges, and that “for most individuals and organizations, state courts are the ‘law’ for all effective purposes.” George and Yoon reported that “women comprise roughly one-half of the U.S. population and one-half of American law students [but] less than one-third of state judges are women.”

According to Prof. George, “We need a judiciary that reflects the population and we do not have it right now. A state court judge has tremendous power and discretion in resolving cases ... [and] is not only the most significant person resolving thousands of legal disputes that directly impact everyday Americans, they ...

Seventh Circuit Reinstates Indiana Prisoner’s Lawsuit, Holds Prison Officials Prevented Him from Pursuing Grievances

by Lonnie Burton

In an April 5, 2016 ruling, the Seventh Circuit reversed an Indiana federal district court’s order dismissing a lawsuit filed by a state prisoner who claimed prison officials failed to protect him from assaults by other prisoners. The appellate court held the lower court had improperly found the prisoner failed to exhaust his administrative remedies, because prison staff prevented him from doing so.

In 2012, Indiana prisoner Asher B. Hill sued several prison officials under 42 U.S.C. § 1983, alleging that they failed to act or intervene to stop other prisoners from throwing feces on him through “cuff ports” on four separate occasions. The defendants quickly moved to dismiss, arguing that Hill had failed to exhaust his administrative remedies because he did not file formal grievances as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a).

The district court agreed and dismissed Hill’s complaint on summary judgment, and he appealed. On review, the Seventh Circuit held that Hill had satisfied the exhaustion requirements of the PLRA for three of his four claims because prison officials prevented him from filing or pursuing grievances.

Hill attempted to file four separate grievances ...

Florida: Trio of Con Artists Sentenced in Rule 35 Sentence Reduction Scam

Friends and relatives of at least 22 federal prisoners in Miami-Dade County and elsewhere paid  $4.4 million to a trio of con artists who promised sentence reductions in exchange for fees. Alvin James Warrick, 40, Colitha Patrice Bush, 36, and Ronald Bennett Shepherd, 32, pleaded guilty in March 2017 to fraud conspiracy charges. On June 29, 2017, Warrick was sentenced to 235 months in federal prison, while Bush received a 96-month term. Shepherd, who only had a supporting role in the scheme, received just 28 months.

The victims of the scam were told they would receive services to help them obtain reduced sentences for providing “substantial assistance” to the government as set forth in Rule 35 of the Federal Rules of Criminal Procedure. As part of the scheme, Warrick and Bush, using aliases such as “Peter Candlewood,” “Diane Lane” and “Diane Rice,” provided fake invoices and forged documents that purported to show agreements between various U.S. Attorneys’ offices and their company, Private Services, which appeared to benefit fictitious prisoners.

Instead, the three defendants accepted payments from prisoners’ families and used the funds for gambling and to purchase luxury cars and vacations. Not a single prisoner who ...

Fourth Circuit Rules Lawsuit over Inadequate Prison Food Not Barred by Res Judicata

by Lonnie Burton

On April 25, 2016, the Fourth Circuit overturned a district court’s order dismissing a lawsuit filed by a South Carolina prisoner who alleged that the food served at a state prison was so inadequate and lacking in nutrition as to violate his Eighth Amendment rights. The appellate court held that a previous unsuccessful lawsuit filed by another prisoner alleging the same violations did not bar the plaintiff’s complaint.

Lewis Duckett and 15 other prisoners at the Kershaw Correctional Institution in South Carolina filed suit in April 2013, challenging the quality of food served at the facility. They alleged that meals failed to meet the recommended daily amounts of vitamins and nutrients, that the prison served insufficient portions, and that food purported to be beef was actually made from poultry offal and organs.

The parties agreed that the complaint was drafted by Bernard McFadden, a prisoner who had previously filed and lost an exact same lawsuit while housed at another South Carolina prison. The state defendants moved to dismiss Duckett’s suit – which had since been split into 16 separate cases by the district court – on the basis of res judicata, arguing the “subject matter of this ...

Denial of FOIA Request for Complaints Against Immigration Judges Reversed

by Christopher Zoukis

The D.C. Circuit Court of Appeals has reversed a district court’s order allowing across-the-board redactions by the government in response to a Freedom of Information Act (FOIA) request.

The American Immigration Lawyers Association submitted a FOIA request to the Executive Office for Immigration Review, a division of the U.S. Department of Justice (DOJ), seeking disclosure of records concerning complaints against immigration judges and the resolutions of such complaints. Federal officials produced the records but redacted the names of the immigration judges and other information. The district court upheld the redactions.

On appeal, the D.C. Circuit held the across-the-board redactions of the names of immigration judges did not satisfy the government’s duty to respond, and remanded that issue for the district court to reconsider the application of certain FOIA exemptions. Further, the Court of Appeals found the DOJ’s redaction of the records on the basis that they were non-responsive to the FOIA request, when there was no statutory exemption authorizing such redactions, was improper.

However, the appellate court upheld the DOJ’s redaction of the complaint resolutions involving immigration judges because they were not final opinions or orders, and thus outside the government’s responsibility to disclose ...

News in Brief

Alabama: A guard who worked as a materials handling supervisor at FCI-Aliceville was arrested on April 21, 2017, charged with bribery and making false statements after he was accused of smuggling contraband such as tobacco into the facility in exchange for cash bribes. Prosecutors said Eric C. Pendleton received payments from friends and relatives of prisoners at a home he owned in Tuscaloosa County to smuggle contraband items to prisoners. Pendleton’s lawyer, Thomas Spina, said his client’s character and history are “totally inconsistent with the behavior that he has acknowledged doing in this instance.”

Arizona: PLN has previously reported on incidents in which Chinese prisoners have reached out for help by stashing handwritten notes in the products they are forced to make in prison sweatshops. [See: PLN, Aug. 2016, p.38]. On May 1, 2017, KVOA described another such case. Laura Wallace found a note apparently written by a Chinese prisoner tucked inside the zipper compartment of a purse she had purchased at Walmart. She had the note translated by someone fluent in Chinese; it read, in part: “Inmates in the Yingshan Prison in Guangxi, China are working 14 hours daily with no break/rest at noon, continue working overtime ...


 

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