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Prison Legal News: November, 2021

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Volume 32, Number 11

In this issue:

  1. Wrongfully Convicted Man Freed for Murder of Oregon DOC Director, But State Wants Him Back In Prison (p 1)
  2. From the Editor (p 8)
  3. Indiana DOC Settles HRDC Mail Censorship Suit (p 8)
  4. HRDC Represents Wrongfully Convicted Florida Man Who Spent 37 Years in Prison for a Rape Murder He Did Not Commit (p 10)
  5. Fifth Circuit Overturns Permanent Injunction Requiring Texas Prison to Observe COVID-19 Precautions (p 11)
  6. $750,000 Settlement in South Carolina Pretrial Detainee’s Suicide by Southern Health Partners (p 12)
  7. Arizona Auditor’s Report Finds Underfunding of DOC’s Capital Funding Requests and Unreconciled Prisoner Trust Fund Accounts (p 12)
  8. Washington State Prison Chief Secretly Forced to Retire, But Why? (p 14)
  9. Preliminary Injunction Bars Arkansas from Confiscating Prisoners’ COVID Stimulus Money (p 14)
  10. Benevolent or Predatory? (p 16)
  11. Georgia Sheriff Suspended After Indictment on Federal Civil Rights Charges (p 16)
  12. Language Matters: Why We Use the Words We Do (p 18)
  13. What’s in a Name? (p 19)
  14. Louisiana Prisoners Used as Slave Labor During Hurricane Ida, Families Left in the Dark for Weeks (p 20)
  15. Will Federal Prisoners on Home Confinement Have to Return to Prison? (p 22)
  16. Kentucky’s Prison HCV Policy of Monitoring Without Treatment Constitutional (p 24)
  17. Seven Guards Fired Over Collins County Texas Jail Death (p 24)
  18. All Massachusetts Jails to Provide Prisoners Ten Free Minutes of Phone Calls Per Week and Cap Charges on Additional Minutes at 14 Cents (p 25)
  19. Company Surveils Activists Opposing Construction of Prisons and Jails (p 26)
  20. Federal District Court Orders All CDCR Employees be Vaccinated (p 26)
  21. Louisville Jail Moves to Have Free Phone Calls for Prisoners by First of the Year (p 28)
  22. Hackers Breach Thousands of Security Cameras (p 28)
  23. Wisconsin Feels Effects of Staffing Shortage in State Prisons (p 30)
  24. First Prisoner Elected to Hold Public Office in Washington DC (p 30)
  25. $72,000 Settlement Over Corizon’s Lack of Medical Treatment to Injured Arizona Prisoner (p 32)
  26. Eleventh Circuit Upholds Immunity of Federal Prison Guards Under FTCA, Even for Blatant Unconstitutional Acts (p 32)
  27. Weeks Without a Shower: Neglect Defines COVID-19 Containment in California Jails (p 34)
  28. Audit Reveals Federal Bureau of Prisons’ Chaplaincy Services Branch Critically Depleted (p 36)
  29. To End Mass Incarceration, We Need to Bust the Myths That Prop It Up (p 38)
  30. CFPB Hits JPay with $6 Million in Fines and Restitution Over Fee-Heavy “Debit Release Cards” (p 40)
  31. Eleven Guards Fired after Death at Houston Jail (p 42)
  32. HRDC Prevails Over Wellpath as Vermont Supreme Court Rules Private Contractor Must Release Public Records (p 42)
  33. Indiana Prisoner Entitled to Credit Time During Period of Erroneous Liberty (p 44)
  34. Second Circuit Reversed Dismissal of Former BOP Prisoner’s FTCA Claim Against Dentist (p 44)
  35. $731,000 Jury Award to Illinois DOC Prisoner Held 23 Months Beyond Release Date, Over $210k in Fees Awarded As Well (p 46)
  36. Eighth Circuit Clarifies Legal Standards for Conditions-of-Confinement Lawsuits Brought by Civilly-Committed Sex Offenders (p 46)
  37. Prisoner Voting Population Grows as Illinois Bill Extends Polling Sites to County Jails (p 47)
  38. Massachusetts Department of Corrections Sued Over Use of “Fake” Drug Tests on Legal Mail (p 48)
  39. Seventh Circuit: Local Rules Requiring Specific Filings to Summary Judgments Should Not be Used as a Sanction (p 49)
  40. Michigan DOC Eases Up on Pregnant Prisoners, Limits Shackles and Solitary Confinement (p 50)
  41. D.C. Federal Court Rules District Providing Unlawfully Inadequate Education to Incarcerated Youth with Disabilities, Grants Preliminary Injunction (p 50)
  42. Prison Officials Actions to Correct Inhumane Cell Conditions Merit Judgement in Their Favor (p 51)
  43. Lawsuit Over Denial of Medical Treatment for Painful Erection Causing Impotence in Oklahoma County Jail Reinstated by Tenth Circuit (p 52)
  44. $129,000 Bench Verdict for BOP Prisoner in Failure to Warn of Valley Fever (p 52)
  45. CoreCivic Prison at Center of Georgia Drug Trafficking Investigation (p 53)
  46. Sixth Circuit Holds Court Lacked Jurisdiction to Rule on Summary Judgment in Retaliation Suit by BOP Prisoner (p 54)
  47. Fifth Circuit Holds Defendants Entitled to Sovereign Immunity For Denial of Sex-Reassignment Surgery to Texas Prisoner (p 54)
  48. California Fire Crew Prisoner’s Escape Attempt Leaves Trail of Destruction (p 55)
  49. $5,000 Award for Pro Se Florida DOC Prisoner in Unjustified Pepper Spraying (p 55)
  50. Forced Shaving of Muslim Colorado Prisoner’s Beard Unconstitutional (p 56)
  51. Oregon Suspends Outside Prisoner Work Crews After Prisoner Escape Sparks International Incident (p 56)
  52. Broward County Florida Sheriff Rejects Independent Reviews of Detainee’s Death (p 57)
  53. $170,000 Settlement By New Jersey DOC in Transgender Lawsuit With New Policy (p 58)
  54. $8.6 Million Award Against Wexford for Deliberate Indifference to Prisoner’s Kidney Cancer (p 58)
  55. Arizona Federal Court Dismisses NAACP’s Challenge to Private Prisons as Violating Thirteenth Amendment by Commodifying Prisoners for Profit (p 60)
  56. Fifth Circuit Holds Confessed Medical Malpractice Does Not Insulate Prison Medical Providers From Finding of Deliberate Indifference (p 60)
  57. $23,000 Settlement Against Pennsylvania Dental Healthcare Company for Inadequate Dental Care (p 61)
  58. News in Brief (p 62)

Wrongfully Convicted Man Freed for Murder of Oregon DOC Director, But State Wants Him Back In Prison

by Mark Wilson

"The State can no longer afford to manufacture a case built on lies and half-truths,” wrote Patrick and Kevin Francke in their letter to a federal judge in support of the man wrongfully convicted of killing their brother.

After serving 28 years in prison, Frank E. Gable, then 59 years old, walked out of prison on June 27, 2019. He was a free man but he had a cloud hanging over his head that remains there still. The state of Oregon had filed an appeal to the court order that released him, which remains pending.

On April 18, 2019, U.S. District Court Magistrate Judge John V. Acosta released the stunning decision that Gable was “probably” innocent of murder. In a 94-page opinion, he ordered the state to retry or free Gable within 90 days.

Gable was convicted for the 1989 murder of Michael Francke, Director of the Oregon Department of Corrections (ODOC).

Francke’s brothers wrote in their letter to the judge that the state should “abandon this fruitless endeavor” of trying Gable again. They hoped officials would “concede that they convicted an innocent man.” The sooner they do so, “the better and justice will be served!”

The ...

From the Editor

by Paul Wright

After editing PLN for over 31 years now, it seems like all 370-plus issues of the magazine kind of blend together in my mind like one big, long magazine. A lot of stories don’t have a beginning, middle or an end but rather are like a very, very long play with many scenes in them.

This month’s cover article is one of them. In the very first issue of PLN, May 1990, which myself and PLN’s co-editor at the time, Ed Mead, hand-typed in our respective maximum security prison cells, we reported on the murder of then Oregon DOC director Michael Francke and Gable’s arrest for the murder. Today, 31years later, we are still reporting on Francke’s murder and the rather startling developments behind Gable’s habeas release.

The story is far from over, with prosecutors now appealing the habeas decision. The state’s appeal has been pending for several years now before the 9th circuit federal appeals court. We will report the court’s decision when it is issued. The bigger question of who killed Francke, and why, may never be known. It may turn out to be the story without a conclusive ending, just an enduring ...

Indiana DOC Settles HRDC Mail Censorship Suit

by Chuck Sharman

On September 21, 2021, the Indiana Department of Corrections (INDOC) agreed to a slate of policy reforms embodied in a consent decree to settle a censorship lawsuit filed by the Human Rights Defense Center (HRDC), publisher of Prison Legal News (PLN)and Criminal Legal News (CLN). In addition, INDOC also agreed to pay HRDC a total of $265,000 in damages and attorney’s fees.

HRDC’s complaint was filed in November 2020 after what it termed “haphazard” censorship of its publications at INDOC prisons, including:

• Twenty-two consecutive monthly issues of PLN published from July 2018 to April 2020, which were confiscated at the state penitentiary;

• A dozen issues of PLN and CLN published from May 2018 to July 2020, along with copies of Prison Education Guide, The Criminal Law Handbook, How to Win Your Personal Injury Claim 9th Edition, the Merriam-Webster Dictionary, Merriam-Webster’s Dictionary of Law, The Best 500 Non-Profit Organizations for Prisoners & Their Families, and Beyond Bars: Rejoining Society After Prison, all of which were seized at Pendleton Correctional Facility;

• Ten monthly issues of PLN and CLN published between August 2018 and March 2020, which were seized at New ...

HRDC Represents Wrongfully Convicted Florida Man Who Spent 37 Years in Prison for a Rape Murder He Did Not Commit

by Chuck Sharman

A Florida man who spent 37 years in prison on a wrongful rape murder conviction filed a federal lawsuit on October 4, 2021, against the Tampa Police Department (TPD) officers who mishandled his prosecution, along with the city and a forensic odontologist who provided “expert” bite mark testimony—which was later debunked—at his trial.

The Human Rights Defense Center (HRDC)—a Florida nonprofit that has published Prison Legal News since 1990 and Criminal Legal News since 2017—is providing representation in the suit filed by 56-year-old Robert DuBoise. He was convicted of the brutal August 1983 rape and murder of Barbara Grams while the nineteen-year-old was walking home from work at a store in a Tampa shopping mall.

TPD detectives zeroed in on DuBoise, then just 18, because he had allegedly been a problem employee at the same store—although he left six months before Grams started her tenure there. Fingerprint and hair analysis excluded him as a suspect, but police still pinned the case on DuBoise.

Worse, TPD Detectives Phillip Saladino, K.E. Burke and John Counsman—who are named in the suit—abandoned the search for Grams’s murderer as soon as a supposed “bitemark” was found on her cheek by then-Hillsborough County ...

Fifth Circuit Overturns Permanent Injunction Requiring Texas Prison to Observe COVID-19 Precautions

by Matt Clarke

On March 26, 2021, the Fifth Circuit court of appeals overturned a permanent injunction that required a Texas Department of Criminal Justice (TDCJ) prison to observe certain precautions against the spread of COVID-19.

Laddie Valentine and Richard King are state prisoners incarcerated at a TDCJ geriatric prison, the Wallace Pack Unit. The 1,132 prisoners incarcerated there include 800 who are over the age of 65, 49 who are wheelchair-bound, and 87 who use walkers. Many of them have serious medical conditions. All live in tiny cubicles which have a small personal sleeping and living space and are separated from one another by waist-high steel walls. An average of 54 cubicles are jammed into each of the prison’s dormitories.

On March 30, 2020, Valentine and King filed a federal civil rights lawsuit alleging the prison had failed to implement adequate precautions against the spread of COVID-19 in violation of the Eighth Amendment, the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). On April 11, 2020, the first prisoner assigned to Pack Unit died of COVID-19. By the time the case went to trial, about 500 had tested positive for the virus, 74 had been hospitalized with ...

$750,000 Settlement in South Carolina Pretrial Detainee’s Suicide by Southern Health Partners

by David M. Reutter

On June 17, 2021, Southern Health Partners paid $750,000 to resolve a lawsuit alleging it failed to take proper steps in caring for a pretrial detainee who entered South Carolina’s Marlboro County Jail with a prescription drug addiction.

Roy Locklear, 30, had a history of drug abuse and addiction, specifically pain medications and cocaine. A bench warrant was issued for Locklear on January 15, 2013, after he tested positive on five straight drug screens in the prior month. South Carolina Department of Law Enforcement Agent Brian Truex began working to take Locklear into custody on October 23, 2014. He made contact with Locklear’s father on about October 30 and learned of Locklear’s severe drug addiction.

Later that evening, Locklear contacted Agent Truex. After some discussion, Locklear agreed to turn himself in only to Agent Truex because “he didn’t trust the local officers as they had lied to him before and he was scared of them.” He was taken into custody on November 5, 2014. Truex told Locklear’s mother at that time that the situation was an “opportunity for [Locklear] to get his life straight.”

On the way to Marlboro County Jail, Locklear said he was tired ...

Arizona Auditor’s Report Finds Underfunding of DOC’s Capital Funding Requests and Unreconciled Prisoner Trust Fund Accounts

by Matt Clarke

In October 2020, the Arizona Auditor General’s Office published a report on a performance audit of the Department of Corrections, Rehabilitation and Reentry (DOC). The audit reviewed the DOC’s revenues, expenditures, capital funding, and management of prisoners’ monies. Although the auditors found DOC spending was largely compliant with applicable statutory and other requirements, it did note that the DOC was allocated less than 5% of its requested capital funding. It also had 480 unreconciled transactions involving prisoners’ monies between January 2015 and January 2019, and had not reconciled any prisoner account statements since November 2019.

The DOC operates ten state prison complexes and contracts for six privately-owned or -managed prisons. As of August 31, 2020, it was responsible for supervising 39,153 prisoners in state and private prisons and 5,189 persons under community supervision.

DOC finances are handled in 19 separate funds from a variety of sources, including legislative appropriations, portions of the luxury tax allocated by statute, transfers from other funds and government agencies, income from DOC-owned property, sales of DOC-made goods, and donations. The largest is the General Fund which receives an almost $1.1 billion annual appropriation. About 60% of the fund’s expenditures are for payroll ...

Washington State Prison Chief Secretly Forced to Retire, But Why?

It all seemed above board when, on January 26, 2021, Washington Department of Corrections (DOC) Secretary Stephen Sinclair sent an email to DOC employees announcing his retirement effective May 1, 2021, but, according to the Seattle Times, a Public Records Request led to documentation that revealed he had been asked to step down by Washington Governor Jay Inslee.

After Sinclair announced his pending retirement, Inslee praised his over three decades of service at the DOC, including being its secretary since 2017. He did not mention that he had requested Sinclair’s resignation and, when asked directly about it, he deflected, calling it “irrelevant at this point.”

The changing of the guard of top state officials is usually a highly choreographed performance. Staffers at the DOC and the governor’s office know their emails are public records and were careful not to reveal whether Sinclair was being forced out of office or not. But Sinclair was not so careful. His response to a draft of a schedule detailing the revelation of his retirement to the media included a notation for January 22: “Steve notifies Governor.” Sinclair put a comment on the draft asking, “Why do I need to notify the Gov he is ...

Preliminary Injunction Bars Arkansas from Confiscating Prisoners’ COVID Stimulus Money

by David M. Reutter

An Arkansas federal district court issued a preliminary injunction that bars the Arkansas Department of Corrections (ADC) from carrying out a state law that confiscates prisoners’ stimulus money and distributes it to the state.

The Court’s September 3, 2021, order was issued in a lawsuit brought by ADC prisoner Anthony Lamar. As the COVID-19 virus hit the United States, Congress responded to the halting of the economy by passing the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) on March 27, 2020. For purposes of Lamar’s lawsuit, the most noticeable part of the CARES Act was a $1,200 payment to every American adult with an income below $75,000. Those payments were commonly known as stimulus checks.

Congress passed two more stimulus bills in the next year. The December 27, 2020, Consolidated Appropriations Act (CAA) included a $600 stimulus payment or tax credit. Then, on March 11, 2021, Congress approved a $1,400 stimulus payment or tax credit with the American Rescue Plan Act.

Prisoners fell under the definition of persons eligible to receive stimulus checks. The Internal Revenue Service originally declined to send stimulus payments to prisoners, but a California federal district court entered a permanent ...

Benevolent or Predatory?

Lake Ozark Politician Gives Women Prisoners Help, Gets Sex

by Casey J. Bastian

In 2015, Gerry Murawski was an elected city alderman for Lake Ozark, Missouri. Murawski was also engaging in questionable relationships with several young women. During the period of 2015-2016, Murawski would provide money and favors for at least four women who had been held in the local Laclede County Jail. The young women would give massages, companionship, and sex after they were released; one stated that she felt “obligated” to engage in sex acts with Murawski for the financial help he had provided.

This conduct would eventually lead to three separate investigations by local, state, and federal authorities. At one point, Murawski admitted to the FBI that a prostitute he solicited through Craigslist in 2015 had been only 16 at the time. Meeting an underage girl online and having sex with her at a Columbia, Missouri hotel did not lead to any criminal charges. In fact, not one of the three investigations resulted in any criminal charges against Murawski. It didn’t even hurt his political career. Murawski would be elected mayor of Lake Ozark in 2019.

Murawski was recently asked by local reporters with the LakeExpo.com news ...

Georgia Sheriff Suspended After Indictment on Federal Civil Rights Charges

by David M. Reutter

Clayton County Sheriff Victor Hill was suspended by Georgia Gov. Brian Kemp following the review of a federal civil rights indictment that charged Hill with ordering excessive use of force against detainees.

Kemp’s June 2, 2021 administrative order was issued after a commission he ordered in May released its report. The commission’s members were charged with determining whether the indictment “relates to and adversely affects the administration of the office of Clayton County Sheriff such that the rights and interests of the public are adversely affected.”

According to a press release from the U.S. Attorney’s Office for the Northern District of Georgia, Hill ordered staff at the Clayton County Jail on four separate occasions in 2020 to strap pretrial detainees into a restraint chair “for a period exceeding that justified by any legitimate nonpunitive government purpose.”

A superseding indictment was filed in July for a fifth incident in which a man was allegedly placed in a restraint chair with a spit hood, punched in the face, and left for several hours.

The latest indictment describes Hill ordering the prisoner to be placed in the chair, and being present when the hood was placed on the prisoner’s ...

Language Matters: Why We Use the Words We Do

by Paul Wright

 

Recent years have seen efforts by a lot of well-meaning people referring to prisoners as “people in prison” or “incarcerated people,” former prisoners as “returning citizens,” “formerly incarcerated people” and more. Pretty much since we started publishing PLN in 1990 we have used the terms prisoners, guards, prisons, jails, ex or former prisoner, etc. In the October 1993 issue of PLN we published an article by Ojore Lutalo, titled Some Food for Thought: Prisoners Are Not Inmates that pretty much set forth our reasoning. Almost 30 years later it is probably time to address the matter again.

This year marks the 50th anniversary of the Attica massacre which was second largest massacre of people on American soil in the 20th century by government forces. It also ushered in the modern era of prison and penal reform which saw the courts abandon their “hands off” doctrine and begin to enforce the constitution behind bars. In many ways, the government gave up a little bit to keep a lot when it came to its power to control, abuse, oppress and exploit prisoners.

One of the biggest changes was the change in language it used to refer ...

What’s in a Name?

Exconvict, formerly incarcerated, or returning citizen?

by Jeffrey Ian Ross

In the field of corrections, there are lots of labels, names, and terms that the public frequently applies to people who are housed in, live in, and are processed by jails and prison that I dislike.

These terms are frequently used in a simplistic and dehumanizing manner. Take for example, the word offender. I think we can agree that many of things that people who are convicted did were offensive, but not all actions that they may have engaged in rise to this label, and as we know, some people who are incarcerated are wrongfully convicted.

But when it comes time to choose the appropriate names for someone who is locked up in or released from a carceral setting, a sufficient amount of nuance must be observed. Among people who are incarcerated in the United States, they differentiate among the labels prisoners, inmates, and convicts. Each term means something different to them, however, this is a different discussion.

But the current tendency to use the expressions or terms formerly incarcerated or returning citizens, by well-meaning activists and academics, people working in the field of restorative justice, or worse the perpetual ...

Louisiana Prisoners Used as Slave Labor During Hurricane Ida, Families Left in the Dark for Weeks

by Brian Dolinar

When Hurricane Ida made landfall this past summer, it was the deadliest and most destructive to hit Louisiana since Hurricane Katrina. In 2005, many prisoners were not evacuated and left for days in their cells without food or clean water, standing chest-high in flood water.

This time around, prison officials evacuated some, and left others behind who were used essentially as slave labor to lay sandbags in preparation of the storm. Families went for weeks without getting a phone call from their loved ones, left to worry about their wellbeing. On top of everything, the hurricane happened in the midst of a pandemic, with the authorities unprepared to face the challenges.

Louisiana incarcerates more people per capita than any state in the US, with 1,094 out of every 100,000 residents behind bars. According to Prison Policy Initiative, Louisiana locks up a higher percentage of its population than any other nation. Among some 50,000 people incarcerated, about 12,000 are held at local jails in parishes, what Louisiana calls its counties.

On August 29, 2021, Hurricane Ida touched down in Louisiana as a Category 4 hurricane. In Louisiana, it left behind a recorded $25-35 billion in damages and 33 ...

Will Federal Prisoners on Home Confinement Have to Return to Prison?

by Dale Chappell

The million-dollar question lately has been whether the thousands of federal prisoners released on home confinement to reduce prison crowding would have to return to prison once the pandemic is over. While it’s not looking so good for those sitting at home waiting for the answer, let’s take a look at how things got to this point and what some of the experts are saying.

It was a smart move: release low-level, non-violent federal prisoners to home confinement in order to reduce the population of the 122 federal prisons in the wake of COVID-19 spreading among staff and prisoners at a steady pace. But the move was made possible only after Congress created the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which expanded the authority of the U.S. Attorney General to allow the Federal Bureau of Prisons (BOP) to release prisoners to home confinement, no matter how much time they had left to serve. Prior to the CARES Act, the BOP could release prisoners to home confinement only during the last six months or ten percent of their sentences, whichever was less.

But the CARES Act contains some tricky language. It says that the BOP ...

Kentucky’s Prison HCV Policy of Monitoring Without Treatment Constitutional

by David M. Reutter

The Sixth Circuit Court of Appeals, in an unpublished opinion, held that the Kentucky Department of Corrections (KDOC) policy of refusing to provide Direct-Acting Antivirals (DAAs) to all prisoners infected with hepatitis C virus (HCV) is constitutional. The Court found that because KDOC provides regular monitoring of those prisoners’ condition, it is not deliberately indifferent to their serious medical needs.

The Court’s July 6, 2021, opinion was issued in a class action suit brought about by 1,200 KDOC prisoners, which is about 10% of its population, who are infected with HCV. They alleged that KDOC’s HCV policy violates their Eighth and Fourteenth Amendment rights.

KDOC screens prisoners for HCV and tests for antibodies in prisoners who have certain risk factors or request it.

If a prisoner tests positive for HCV, KDOC “(1) evaluates the inmate for signs and symptoms of liver disease, (2) obtains additional laboratory tests, (3) calculates the inmate’s APRI score (which is used to assess the degree of liver fibrosis, if any), (4) offers vaccines for Hepatitis A, influenza, and pneumococcal, and (5) educates the inmate about chronic HCV.” The prisoner is then assigned one of three priority levels. Only level one receives ...

Seven Guards Fired Over Collins County Texas Jail Death

by Jayson Hawkins

Marvin David Scott III was far from what most people would consider a criminal. The 26-year-old played football in high school, made straight As, and was described by friends and family as “generous to everyone around him.”

It is doubtful that police in Allen, Texas, a suburb or Dallas, knew anything about Scott when they arrested him on March 14, 2021 for a single marijuana joint. It turned into a death sentence.

Guards at the Collin County Detention Facility likely did not know about Scott’s history of mental illness when they strapped him to a restraint bed, pepper sprayed him, and put a spit hood over his head. Roughly four hours after entering the jail, Scott was dead. [PLN, Aug. 2021, p. 54]

Ensuing investigations by the Collin County Sheriff’s Office and the Texas Rangers led to the firing of seven guards and the resignation of an eighth.

“Evidence I have seen confirms that these detention officers violated well-established Sheriff’s Office policies and procedures,” said Sheriff Jim Skinner, although no details were provided as to what violations occurred.

In October 2021, the sheriff released a 41-minute video of the incident. It shows guards moving Scott, who ...

All Massachusetts Jails to Provide Prisoners Ten Free Minutes of Phone Calls Per Week and Cap Charges on Additional Minutes at 14 Cents

While the Massachusetts Department of Corrections charges prisoners ten or 11 cents per minute for phone calls, the state’s sheriffs set their own rates individually. Some sheriffs charged more than 40 cents per minute.

Now, according to the Massachusetts Sheriff’s Association (MSA), all 14 sheriffs in the state have agreed to provide people incarcerated in their jails ten minutes of free phone usage per week and cap the charges for anyone using more than the allotted ten minutes at 14 cents per additional minute effective August 1, 2021.

MSA president and Suffolk County Sheriff Steven Tompkins said the sheriffs were aware of the need to maintain contact with friends and loved-ones to prepare prisoners for re-entry into society.

Another factor may have been a bill, S1559/H1900, backed by Prisoners’ Legal Services (PLS) and filed by State Senator Cynthia Creem and Representative Chynah Tyler, which would require the provision of free telephone calls to people incarcerated in the state’s jails and prisons. In promoting the bill, PLS mentioned the phone calls’ positive effect on re-entry and noted that prisoners’ children would also reap benefits of family contact during a vulnerable time.

However, its most powerful argument was that “[p]risoners and their ...

Company Surveils Activists Opposing Construction of Prisons and Jails

by Keith Sanders

As if building prisons were not enough, companies are now engaged in what are called “corporate counterinsurgency” measures designed to influence public opinion by monitoring and surveilling groups opposing the construction of new prisons and other public works projects.

One architecture and design company in particular, HDR Inc., even has what it calls its STRATA team, dedicated to keep tabs on activist groups’ social media accounts for the government.

Documents obtained by a public records request and given to Motherboard, a Vice News project, detail how the billion-dollar firm utilizes the information gleaned from its surveillance. HDR has a program called “social listening” that monitors social media platforms 24/7 in order to discern key trends and influencers. The results of the monitoring are included in an “influencer” report that analyzes public sentiment by categorizing groups as “ethnic enclaves,” “barrios urbanos,” “scholars and patriots,” and “American dreamers.”

Building Up People Not Prisons, a prison abolition group, revealed documents showing how HDR “leverages large data sets to visually display social and political risk nationwide.”

For instance, in April 2021 the Board of Commissioners in Greene County, OH contracted HDR not only to build a new jail but ...

Federal District Court Orders All CDCR Employees be Vaccinated

by Douglas Ankney

On September 27, 2021, the United States District Court for the Northern District of California ordered implementation of the Receiver’s recommendations that “(1) access by workers to CDCR institutions be limited to those workers who establish proof of full vaccination or who have established a religious or medical exemption to vaccination and (2) incarcerated persons who desire to work outside of the institution or to have in-person visitation must be fully vaccinated against COVID-19 or establish a religious or medical exemption.”

Since 2005, the California prison medical care system has been under federally-ordered receivership [See PLN, Mar. 2006, pg.1]. COVID-19 falls under the Receiver’s authority. Until the dispute over mandatory vaccination, Defendants Gavin Newsom and others, including California Department of Corrections and Rehabilitation (CDCR) employees, followed the Receiver’s recommendations. Beginning in April 2020, the Court had conducted regular case management conferences focused almost exclusively on pandemic management that were attended by the parties and the California Correctional Peace Officers Association (CCPOA), the union which represents guards. Defendants cooperated with the Receiver by implementing measures to distance prisoners from one another; implementing a transfer matrix to reduce risk of transmission caused by movement of prisoners; implementing staff ...

Louisville Jail Moves to Have Free Phone Calls for Prisoners by First of the Year

by Kevin Bliss

Louisville, Kentucky’s Metro Department of Corrections (MDOC) who operates the city jail has been ordered by the Metro Council Budget Committee to stop charging prisoners for phone calls from the jail by December 31, 2021.

MDOC currently contracts with Dallas, Texas communications giant Securus Technologies for its jail phone system. Current calls cost prisoners and their families $1.85 for 15-minute calls to local landlines, inter- and intrastate calls have additional per-minute fees. Calls to cell phones have a flat $9.99 fee.

Lawmakers told MDOC director, Dwayne Clark, to create a new plan eliminating phone fees for prisoners and families by the beginning of next year. The current plan is too much of a hardship on families of the prisoners. “We should not be funding our jail on the back of the families whose loved ones are inmates and should be doing all we can to keep families connected to their loved ones, to ease reentry and reduce recidivism,” stated Budget Committee Chair Bill Hollander.

Mayor Greg Fischer estimated the MDOC would generate revenue of $700,000 from telephone kickbacks for the year 2021. The city plans to use the better revenue forecasts and federal American Rescue Act funds” ...

Hackers Breach Thousands of Security Cameras

by David M. Reutter

An international group of hackers gained access to the security cameras at 68 organizations that use Silicon Valley start-up Verkada, Inc. They got into cameras at schools, prisons, police departments, hospitals, and other companies.

The incident was reported in March 2021 after a hacker identified as Tillie Kottmann contacted Bloomberg News with details about the hack. Kottman said the breach was carried out by an international hacker collective. The intent behind the breach was to show the pervasiveness of video surveillance and the ease with which such systems can be compromised.

Kottman’s press release took credit for hacking Intel Corporation and Nissan Motor Company. The group’s reasons for hacking are “lots of curiosity, fighting for freedom of information and against intellectual property, a huge dose of anti-capitalism, a hint of anarchism—and it’s also just too much fun not to do it.”

The hack “exposes just how broadly we’re being surveilled, and how little care is put into at least securing the platforms used to do so, pursuing nothing but profit,” Kottmann said. “It’s just wild how I can see the things we always knew were happening, but we never got to see them.”

According to Kottman, ...

Wisconsin Feels Effects of Staffing Shortage in State Prisons

by Kevin Bliss

Staffing shortages in Wisconsin’s maximum security prison, Waupun Correctional Facility, prompted the Wisconsin Department of Corrections (WDOC) in June of 2021 to ask for guards at the state’s other prisons to voluntarily report to Waupun to work a two week pay period on a rotational basis through December. Many claim the shortage was due to former Governor Scott Walker’s signing Act 10 into law in 2011. This bill put an end to collective bargaining.

Working a shift outside a guard’s normal posting is colloquially known as a “force.” It occurs when staff is needed for weekends or holidays. Yet, this is the first time anyone has been sent across the state to another prison for a force. The WDOC covers housing, food, and mileage costs for this force.

WDOC prison population is lower than the national average. However, statistics from the Vera Institute of Justice show the population has increased 464% since 1983 and 20% since 2000. The increased population has required a proportional increase in the need for guards, which has not occurred.

Waupun is currently understaffed by 45.3%, meaning it has 134 vacancies out of a possible staff of 296. This prison may be by ...

First Prisoner Elected to Hold Public Office in Washington DC

by Kevin Bliss

Joel Castón, 44, a prisoner of the District of Columbia Jail, may be the first incarcerated elected official in the nation. He won the special election June 15, 2021 for the Ward 7 Advisory Neighborhood Commission seat, beating out four others for the position—who were also fellow prisoners.

A Georgetown Prison Scholar who has served 26 years for a murder conviction at age 18, Castón was doing research for a podcast he hosted when he found that convicted felons could not only vote in the District of Columbia (even while still incarcerated), but could hold office as well. After considering what it meant to give residents of the jail a voice, Castón threw his hat in the ring as a write-in candidate. He then prepared a quick campaign based on the principles of dignity and inclusion. And, with the help of the jail staff, Castón made a campaign video for release.

Castón won the first election hands down. But, an error in his voter registration address caused him to be disqualified. A special election was held June 15, 2021 to fill the open seat. This time, though, four candidates ran against Castón—Aaron Brown, Keith Littlepage-El, Gary Proctor, ...

$72,000 Settlement Over Corizon’s Lack of Medical Treatment to Injured Arizona Prisoner

by Matt Clarke

On August 8, 2020, Corizon Health, Inc. agreed to pay $20,000 to settle its part of a federal lawsuit brought by an Arizona prisoner who suffered a partial foot amputation after Corizon delayed effective medical treatment.

Arizona state prisoner Edmund V. Powers fell 60 to 80 feet, suffering severe injuries which included a broken spine, ten broken ribs, a broken left hip, and a “shattered” pelvis and left foot. He underwent multiple surgeries and physical therapy, relearning to walk with the assistance of an elevated left shoe, a brace and a cane. An Arizona Department of Corrections (DOC) physician determined that he was “disabled” and issued a special needs order (SNO) that he was subject to modified work duties which were not a direct threat to his health and safety. Following additional surgeries, he was in a wheelchair for months, then approved to use a wheelchair for long distances.

A specialist reviewed an MRI of Powers and recommended a custom lift boot and restriction to partial weight bearing for four weeks while Powers awaited additional surgery. Both Registered Nurse Kelly Rogers and Nurse Practitioner Carrie Smalley had notice of the recommendations, but refused to modify the SNO. ...

Eleventh Circuit Upholds Immunity of Federal Prison Guards Under FTCA, Even for Blatant Unconstitutional Acts

by Dale Chappell

In a move that surprised few, the U.S. Court of Appeals for the Eleventh Circuit went against the grain of almost every other court and held on June 9, 2021, that the discretionary function exception, which grants immunity to federal employees when they injure someone while exercising their discretion on the job, applies even when the employee violates someone’s constitutional rights, no matter how blatant.

It’s a case that’s disturbing but shows the disregard for human life that prison officials have for prisoners. About six years ago, Mackie Shivers was sleeping when his “cellie,” Marvin Dodson, attacked him with a pair of scissors, stabbing him in the eye. Shivers wound up losing that eye. But it could have been prevented, he said, because he repeatedly told staff about his cellie’s violent actions and how he feared for his safety. Both men were in the U.S. Penitentiary at Coleman in Florida, with Shivers serving a mandatory life sentence after losing a drug case at trial. Dodson was also serving a drug sentence and had been deemed a safety risk because of his numerous violent acts while in prison. Somehow the two men lived together for eight months until ...

Weeks Without a Shower: Neglect Defines COVID-19 Containment in California Jails

Incarcerated people have been denied basic services in the name of fighting the virus, exacting a heavy psychological toll.

by Brian Osgood, The Intercept

Michael Pitre spent Christmas Eve in a frigid cell in the Sacramento County Main Jail. Wrapped in a blanket that hadn’t been replaced in weeks, he thought back to previous holidays that he had spent with his two daughters. But now, with his unitunder strict lockdown due to an outbreak of COVID-19, all Pitre could do was lie on his bed and cry. To make matters worse, he said, he had not been allowed to shower since he was booked into the facility on December 2.

In total, Pitre said he went six weeks without a shower, nearly the same amount of time he went without speaking to his daughters over the phone. After spending two weeks in near-total isolation in an intake cell, where he was allowed out only for occasional calls with his attorney, Pitre was moved to a two-person cell. His cellmate had also been denied access to a shower, and the two men splashed water onto their bodies from the sink in a humiliating daily ritual that did little to alleviate the ...

Audit Reveals Federal Bureau of Prisons’ Chaplaincy Services Branch Critically Depleted

by Casey J. Bastian

The Office of the Inspector General completed an audit of the Federal Bureau of Prisons (BOP) Chaplaincy Services Branch (CSB) in July 2021. The CSB is responsible for the BOP’s religious services nationwide. The program is intended to ensure that the constitutional right of prisoners to practice religion is protected. Almost 70 percent of the BOP prisoner population identifies with a particular faith group or tradition.

The audit revealed that the CSB is so depleted that a mere 236 personnel are serving more than 150,000 prisoners. This results in only eight of the 26 recognized faith groups being represented. The audit concluded that “a significant shortage in the number of chaplains and other chaplaincy services staff impairs the BOP’s ability to implement a safe and effective religious services program.”

The audit identified five key areas requiring improvement and policy updates to help ensure prisoners’ access to religious services as well as the safety and security of the institutions. As well as identifying the current deficiencies, the audit offered several recommendations to alleviate those problems. On May 21, 2021, the BOP adopted several of the recommendations while promising to implement those changes in a reasonable amount of ...

To End Mass Incarceration, We Need to Bust the Myths That Prop It Up

An interview with Victoria Law

by James Kilgore, Truthout.org

One of the most pervasive myths about incarceration is that it makes a society safer. Now, a leading journalist who focuses on the criminal legal system has taken on that question in her new book.

Victoria Law is a prolific reporter who is perhaps best known for spending years in the trenches exploring the experiences of women in prison. Her work always centers the voices of impacted people, while maintaining a broad lens on mass incarceration and digging deep into a wider variety of issues related to prison and jails.

Having recently released a joint book with Truthout editor Maya Schenwar in July of last year, Prison By Any Other Name, Law already has another book on offer. This new work, “Prisons Make Us Safer”: and 20 Other Myths About Mass Incarceration, is designed as a primer. [It is now available in paperback from HRDC, see ordering information on page 70.] While promoted as a rudimentary guide to the issue of mass incarceration, this volume provides both basic facts and figures while tackling some of the more complex carceral debates in an accessible way. With clear-cut analysis and a ...

CFPB Hits JPay with $6 Million in Fines and Restitution Over Fee-Heavy “Debit Release Cards”

by Chuck Sharman

In an order and settlement agreement released on October 19, 2021, by the federal Consumer Financial Protection Bureau (CFPB), prison financial giant JPay, LLC agreed to pay $6 million in fines and restitution, after its prepaid debit cards were found to have taken unfair advantage of some 1.2 million prisoners who were issued one since 2011.

PLN has reported extensively on the whole debit card racket which takes money from prisoners and arrestees and then returns it to them on fee laden debit cards where the money’s owner must pay exorbitant fees for the privilege of spending their own money. The Human Rights Defense Center (HRDC), who publishes PLN, currently has three class action lawsuits pending against debit card companies, Jpay, Numi and Rapid Financial Solutions. In 2015 HRDC petitioned the CFPB to take action against these debit card companies. Six years later, our call was heeded.

The so-called “debit release cards” were handed out with a prepaid account balance, in lieu of a check, for monies that were owed to those leaving custody of prisons that contracted with the Florida-based private financial services firm. Those monies included cash confiscated when a prisoner entered a lockup, ...

Eleven Guards Fired after Death at Houston Jail

by Brian Dolinar

As other cities like Los Angeles, Chicago, and New York have slowly begun to decarcerate their county jails, the Harris County Jail in Houston has resisted reform efforts. Over the years, Prison Legal News (PLN) has documented the persistent problems at the jail in Houston. The recent death of Jaquaree Simmons resulted in 11 guards being fired, and another six suspended. Despite the sheriff’s swift action, details of the man’s death suggest the widespread acceptance of abuses in the Lone Star State of Texas.

In October 2009, PLN ran a cover story about the Houston jail after the Department of Justice released an investigation concluding that “certain conditions at the Jail violate the constitutional rights of detainees.” From 2001 through June 2009, 142 prisoners died in Harris County’s jail—most were pretrial detainees. A new sheriff, Adrian Garcia, took over the jail in 2009 promising to do better, but an investigation by the Houston Chronicle showed that little progress was made. Between 2009 and 2015, 55 people died in the jail while awaiting trial.

Among them was Kenneth Christopher Lucas who died at the jail in 2014 while being restrained in an incident that was captured ...

HRDC Prevails Over Wellpath as Vermont Supreme Court Rules Private Contractor Must Release Public Records

by David M. Reutter

The Vermont Supreme Court concluded that under the Public Records Act (PRA) when “the state contracts with a private entity to discharge the entirety of a fundamental and uniquely governmental obligation owed to its citizens, that entity acts as an ‘instrumentality’ of the State.” That conclusion led the Court to find that Wellpath was required under the PRA to release “any records relating to legal actions and settlements arising” from the care it provided to Vermont prisoners.

The Court’s September 3, 2021 order was issued in an appeal by the Human Rights Defense Center (HRDC), the publisher of PLN. From 2010 to 2015, Correct Care Solutions, now known as Wellpath LLC, held a contract with the Vermont Department of Corrections (DOC) to provide medical care to every person in DOC’s custody. The contract paid Wellpath over $91 million.

In 2015, HRDC sent Wellpath a PRA request seeking public records relating to all payouts for claims, lawsuits, or contracts arising from Wellpath’s provision of services under that contract. Wellpath declined to provide the requested documents, asserting that as a private entity it was not subject to the PRA. HRDC sent another request for those documents in ...

Indiana Prisoner Entitled to Credit Time During Period of Erroneous Liberty

by David M. Reutter

The Indiana Supreme Court held that a prisoner who was erroneously released early “is entitled to credit time as if he were still incarcerated during the period he was erroneously at liberty.”

The court’s June 21, 2021 opinion was issued in an appeal brought by Jordan Allen Temme. He pled guilty in 2017 to several charges under two different case numbers. Temme was sentenced to a total of nine years with the sentences running consecutive to one another on the two case numbers. His projected release date was December 2020.

Five of the nine years were for felony offense to be served in the Indiana Department of Corrections (IDOC). The other offenses were misdemeanors. Upon intake into IDOC, prison officials erroneously awarded 450 days of jail credit that were supposed to be credited to the misdemeanor offenses. That resulted in Temme being released to the Vanderburgh County Jail (VCJ) after serving only ten months of his felony sentences. He was also discharged from parole supervision.

After arriving at VCJ, Temme was again awarded the 450 days of credit. Although he raised questions that release date was too early, Temme was released on July 4, 2019, with ...

Second Circuit Reversed Dismissal of Former BOP Prisoner’s FTCA Claim Against Dentist

by David M. Reutter

The Second Circuit Court of Appeals reversed the dismissal of a former federal prisoner’s complaint brought pursuant to the Federal Tort Claims Act (FTCA). The court concluded that a state rule that requires an affidavit of merit to state a claim for medical negligence does not apply in federal proceedings.

The court’s August 25, 2021 opinion was issued in an appeal brought by Royce Corley. Acting pro se, Corley filed an FTCA complaint in federal court against a dentist and dental hygienist at FCI Danbury in Connecticut.

Corley alleged that on November 14, 2016, a dental hygienist damaged a filling in his wisdom tooth and broke a cap on one of his front teeth during a cleaning. A few weeks later, the cap on the front tooth fell off, exposing his chipped front tooth. Over the next few months, the dentist refused to replace the cap or repair the filling. The dentist attempted to extract the wisdom tooth on March 13, 2017, “in a painful procedure that caused the tooth to break into several pieces that were not entirely removed during the procedure.” The tooth remained in pieces, causing severe pain, bleeding, and infection along with ...

$731,000 Jury Award to Illinois DOC Prisoner Held 23 Months Beyond Release Date, Over $210k in Fees Awarded As Well

by David M. Reutter

An Illinois federal district court found that a prison records clerk deprived a former prisoner of his liberty and caused him to serve 721 days beyond his sentence. A federal jury awarded the former prisoner $721,000 in compensatory damages and $10,000 in punitive damages.

That result was reached in a lawsuit by former Illinois prisoner Walter Brzowski, which he filed on December 28, 2017. According the complaint, in 2010 Brzowski was convicted and sentenced in two separate criminal cases. In the first case, he received two concurrent one-year sentences and four years of mandatory supervised release (MSR). In the second case, he was sentenced to two concurrent terms of three years and four years MSR. The two sentences were run consecutively for a total of four years and four to eight years of MSR. Brzowski completed his sentences on September 10, 2013 and was released.

Brzowki was arrested on October 1, 2013, for violating his MSR and he returned to the Illinois Department of Corrections (IDOC) on November 29, 2013. He was found not guilty on October 10, 2014, of the offense that triggered his MSR violation. He then filed a habeas corpus petition stating that ...

Eighth Circuit Clarifies Legal Standards for Conditions-of-Confinement Lawsuits Brought by Civilly-Committed Sex Offenders

by Matt Clarke

On February 21, 2021, the United States Court of Appeals for the Eighth Circuit issued an opinion clarifying the legal standards to be applied to lawsuits over conditions of confinement brought by civilly-committed sex offenders (CCSOs).

This is a class-action federal civil rights lawsuit brought under 42 U.S.C. § 1983 by lead plaintiff Kevin Scott Karsjens and 13 other named plaintiffs, all of whom have been committed to the Minnesota Sex Offender Program pursuant to the Minnesota Civil Commitment and Treatment Act: Sexually Dangerous Persons and Sexual Psychopathic Personalities, Minnesota Statute § 253D. The lawsuit initially had ten counts. Count 4 was dismissed and the district court decided to address the remaining counts in two phases, with Counts 1, 2, 3, 5, 6 and 7 in phase one.

Applying the strict scrutiny standard, the court found in the plaintiffs’ favor on Counts 1 and 2, which alleged facial and as-applied due process violations. It issued an injunction without separate relief for Counts 3, 5, 6 or 7. The lead defendant, the Commissioner of the Minnesota Department of Human Services, and the other defendants appealed.

The Eighth Circuit held that the district court had applied an incorrect standard. ...

Prisoner Voting Population Grows as Illinois Bill Extends Polling Sites to County Jails

The push to restrict voting rights and limit access to polling locations has gained momentum in the past several months. Advancing the false claims of excessive fraud and a rigged election by former President Donald Trump, state legislatures across the country have passed laws reducing voting hours, eliminating mail-in ballots, closing polling sites, and other restrictive measures.

Contrary to Republicans’ assertions, these laws adversely affect people of color and those of lower socio-economic status. For instance, some states have prohibited polling sites to open on Sundays when many African Americans traditionally cast ballots after church services.

However, one state is looking to buck this trend by expanding access to polling locations. In June 2021, Illinois Gov. J.B. Pritzker signed into law Senate Bill 825 which allows those who register to vote by mail remain on the list permanently and, more significantly, gives sheriffs the ability to open polling sites at their county jails.

Previously, only the sheriff in Cook County, the state’s largest jail, could establish a polling site at the county’s jail. Now, any county with less than 3 million residents can set up a temporary polling site at their jail.

“With attacks on voting rights on the rise ...

Massachusetts Department of Corrections Sued Over Use of “Fake” Drug Tests on Legal Mail

by Casey J. Bastian

The Massachusetts Department of Corrections (DOC) has been knowingly using drug tests described by plaintiff’s lawyers as “fake” on legal mail to both interfere with attorney/client communications and impose strict punishments without due process. These claims are the basis of a class complaint recently filed by affected prisoners and defense attorneys. “This flawed test has seriously harmed our clients, attorneys, and the attorney-client relationship, and the DOC should immediately stop using it,” said chief counsel Anthony Benedetti.

The tests in question are manufactured by Sirchie Acquisition Company (Sirchie) and distributed by Biotech, Inc (Biotech). The DOC acquired the tests for the purpose of preventing the introduction of contraband through the mail system; chiefly synthetic cannabinoids, which can be sprayed on paper and smoked. Sirchie manufactured the Narcotics Reagent Analysis Kit (NARK) 20023 test and claimed the tests use “crime lab accepted chemistry” designed to “function as a transportable narcotics laboratory.” The problem is that the NARK 20023 tests are fundamentally unreliable. One DOC employee stated that the tests result in false positives “up to 80% of the time.” In 2012, Sirchie issued its “Nark News” brochure that acknowledged it is “almost impossible” to develop a test ...

Seventh Circuit: Local Rules Requiring Specific Filings to Summary Judgments Should Not be Used as a Sanction

by Dale Chappell

Providing an example of how the rules apply to everyone—even pro se prisoners—the US Court of Appeals for the Seventh Circuit upheld the motion of summary judgment (MSJ) by the district court in denying a prisoner’s federal civil lawsuit claiming bad medical care at the Wisconsin Secure Program Facility.

Somehow, Victor Robinson was given the wrong medication and afterwards he passed out and hit his head. How this happened was even more troubling since Robinson wasn’t even on medication. Still, staff directed him to take this medication and he followed their orders. After he was rushed to a local hospital with a closed head injury, he sued prison officials in federal court for “deliberate indifference” to his medical needs. After screening under the Prison Litigation Reform Act, the district court allowed three claims to proceed and ordered prison staff to respond to the lawsuit. That’s where things went south for Robinson.

Prison staff filed a motion for summary judgment, asking the district court to grant judgment in their favor because Robinson’s claims were deficient. Basically, they said that he failed to allege claims that could meet the strict standard for deliberate indifference. Part of the reason staff’s ...

Michigan DOC Eases Up on Pregnant Prisoners, Limits Shackles and Solitary Confinement

by Chuck Sharman

Under a new policy announced on October 19, 2021, pregnant prisoners held by the Michigan Department of Corrections (MIDOC) will be restrained less and will also have more time to spend with their newborns once delivered.

When it takes effect November 22, 2021, the policy change will largely reflect procedures already put in place by MIDOC after a bill was sponsored by state Sen. Erika Greiss (D-Taylor) in 2020 to address concerns that infants were being plucked from their mothers’ arms moments after birth.

“It’s the saddest thing that I have not only heard of, but been through,” said Siwatru-Salama Ra, who gave birth while locked up in 2018 at Women’s Huron Valley Correctional Facility (WHVCF), the state’s only prison for women.

Nine babies have been delivered to WHVCF prisoners in 2021, with two more still expecting, according to MIDOC spokesman Chris Gautz.

The new policy doesn’t promise a new mother 72 hours with her infant, as Greiss’s bill would have guaranteed had it not stalled before reaching a vote in the legislature. But it does say that MIDOC “shall not restrict the prisoner’s contact with the newborn while in their assigned patient room subject to hospital ...

D.C. Federal Court Rules District Providing Unlawfully Inadequate Education to Incarcerated Youth with Disabilities, Grants Preliminary Injunction

by Matt Clarke

On June 16, 2021, a federal court in the District of Columbia (D.C.) provisionally certified a class of disabled youth incarcerated in D.C. jails who were not being provided with the minimal amount of special education and related services required by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400-1482, and issued a preliminary injunction requiring D.C. to provide them all the special education and related services mandated by their Individualized Education Programs (IEPs) through counselor- or ­teacher-led group classes or one-on-one in person or videoconference sessions.

The D.C. jail prisoners enrolled in the Inspiring Youth Program (IYP) filed a federal class-action civil rights lawsuit pursuant to the IDEA and other federal laws alleging they and about 60 other IYP students were being denied the free and appropriate public education (FAPE) mandated by the IDEA.

The IEP is the primary tool for implementing the IDEA. To create an IEP, the disabilities and educational and support needs of an individual are assessed and a plan created to provide a FAPE. For instance, Charles H. has a specific learning disability and attention deficit/hyperactivity disorder (ADHD) that inhibits his progress in math and English. His IEP mandates 20 ...

Prison Officials Actions to Correct Inhumane Cell Conditions Merit Judgement in Their Favor

The Seventh Circuit Court of Appeals affirmed an Illinois district court’s summary judgment dismissal of a prisoner’s claim that he was subjected to inhumane conditions and denial of medical care. The Court’s ruling found that the defendants were not deliberately indifferent to the conditions the prisoner alleged.

The court’s June 28, 2021, opinion was issued in an appeal brought by Illinois prisoner Adrian Thomas. He sued several officials at Pontiac Correctional Center.

Thomas alleged that on October 24, 2017, he was moved to a new cell, and its conditions were disgusting. He claimed there were feces, urine, and mold smeared on the walls, sink, and cell door. The mattress was soiled with feces and reeked of urine, over 100 dead flies were on the bunk bed, and the sink emitted only cold, black, and oily water.

Prison officials responded to Thomas’s grievances. After about two weeks, he was given a new mattress, they said. Thomas admitted he used his sheets and blanket to avoid contact with the soiled mattress. He was also given a towel and disinfectant during his eight-week stay in the cell to clean the filth away. The feces stayed in the cell because, as Thomas indicated, he ...

Lawsuit Over Denial of Medical Treatment for Painful Erection Causing Impotence in Oklahoma County Jail Reinstated by Tenth Circuit

by Matt Clarke

On January 19, 2021, the United States Court of Appeals for the Tenth Circuit held that a county sheriff and three jail guards were not entitled to summary judgment based on qualified immunity in a lawsuit brought by a former jail prisoner who suffered permanent impotence after being denied medical treatment for a persistent, painful erection that lasted three days

Dustin Lance was incarcerated at the Pittsburg County jail in McAlester, Oklahoma when he took a pill he got from another prisoner. He awoke the next morning with an erection that would not subside, a medical condition known as priapism. He reported this via intercom to guard Edward Morgan, who said he would put Lance in lockdown for taking the pill, but did nothing. Over the next three days, he made increasingly urgent requests for medical care to other guards, including Mike Smead, Dakota Morgan, and Daniel Harper. He even showed Smead his painfully engorged penis two days after he took the pill, but Smead did not mention it to the jail’s nurse until the next day.

When the nurse asked him why he did not report the priapism sooner, Smead told her, “I thought he was ...

$129,000 Bench Verdict for BOP Prisoner in Failure to Warn of Valley Fever

A California federal district court awarded a federal prisoner $128,624.01 in damages in a lawsuit alleging officials at Federal Correctional Institute (FCI) Safford in Arizona failed to warn him about Valley Fever.

The Court’s July 23, 2021, order was issued following a two-day bench trial that occurred in January 2020. Prisoner Oscar Sandoval sued under the Federal Tort Claims Act. The United States moved to dismiss after the trial, asserting Sandoval was barred from recovery under the Inmate Accident Compensation Act, which is the exclusive remedy for work-related injuries. The Court granted the motion in part by prohibiting recovery for any injuries Sandoval as a result of not being provided a protective mask as an orderly at the prison. It denied the motion as to injuries he incurred as a result of Sandoval’s failure to warn claim.

The Court’s order detailed the facts presented at trial. It found that the Bureau of Prisons (BOP) had a duty to warn prisoners of hazards at their prison. It further found that officials at FCI Stafford breached that duty.

Valley Fever, or Coccidioides immitis and Coccidioides posadasii (Cocci), is in the area surrounding FCI Stafford. It is a naturally occurring soil fungus, which ...

CoreCivic Prison at Center of Georgia Drug Trafficking Investigation

Jessica “The Madam” Burnett is set to plead guilty to a series of charges which included conspiracy to distribute methamphetamines and marijuana as part of a major drug trafficking investigation covering several southern Georgia counties and correctional facilities.

Burnett was a sergeant at the Core­Civic-run private prison, the Coffee County Correctional Facility. At 41 years of age, charges stated that Burnett smuggled drugs, cell phones, and other items into the prison for gang members.

She and 47 other defendants were caught up in Operation Sandy Bottom begun in 2018 when the Coffee County Sheriff’s Office asked for assistance from the Federal Bureau of Investigation and the Coastal Georgia Violent Gang Task Force to address the growing drug problem in the Sandy Ridge neighborhood of Douglas, Georgia. The indictment was unsealed January 2021 and alleged 129 total charges against the defendants.

Police stated that the drug ring was run by the Gangster Disciples, expanded across Coffee, Bacon, Emmanuel, Jeff Davis, Pierce, and Wheeler counties in Georgia and was coordinated by members of the gang in the state prison system.

Burnett faces up to 20 years in prison for her crimes. She and a second guard, Idalis Harrell, both are pleading guilty ...

Sixth Circuit Holds Court Lacked Jurisdiction to Rule on Summary Judgment in Retaliation Suit by BOP Prisoner

Walter Himmelreich was a prisoner at the Federal Correctional Institution in Elkton, Ohio for one count of producing child pornography on October 20, 2008, when he was assaulted by another prisoner, Peter Macari, due to the nature of his charge. Himmelreich stated that Captain Janel Fitzgerald retaliated against him when he filed a complaint about the attack and had him placed in protective custody. He filed a series of actions against Fitzgerald and the federal Bureau of Prisons (BOP) relating to violations of his First and Eighth Amendment rights. The Sixth Circuit Court of Appeals ruled on July 22, 2021, that the Court lacked jurisdiction. The appeal was dismissed and all fees were waived.

Macari was known as an antagonist who had violent hate for pedophiles. He was being released from confinement even though he had made several threatening comments about hurting a child molester when he got out. The day he was released he attacked Himmelreich. Himmelreich was then threatened with a transfer if he complained by Fitzgerald. On March 5, 2009 Himmelreich was placed in protective custody “without explanation,” he stated.

On October 20, 2008 Himmelreich filed a complaint stating several claims relating to the assault. It was ...

Fifth Circuit Holds Defendants Entitled to Sovereign Immunity For Denial of Sex-Reassignment Surgery to Texas Prisoner

by Matt Clarke

On July 30, 2021, the United States Court of Appeals for the Fifth Circuit vacated orders denying sovereign immunity to some defendants in a lawsuit brought by a transgender Texas prisoner seeking access to sex-reassignment surgery, female commissary items, and a long-hair pass.

Texas Department of Criminal Justice (TDCJ) prisoner David Allen Haverkamp, also known as Bobbie Lee Haverkamp, was diagnosed with gender dysphoria. Dr. Walter Meyer prescribed a 12-month course of hormone therapy and said sex-reassignment surgery was available. Haverkamp requested the surgery. Meyer later said the University of Texas Medical Branch (UTMB), in its provision of medical services to TDCJ prisoners, “is going to have to face the inevitable that gender reassignment surgery is going to happen.” But, near the end of the hormone therapy, Meyer met with him and told him “very plainly that TDCJ would not pay for surgery.”

Haverkamp filed a federal civil rights lawsuit alleging violations of the Equal Protection Clause because biological women prisoners were given medical necessary care that included vaginoplasty and Haverkamp was refused similar, sex-reassignment surgery.

The lawsuit was initially filed against a physician and Dr. Lannette Linthicum, Director of TDCJ’s Health Services Division and a member ...

California Fire Crew Prisoner’s Escape Attempt Leaves Trail of Destruction

A California prisoner who tried to escape in a stolen fire truck left “half a block of destruction.” He was caught shortly after he tried to carjack another vehicle.

On July 5, 2021, the prisoner was working on the scene of a brush fire with a crew of prisoners and fire fighters with the California Department of Forestry and Fire Protection. The 31-year-old prisoner, Cameron Zoltan Horvath, stole an all-wheel-drive wildland firefighting engine in his attempt to flee custody. He, however, “can’t drive,” said California Highway Patrol Sgt. Dave Varao.

The prisoner drove through a fence and in onto the nearby Rack-It Truck Racks property where he rammed into one if the business’s vehicles, a tree, and another fence. He then jumped a curb and became stuck in a ditch. The prisoner, who officials did not identify, then ran back onto the Rack-It property and attempted to carjack an employee’s vehicle as they were leaving. They fought, but the employee ran back to the business and locked himself in.

The prisoner ran back the way he’d come and was caught. “He basically made a loop—he didn’t do a very good job of getting away,” said Bill Wilde, who lived in ...

$5,000 Award for Pro Se Florida DOC Prisoner in Unjustified Pepper Spraying

A Florida federal district court awarded $5,000 to a prisoner on September 16, 2020, for a guard’s use of excessive force.

While at Everglades Correctional Institution, Florida prisoner Mazzard B. McMillian and other prisoners were found in the wrong dormitory during a prison count. As they were being escorted to confinement, Colonel Patrick Riggins ordered all of the prisoners to get on the ground.

McMillian complied with the orders, did not resist, and held his hands behind his back. Despite his compliance, Riggins pepper sprayed McMillian. Riggins and another guard dragged McMillian from outside the confinement area onto the grass and then to a shower. McMillan’s complaints of trouble breathing and seeing were ignored and he was placed in a cell.

The Florida Department of Corrections conducted an investigation and Riggins was terminated. He was also criminally charged. He pleaded guilty to battery on an inmate and a charge of falsifying an official record was dismissed. He was sentenced to 100 hours of community service, a $100 fine, and an anger management class.

For his part, McMillian sued Riggins and several other officials.

The claims against Assistant Warden Herin were dismissed after a settlement was reached. McMillian moved for a ...

Forced Shaving of Muslim Colorado Prisoner’s Beard Unconstitutional

by David M. Reutter

The Tenth Circuit Court of Appeals reversed the dismissal of a Colorado prisoner’s 42 U.S.C. § 1983 action alleging a guard violated his First and Fourteenth Amendment rights by forcing him to shave off his beard. The court found the prisoner’s complaint stated a claim and the guard was not entitled to qualified immunity.

The Court’s August 10, 2021 opinion was issued in an appeal by prisoner Tajuddin Ashaheed. He has practiced Islam for decades, following the Sunnah practice of leaving one’s beard to grow. He believes that shaving his beard would violate a core tenet of his faith.

The Colorado Department of Corrections (CDOC) was well aware of Ashaheed’s beliefs. While serving a sentence in 1993, he signed a declaration of religious affiliation documenting his faith. He was allowed to grow a beard while serving that sentence. He was also allowed to wear a beard while serving a sentence in 2014 until his March 2016 parole.

He arrived at CDOC’s Denver Reception and Diagnostic Center to serve a short sentence for a parole violation. An intake officer verified Ashaheed’s religious affiliation and updated his file to reflect Muslim adherence. Once the intake process was complete, ...

Oregon Suspends Outside Prisoner Work Crews After Prisoner Escape Sparks International Incident

by Mark Wilson

On September 22, 2021 Oregon prison officials suspended outside prisoner work crews “in order to review any potential changes following a walk away earlier this year” according to an internal memo sent by Oregon Department of Corrections (ODOC) Director Colette Peters and Deputy Director Heidi Steward.

The pause comes in the wake of a high-profile international incident. Fourteen-time felon, Jedaiah Lunn, 36, was incarcerated at the South Fork Forest Camp, a 200-bed minimum-security prison on the Oregon coast operated by ODOC and the Oregon Department of Forestry. While on a work crew at the Gales Creek Campground on April 14, 2021, Lunn walked away, accosted two women who are Japanese nationals, brutally beating them with a large stick, and severely injuring both of them. He then stole their car. Later that day he was caught and arrested. Lunn faces multiple charges, including attempted murder, first-degree assault, first-degree robbery and escape. 

The incident prompted angry Japanese government officials to write Oregon Governor Kate Brown demanding answers. After taking several months to respond, Brown initially stood by the program. The Forest Camp has “largely been successful” Brown wrote to a Japanese diplomat.

Of course, the program’s success was little ...

Broward County Florida Sheriff Rejects Independent Reviews of Detainee’s Death

Florida’s Broward County Sheriff’s Office (BSO) has refused overtures to allow an independent investigation into the death of a pretrial detainee.

Kevin Desir, 43, lost consciousness during a January 17, 2021, confrontation with guards at the Broward County Jail (BCJ). He died ten days later. Desir was in jail on charges of marijuana possession and criminal mischief.

It was known that Desir had a history of mental health issues, including bi-polar disorder. The Sun Sentinel reported that the confrontation occurred while Desir was having “an apparent mental health episode” at BCJ. Public Defender Gordon Weekes has been critical about how BSO handles detainees with mental health issues.

No further details of the confrontation, which was captured on video, have been made public. A private doctor and members of Desir’s family have been allowed to view the video of the encounter. They are under a strict gag order to not release any details of what the video contains.

Desir’s autopsy report lists the cause and manner of death as “undetermined.” His family and attorneys are waiting for the Broward Medical Examiner’s office to provide complete information for their expert to review.

In February 2021, Broward State Attorney Harold Pryor sent a ...

$170,000 Settlement By New Jersey DOC in Transgender Lawsuit With New Policy

by Jayson Hawkins

The New Jersey Department of Corrections had a policy of housing prisoners according to their gender assignment at birth, regardless of whether they are transgendered or of any non-binary sexual orientation. As a result, when Sonia Doe (not her real name) was sentenced to prison, she was sent to a male prison in 2018, even though she had publicly lived as a woman since 2003.

From March 2018 to August 2019, Doe was housed in four different men’s prisons, subjected to strip searches by male guards, lived constantly under the threat of sexual assault by other prisoners, and was repeatedly ridiculed and harassed by prison staff.

The New Jersey Department of Corrections (NJDOC) operated a policy for transgender and intersex prisoners based on the mandates of the federal Prison Rape Elimination Act (PREA) and state legislation. This policy mandated identifying prisoners in these categories, assessing their risk level, addressing them with proper pronouns, and housing them in a manner consistent with their safety and the general security of the institution.

What Doe encountered when she was processed into NJDOC was not at all consistent with the department’s stated policy. She was asked questions related to gender identity, ...

$8.6 Million Award Against Wexford for Deliberate Indifference to Prisoner’s Kidney Cancer

An Illinois prisoner was awarded $11 million by a federal jury in a lawsuit alleging doctors with Wexford Health Sources, Inc. (Wexford), were deliberately indifferent to his serious medical needs by failing to treat his kidney cancer. The Court also awarded $667,201.45 in attorney fees and costs.

The award was the result of a December 2019 jury trial in which the jury found Wexford, Dr. Abdur Nawoor, and Dr. Rebecca Einwohner failed to act reasonably when William Kent Dean, a prisoner at Taylorville Correctional Center presented that he had painless blood in his urine. Dean pursued, with the assistance of pro bono counsel, claims arising from alleged delays in the diagnosis and treatment of his kidney cancer.

The jury awarded Dean $100,000 for physical pain and suffering, $500,000 for emotional pain and suffering, $100,000 for disability and loss of normal life/diminished life expectancy, and $300,000 for future medical care and supplies. It also awarded $10 million in punitive damages to punish Wexford for its reprehensible conduct..

In reviewing the Defendants’ motion for judgment in their favor or a new trial or to reduce damages and a set off, the district court said in a September 28, 2020, order that the ...

Arizona Federal Court Dismisses NAACP’s Challenge to Private Prisons as Violating Thirteenth Amendment by Commodifying Prisoners for Profit

An Arizona federal court dismissed a civil rights complaint brought in June 2020 by the Arizona State Conference of the National Association for the Advancement of Colored People (NAACP) under the novel theory that, by commodifying people for profit, the state’s contract with private prison companies created a form of slavery prohibited by the Thirteenth Amendment as well as more conventional challenges based on alleged Eighth and Fourteenth Amendment violations.

Jeffey Nielsen, Larry Hilgendorf, Terry Browness, Joseph Bulen, and Brian Boudreaux are Arizona state prisoners being held in privately-operated prisons pursuant to contracts between various private prison companies and the Arizona Department of Corrections, Rehabilitation & Reentry (ADCRR). They and the NAACP filed a class action complaint for themselves and other ADCRR prisoners held in private prisons, alleging the use of prisoners as fungible assets and commodities for profit created of a form of prohibited slavery, constituted cruel and unusual punishment, and violated due process and equal protection rights.

In an order filed March 8, 2021, the court held that the plaintiffs had not alleged any facts showing that those held in private prisons are forced to perform labor in keeping with traditional notions of slavery or involuntary servitude. It ...

Fifth Circuit Holds Confessed Medical Malpractice Does Not Insulate Prison Medical Providers From Finding of Deliberate Indifference

by Matt Clarke

On August 11, 2021, the United States Court of Appeals for the Fifth Circuit held that a confession of medical malpractice by prison health care providers does not prevent a district court from finding deliberate indifference. In affirming the district court’s denial of defendants’ motion for summary judgment, the court also emphasize that giving a prisoner some treatment that is ineffective also does not prevent a finding of deliberate indifference.

Laree Spikes was incarcerated at the Rayburn Correctional Center in Angie, Louisiana, when he injured himself while lifting weights, causing a lasting sharp pain in his hip and right groin area and an inability to move his right leg. Unable to walk, he declared a medical emergency and arrived at the infirmary in a wheelchair. There he was seen by Nurse Paula Stringer.

Stringer assessed the injury as a pulled muscle in the right groin area and, in accordance with the standing orders of Dr. Casey McVea, the prison’s medical director, ordered an analgesic balm, ibuprofen and ice for Spikes.

Spikes returned to the infirmary in a wheelchair five days later, complaining of continued, intense and spreading pain and no relief from the treatments. Stringer ordered ibuprofen ...

$23,000 Settlement Against Pennsylvania Dental Healthcare Company for Inadequate Dental Care

Charles Talbert settled with Correctional Dental Associates (CDA) and Dental Practitioner Dr. Schneider for $23,000 in a lawsuit brought by him for inadequate dental treatment while housed in the Philadelphia Department of Prisons (PDP).

While being held in the PDP, Talbert requested extensive dental work to repair his damaged and decaying teeth. He stated in his recent suit that CDA, Schneider, and other dentists (Dr. Young and Dr. Patel) were aware of his need for anesthesia during treatment due to his innate fear of needles. This phobia he stated was well documented on requests, sick call slips, grievances, and previous lawsuits. Nonetheless, CDA dentists ignored Talbert’s phobia and attempted to proceed with his dental surgery without anesthesia.

Talbert claimed that this was deliberate and malicious. He stated that CDA dentists violated his civil rights by not consulting with his previous physician concerning his condition and phobia, continuing with a standard of care that did not meet prevailing practices in the dental community, and failing to properly evaluate which teeth needed extraction and which did not.

He also stated that the dentists were retaliating against him for previous grievances and lawsuits he has filed. They ignored his medical needs as established ...

News in Brief

California: A guard at San Quentin State Prison and one of two outside co-conspirators were arraigned on September 8, 2021, on federal charges they smuggled cellphones to an unnamed prisoner on death row at the California lockup. According to a statement by the U.S. Department of Justice, the condemned man had a relationship with the other co-conspirator, 45-year-old Tanisa Smith-Symes of Las Vegas, who was arraigned the following day. The guard, 37-year-old Keith Christopher of Pittsburg, California, allegedly accepted a $500 bribe for each of at least 25 cellphones he smuggled into work with him and passed to the prisoner. Christopher got the cash and phones from 32-year-old Isaiah Wells of Tracy, California, the other indicted co-conspirator, who served as a go-between for Smith-Symes. Once her boyfriend inside the prison received the contraband, he allegedly resold the phones to other prisoners for up to $900 each.

California: A prison store supervisor at California’s High Desert State Prison was arrested on September 19, 2021, after he allegedly shot another off-duty prison employee in nearby Susanville. The suspect, 63-year-old Kenneth Hunter, was placed on leave and charged with felony attempted homicide, according to a report by the Sacramento Bee. A post on ...