Case 2:15-cv-02245-BSB Document 1 Filed 11/06/15 Page 1 of 24

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

1 Lisa Ells – Cal. Bar No. 243657*
Jenny S. Yelin – Cal. Bar No. 273601*
2 ROSEN BIEN GALVAN &
GRUNFELD LLP
3 50 Fremont Street, 19th Floor
San Francisco, California 94105-2235
4 Telephone: (415) 433-6830
Facsimile: (415) 433-7104
5 lells@rbgg.com
jyelin@rbgg.com
6
Lance Weber – Fla. Bar No. 104550*
7 Sabarish Neelakanta – Fla. Bar No. 26623*
HUMAN RIGHTS DEFENSE CENTER
8 Post Office Box 1151
Lake Worth, Florida 33460-1151
9 Telephone: (561) 360-2523
Facsimile: (866) 735-7136
10 lweber@humanrightsdefensecenter.org
sneelakanta@humanrightsdefensecenter.org
11
12 David J. Bodney
bodneyd@ballardspahr.com
13 Heather Todd Horrocks
horrocksh@ballardspahr.com
14 BALLARD SPAHR LLP
1 East Washington Street, Suite 2300
15 Phoenix, AZ 85004-2555
Telephone: 602.798.5400
16 Facsimile: 602.798.5595
17 * Pro Hac Vice applications to be filed
forthwith
18
Attorneys for Plaintiff Prison Legal News
19
IN THE UNITED STATES DISTRICT COURT
20
21

FOR THE DISTRICT OF ARIZONA

22 Prison Legal News, a project of the Human
Rights Defense Center,
23
Plaintiff,
24
v.
25
Charles L. Ryan, in his official capacity as
26 Director of the Arizona Department of
Corrections and in his individual capacity;
27 Gail Rittenhouse, in her official capacity as
Division Director, Support Services of the
28 Arizona Department of Corrections and in
her individual capacity; Jeff Hood, in his
DMWEST #13240601 v1

NO. __________
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF AND
DAMAGES UNDER THE CIVIL
RIGHTS ACT, 42 U.S.C. § 1983
JURY TRIAL DEMANDED

Case 2:15-cv-02245-BSB Document 1 Filed 11/06/15 Page 2 of 24

1 official capacity as Deputy Director of the
Arizona Department of Corrections and in
2 his official capacity; Alf Olson, in his
official capacity as an employee of the
3 Office of Publication Review of the Arizona
Department of Corrections and in his
4 individual capacity; and Does 1 to 20,
inclusive,
5
Defendants.
6
7
8
9
10

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11
12
13
14
15
16
17
18
19
20
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27
28
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INTRODUCTION

1
2

1.

Plaintiff PRISON LEGAL NEWS (“PLN” or “Plaintiff”), a project of the

3 Human Rights Defense Center, brings this action regarding Defendants’ censorship of
4 four issues of its monthly publication mailed to prisoners in the Arizona Department of
5 Corrections (“ADC”), in violation of PLN’s clearly established rights under the First and
6 Fourteenth Amendments to the United States Constitution. Defendants have adopted and
7 implemented mail policies and a pattern of practices that unconstitutionally prevent
8 distribution of PLN’s eponymously named monthly publication. The censored issues
9 contain articles that include non-salacious descriptions of sexual activity to make clear
10 the factual basis for legal cases of interest to PLN’s readers. In particular, Defendants

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11 refuse to deliver issues of PLN’s monthly publication to subscribers in ADC facilities
12 when those issues contain articles describing sexual contact between jail or prison guards
13 and prisoners to which the prisoners did not consent.
14

2.

Defendants’ mail policies and practices also do not afford constitutionally

15 adequate notice and an opportunity to challenge Defendants’ censorship, in violation of
16 PLN’s right to due process. Defendants’ actions violate PLN’s rights and the rights of
17 others under the First Amendment and the Due Process Clause of the Fourteenth
18 Amendment.

PLN thus brings this action, pursuant to 42 U.S.C. § 1983, seeking

19 injunctive and declaratory relief, and damages to be proven at trial.
JURISDICTION AND VENUE

20
21

3.

This action arises under the First and Fourteenth Amendments to the United

22 States Constitution and is brought pursuant to 42 U.S.C. § 1983. This Court has subject
23 matter jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343. The Court has
24 jurisdiction to grant declaratory relief pursuant to 28 U.S.C. § 2201 and Fed.R.Civ.P. 57.
25

4.

Venue is proper in the District of Arizona under 28 U.S.C. § 1391(b)(2)

26 because substantial acts and omissions giving rise to the claims occurred in this District,
27 including Defendants’ implementation of the challenged mail policies and practices, and
28 because Defendants reside in this District.
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PARTIES

1
2

5.

Plaintiff PRISON LEGAL NEWS is a project of the Human Rights

3 Defense Center, a Washington non-profit corporation. PLN publishes a 72-page monthly
4 journal of corrections news and analysis called Prison Legal News, and distributes books
5 about the criminal justice system and legal issues affecting prisoners to prisoners,
6 lawyers, courts, libraries, and the public throughout the country.
7

6.

The Defendants listed below are sued in their official capacities only for

8 equitable relief as to each and every violation of federal rights alleged in this complaint.
9 Defendants are also sued in their individual capacities for damages.
10

7.

Defendant CHARLES L. RYAN (“RYAN”) is, and at all relevant times

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11 herein mentioned was, the Director of the ADC, the state agency that manages the
12 correctional facilities within the State of Arizona.

Defendant RYAN has ultimate

13 responsibility for the promulgation and implementation of ADC policies, procedures, and
14 practices and for the management of the ADC. As to all claims presented herein against
15 him, Defendant RYAN is being sued in his individual capacity for damages, and in his
16 official capacity for injunctive and declaratory relief. At all relevant times, Defendant
17 RYAN has acted under color of state law.
18

8.

19 mentioned

Defendant GAIL RITTENHOUSE is, and at all relevant times herein
was,

Division

Director,

Support

Services

of

ADC.

Defendant

20 RITTENHOUSE is responsible for the promulgation and implementation of policies,
21 procedures, and practices at the ADC. As to all claims presented herein against her,
22 Defendant RITTENHOUSE is being sued in her individual capacity for damages, and in
23 her official capacity for injunctive and declaratory relief.

At all relevant times,

24 Defendant RITTENHOUSE has acted under color of state law.
25

9.

Defendant JEFF HOOD is, and at all relevant times herein mentioned was,

26 Deputy Director of ADC. Defendant HOOD is responsible for the promulgation and
27 implementation of policies, procedures, and practices at the ADC. As to all claims
28 presented herein against him, Defendant HOOD is being sued in his individual capacity
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1 for damages, and in his official capacity for injunctive and declaratory relief. At all
2 relevant times, Defendant HOOD has acted under color of state law.
3

10.

Defendant ALF OLSON is, and at all relevant times herein mentioned was,

4 an ADC employee who worked or works in the Office of Publication Review. Defendant
5 OLSON is responsible for the promulgation and implementation of policies, procedures,
6 and practices at the ADC. As to all claims presented herein against him, Defendant
7 OLSON is being sued in his individual capacity for damages associated with clearly
8 established federal rights, and in his official capacity for injunctive and declaratory relief.
9 At all relevant times, Defendant OLSON has acted under color of state law.
10

11.

The names and capacities of the persons sued as DOES 1 to 20, inclusive,

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11 herein are unknown to Plaintiff at this time. Each of Defendants DOES 1 through 20 is
12 or was employed by and is or was an agent of ADC when some or all of the challenged
13 prisoner mail policies and practices were adopted and/or implemented.

Each of

14 Defendants DOES 1 through 20 is or was personally involved in the adoption and/or
15 implementation of the ADC’s mail policies for prisoners, and/or is or was responsible for
16 the hiring, screening, training, retention, supervision, discipline, counseling, and/or
17 control of the ADC staff who interpret and implement these prisoner mail policies. Each
18 of Defendants DOES 1 through 20 is or was acting under color of state law. Each of
19 Defendants DOES 1 through 20 is sued in his or her individual capacity for damages and
20 his or her official capacity for injunctive and declaratory relief. PLN will seek to amend
21 this Complaint as soon as the true names and identities of Defendants DOES 1 through
22 20 have been ascertained.
23

12.

Each and every act and omission alleged herein of Defendants, their

24 officers, agents, servants, employees, or persons acting at their behest or direction, were
25 done and are continuing to be done under the color of state law and within the scope of
26 their official duties as officers, employees or agents of the ADC. Each Defendant was or
27 is an agent of each other Defendant in committing the unconstitutional acts alleged in this
28 complaint.
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FACTUAL BACKGROUND

1
2

13.

Plaintiff PRISON LEGAL NEWS publishes and distributes Prison Legal

3 News: Dedicated to Protecting Human Rights, a monthly journal of corrections news and
4 analysis. PLN also publishes and distributes paperback books about the criminal justice
5 system and legal issues impacting prisoners.
6

14.

Prison Legal News has thousands of subscribers in the United States and

7 abroad, including prisoners, attorneys, journalists, public libraries, judges, and other
8 members of the public. PLN distributes its publication to prisoners and law librarians in
9 approximately 2,600 correctional facilities across the United States, including institutions
10 within the Federal Bureau of Prisons and all of the adult prisons of the California

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11 Department of Corrections and Rehabilitation.
12

15.

PLN also distributes approximately fifty (50) different books about the

13 criminal justice system, legal reference books, and self-help books of interest to
14 prisoners. These books are designed to foster a better understanding of criminal justice
15 policies and to allow prisoners to educate themselves about related issues, such as legal
16 research, how to write a business letter, health care issues, and similar topics.
17

16.

Plaintiff’s organizational purpose, as stated in its Articles of Incorporation,

18 is to disseminate legal information on issues affecting prisoners and their loved ones on
19 the outside and to educate prisoners and the public about the destructive nature of racism,
20 sexism, and the economic and social costs of prisons to society, among other purposes.
21

17.

For more than 25 years, the core of PLN’s mission has been public

22 education, advocacy and outreach on behalf of, and for the purpose of assisting, prisoners
23 who seek legal redress for infringements of their constitutionally guaranteed and other
24 basic human rights. PLN’s mission, if realized, has a salutary effect on public safety.
25

18.

PLN engages in core protected speech and expressive conduct on matters of

26 public concern, such as the operations of corrections facilities, jail and prison conditions,
27 prisoner health and safety, and prisoners’ rights. PLN regularly receives correspondence
28 from prisoners in correctional facilities around the country, including ADC prisons, in
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1 which they ask questions and report on jail or prison conditions.
2

19.

Currently, PLN has ninety-seven (97) subscribers to its monthly publication

3 at ADC facilities. Despite ADC’s recent censorship of issues of Prison Legal News, PLN
4 continues to pursue its mission to promote public safety through educational and
5 journalistic avenues by sending its monthly publication to prisoners confined at ADC
6 prisons.
Overview of Censorship and Lack of Due Process

7
8

20.

Until approximately March 2014, ADC prisoners who subscribed to Prison

9 Legal News or ordered other publications from PLN generally received those publications
10 without incident.

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11

21.

Beginning in March 2014, Defendants began refusing to deliver certain

12 issues of Prison Legal News to prisoner subscribers in the custody of ADC with more
13 consistency. In particular, Defendants refused to deliver the March 2014, April 2014,
14 July 2014, and October 2014 issues of Prison Legal News.
15

22.

Defendants did not return the censored issues of Prison Legal News to

16 PLN, nor did they provide any notice to PLN of their refusal to deliver the issues. PLN
17 only learned of the censorship from its subscribers.
18

23.

After PLN notified Defendant RYAN, the director of ADC, on February 6,

19 2015 of the unlawful censorship of Prison Legal News in ADC facilities and of
20 Defendants’ failure to provide due process to PLN, Defendants reconsidered some of
21 their censorship decisions. But to date, Defendants have still not delivered the full,
22 uncensored version of the October 2014 issue of Prison Legal News, and some prisoner
23 subscribers never received copies of the other three previously censored issues that
24 Defendants ultimately agreed to deliver after PLN protested the censorship.
25

24.

Moreover, in its February 6, 2015 letter to Defendants, PLN asked

26 Defendants to identify all issues of Prison Legal News that it censored from March 2014
27 to February 2015. Defendants informed PLN about three of the four issues they had
28 censored, but never informed PLN that they censored the March 2014 issue. As alleged
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1 infra, PLN later confirmed Defendants’ censorship of the March 2014 issue from another
2 source.
3

25.

ADC’s mail policies (a true and correct copy of which are attached hereto

4 as Exhibit A) state that publications are “prohibited” in ADC facilities if they contain,
5 inter alia, “depictions or descriptions that incite, aid, or abet riots, work stoppages, or
6 means of resistance,” or “pictures, photographs, illustrations, text or other content that
7 may encourage unacceptable sexual or hostile behaviors, or creates a hostile environment
8 for volunteers, including but not limited to sexual representations of inmates, law
9 enforcement, military, professional medical staff, teachers and Clergy.” Exhibit A, ADC
10 DO 914.08, Policy Numbers 1.1.1; 1.1.18. ADC policies also prohibit publications with

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11 “sexually explicit material,” which is defined as “publications that contain any of the
12 following acts and behaviors either visually, written, or in audio (non-lyric) form: (1)
13 Physical contact by another person with a person’s unclothed genitals, pubic area,
14 buttocks, or if such a person is a female, breast; (2) Sadomasochistic abuse; (3) Sexual
15 intercourse, vaginal or anal, fellatio, cunnilingus, bestiality or sodomy; (4) Masturbation,
16 excretory functions, and lewd exhibition of the genitals; (5) Incestuous sexual activity;
17 (6) Sexual activity involving an unwilling participant, or a participant who is the subject
18 of coercion, or any sexual activity involving children.” Exhibit A, ADC DO 914.07,
19 Policy Number 1.2.
20

26.

Defendants’ policies do not contain an exception permitting delivery of

21 publications that describe sexual acts in a non-salacious way as part of an article
22 reporting on the facts of a court case or published legal decision, such as the articles in
23 the issues of Prison Legal News that Defendants censored.
24

27.

Plaintiff is informed and believes and thereon alleges that ADC’s

25 censorship policies and practices are widespread. In addition to their censorship of
26 Prison Legal News, Defendants have also recently refused to deliver issues of
27 publications such as Bloomberg Business, The Economist, National Geographic, and
28 Newsweek to prisoner subscribers in ADC facilities.
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1

28.

Plaintiff is informed and believes and thereon alleges that Defendants’

2 policies and practices continue to deprive publishers such as PLN of any notice or
3 opportunity to appeal when their publications are not delivered to prisoner subscribers.
Censorship of March 2014 Issue of Prison Legal News

4
5

29.

On or about March 10, 2014, PLN mailed its March 2014 Prison Legal

6 News publication to ninety-seven (97) of ADC prisoners in Defendants’ custody at the
7 following ADC facilities: Arizona State Prison-Kingman; ASPC Aspen; ASPC Douglas;
8 ASPC Eyman-Browning; ASPC Eyman-Cook; ASPC Eyman-Meadows; ASPC Eyman9 Rynning; ASPC Eyman-SMU; ASPC Florence Central; ASPC Florence East; ASPC
10 Florence North Unit; ASPC Florence South; ASPC Lewis-Barchey; ASPC Lewis-

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11 Buckley; ASPC Lewis-Rast; ASPC Lewi-Stiner; ASPC Perryville-Lumley; ASPC
12 Perryville-San Pedro; ASPC Perryville-Santa Cruz; ASPC Santa Maria; ASPC Tucson13 Cimarron; ASPC Tucson-Manzanita; ASPC Tucson-Rincon; ASPC Tucson-Winchester;
14 ASPC Winslow; ASPC Yuma-Cheyenne; ASPC Yuma-Cibola; ASPC Yuma-Dakota;
15 Central Arizona Correctional Institute; Central Arizona Correctional Facility; and
16 Florence Correctional Center.

A true and correct copy of the March 2014 issue is

17 attached hereto as Exhibit B.
18

30.

Plaintiff is informed and believes and thereon alleges that many of the

19 prisoner subscribers incarcerated at the ADC facilities did not receive the March 2014
20 issue of Prison Legal News. Several subscribers in ADC facilities wrote to Plaintiff to
21 notify it that they did not receive the March 2014 issue, and/or sent Plaintiff copies of
22 notices they received from Defendants informing them that the March 2014 issue was
23 being withheld for purportedly violating Defendants’ mail policies.
24

31.

PLN has never received any notice from Defendants that the March 2014

25 issue, or any article in it, would not be delivered or was not delivered to the addressed
26 recipients, even after PLN asked Defendants to identify all issues of Prison Legal News
27 from March 2014 to February 2015 that were censored in ADC facilities.
28

32.

In 2015, the American Civil Liberties Union (“ACLU”) submitted a request

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1 pursuant to the Arizona Public Records Law, Ariz. Rev. Stat. §§ 39-121 et seq. to the
2 ADC. The ADC, in response, produced to the ACLU a copy of an ADC “Notice of
3 Result-Publication Review” dated May 9, 2014 (“May 9, 2014 Notice”), which excluded
4 the March 2014 issue of Prison Legal News from distribution in ADC facilities. A true
5 and correct copy of that notice is attached hereto as Exhibit C.
6

33.

The May 9, 2014 Notice states that the March 2014 issue of Prison Legal

7 News was excluded because of “Riots/Work Stoppages/Resistance,” and “Unacceptable
8 Sexual or Hostile Behaviors,” and cites to Department Order (“DO”) 914.08, Policy
9 Numbers 1.1.1 and 1.1.18 (see Exhibit A). The Notice does not specify which article(s)
10 or page(s) of the March 2014 issue of Prison Legal News purportedly violated those

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11 policies.
12

34.

There are no articles in the March 2014 issue of Prison Legal News which

13 “incite, aid, or abet riots, work stoppages, or means of resistance,” or that “may
14 encourage unacceptable sexual or hostile behaviors.” Exhibit A, DO 914.08, Policy
15 Numbers 1.1.1 and 1.1.18.
16

35.

Plaintiff is informed and believes and thereon alleges that the article in the

17 March 2014 issue to which Defendants objected is on page 54 of the issue, and is entitled
18 “Ninth Circuit Holds Staff Sexual Abuse Presumed Coercive; State Bears Burden of
19 Rebutting Presumption.” See Exhibit B at 54. The article describes the facts underlying
20 a Ninth Circuit reported decision, including a non-salacious description of sexual contact
21 between a prison guard and a prisoner in an Idaho prison, to which the prisoner did not
22 consent.
23

36.

Plaintiff is informed and believes and thereon alleges that Defendants have

24 never delivered the March 2014 issue to any PLN subscribers incarcerated in ADC
25 facilities.
Censorship of April 2014 Issue of Prison Legal News

26
27

37.

On or about April 4, 2014, PLN mailed its April 2014 Prison Legal News

28 publication to one-hundred and fourteen (114) ADC prisoners in Defendants’ custody at
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1 the following ADC facilities: Arizona State Prison-Kingman; ASPC Aspen; ASPC
2 Douglas; ASPC Eyman-Browning; ASPC Eyman-Cook; ASPC Eyman-Meadows; ASPC
3 Eyman-Rynning; ASPC Eyman-SMU; ASPC Florence Central; ASPC Florence East;
4 ASPC Florence North Unit; ASPC Florence South; ASPC Bachman; ASPC Lewis5 Barchey; ASPC Lewis-Buckley; ASPC Lewis-Rast; ASPC Lewi-Stiner; ASPC
6 Perryville-Lumley; ASPC Perryville-Piestewa; ASPC Perryville-San Pedro; ASPC
7 Perryville-Santa Cruz; ASPC Santa Maria; ASPC Tucson-Cimarron; ASPC Tucson8 Manzanita; ASPC Tucson-Rincon; ASPC Tucson-Winchester; ASPC Winslow; ASPC
9 Yuma-Cheyenne; ASPC Yuma-Cibola; ASPC Yuma-Dakota; ASPC Phoenix-Alhambra;
10 ASPC Safford-Tonto; Central Arizona Correctional Institute; Central Arizona

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11 Correctional Facility; and Florence Correctional Center. A true and correct copy of the
12 April 2014 issue of PLN is attached hereto as Exhibit D.
13

38.

PLN did not receive any notice from Defendants that the April 2014 issue,

14 or any article in it, would not be delivered or was not delivered to the addressed
15 recipients.
16

39.

Plaintiff is informed and believes and thereon alleges that many of the

17 prisoner subscribers incarcerated at the ADC facilities did not receive the April 2014
18 issue of Prison Legal News. Several subscribers in ADC facilities wrote to Plaintiff to
19 notify it that they did not receive the April 2014 issue, and/or sent Plaintiff copies of
20 notices they received from Defendants informing them that the April 2014 issue was
21 being withheld for purportedly violating Defendants’ mail policies.
22

40.

On or about March 20, 2015, in response to a letter from PLN regarding the

23 censorship of its publications in ADC facilities, Assistant Attorney General Pamela J.
24 Linnins informed PLN that the April 2014 issue of Prison Legal News had been excluded
25 from ADC prisons. Ms. Linnins did not identify the reason for the censorship of the
26 April 2014 issue.
27

41.

In the same letter, Ms. Linnins also notified PLN that, after PLN objected

28 to the censorship, Defendants had reconsidered their decision to withhold the April 2014
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1 issue of Prison Legal News from distribution to subscribers in ADC facilities.
2

42.

On or about May 26, 2015, after PLN sent a follow-up letter objecting to

3 the censorship and requesting Defendants’ basis for doing so, Defendants provided PLN
4 with a copy of the Notice of Result-Publication Review for the April 2014 issue of Prison
5 Legal News, which had a “Review Date” of November 25, 2014 (“November 25, 2014
6 Notice”). A true and correct copy of the November 25, 2014 Notice is attached hereto as
7 Exhibit E.
8

43.

The November 25, 2014 Notice states that the April 2014 issue of Prison

9 Legal News was excluded from ADC facilities pursuant to DO 914.08, Policy Number
10 1.1.18, “Unacceptable Sexual or Hostile Behaviors.” See Exhibit A. The Notice does

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11 not specify which article(s) or page(s) of the April 2014 issue of Prison Legal News
12 purportedly violated those policies.
13

44.

There are no articles in the April 2014 issue of Prison Legal News that

14 “may encourage unacceptable sexual or hostile behaviors.” Exhibit A, DO 914.08,
15 Policy Number 1.1.18.
16

45.

Plaintiff is informed and believes and thereon alleges that the article in the

17 April 2014 issue to which Defendants objected is on page 20 of the issue, and is entitled
18 “Kitchen Supervisor Gets Prison Time for Sexually Abusing Two Prisoners.”

See

19 Exhibit D at 20. The article describes the facts underlying a criminal case in the United
20 States District Court for the District of Arizona, including a non-salacious description of
21 non-consensual sexual contact between a prison kitchen supervisor and two prisoners in a
22 federal prison in Arizona.
23

46.

In the May 26, 2015 correspondence from Ms. Linnins, Defendants

24 provided PLN with a copy of a follow-up Notice of Result-Publication Review for the
25 April 2014 issue of Prison Legal News, with a “Review Date” of March 18, 2015
26 (“March 18, 2015 Reconsideration Notice”). A true and correct copy of the March 18,
27 2015 Reconsideration Notice is attached hereto as Exhibit F. The March 18, 2015
28 Reconsideration Notice states that the April 2014 issue of Prison Legal News would be
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1 allowed.
2

47.

On June 22, 2015, Defendants notified PLN that the April 2014 issue of

3 Prison Legal News had been distributed to subscribers.
4

48.

Plaintiff is informed and believed and thereon alleges that while some

5 subscribers to Prison Legal News incarcerated in ADC prisons ultimately received their
6 copies of the April 2014 issue, others never did, even though those subscribers remained
7 in custody after the March 18, 2015 Reconsideration Notice and Defendants’ June 22,
8 2015 confirmation that the issue had been delivered.
9

49.

Plaintiff is further informed and believes and thereon alleges that some of

10 the subscribers to Prison Legal News who were incarcerated in ADC facilities in April

Ballard Spahr LLP
1 East Washington Street
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11 2014 never received the April 2014 issue of Prison Legal News because they were no
12 longer in custody when Defendants decided to reverse their initial censorship decision
13 approximately one year later.
Censorship of July 2014 Issue of Prison Legal News

14
15

50.

On or about July 1, 2014, PLN mailed its July 2014 Prison Legal News

16 publication to one hundred and thirty-five (135) ADC prisoners in Defendants’ custody at
17 the following ADC facilities: Arizona State Prison-Kingman; Arizona State Prison –
18 Kingman/Cerbat; ASPC Aspen; ASPC Douglas; ASPC Eyman-Browning; ASPC
19 Eyman-Cook; ASPC Eyman-Meadows; ASPC Eyman-Rynning; ASPC Eyman-SMU;
20 ASPC Florence – Globe Detention; ASPC Florence Central; ASPC Florence East; ASPC
21 Florence North Unit; ASPC Florence South; ASPC Bachman; ASPC Lewis-Barchey;
22 ASPC Lewis-Buckley; ASPC Lewis-Rast; ASPC Lewi-Stiner; ASPC Perryville-Lumley;
23 ASPC Perryville-Piestewa; ASPC Perryville-San Pedro; ASPC Perryville-Santa Cruz;
24 ASPC Santa Maria; ASPC Tucson-Cimarron; ASPC Tucson-Manzanita; ASPC Tucson25 Rincon; ASPC Tucson-Winchester; ASPC Winslow; ASPC Yuma-Cheyenne; ASPC
26 Yuma-Cibola; ASPC Yuma-Dakota; ASPC Phoenix-Alhambra; ASPC Safford-Tonto;
27 Central Arizona Correctional Institute; Central Arizona Correctional Facility; and
28 Florence Correctional Center. A true and correct copy of the July 2014 issue is attached
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1 hereto as Exhibit G.
2

51.

PLN did not receive any notice from Defendants that the July 2014 issue, or

3 any article in it, would not be delivered or was not delivered to the addressed recipients.
4

52.

Plaintiff is informed and believes and thereon alleges that many of the

5 prisoner subscribers incarcerated at the ADC facilities did not receive the July 2014 issue
6 of Prison Legal News. Several subscribers in ADC facilities wrote to Plaintiff to notify it
7 that they did not receive the July 2014 issue, and/or sent Plaintiff copies of notices they
8 received from Defendants informing them that the July 2014 issue was being withheld for
9 purportedly violating Defendants’ mail policies.
10

53.

On or about March 20, 2015, in response to a letter from PLN regarding the

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11 censorship of its publications in ADC facilities, Assistant Attorney General Pamela J.
12 Linnins informed PLN that the July 2014 issue of Prison Legal News had been excluded
13 from ADC prisons. Ms. Linnins did not state the reason for the censorship of the July
14 2014 issue.
15

54.

Also in that letter, Ms. Linnins notified PLN that Defendants had

16 reconsidered their decision to withhold the July 2014 issue of Prison Legal News from
17 distribution to subscribers in ADC facilities.
18

55.

On or about May 26, 2015, after PLN sent a follow-up letter objecting to

19 the censorship and requesting Defendants’ basis for doing so, Defendants provided PLN
20 with a copy of an undated “Complex Publications Review – Sexually Explicit Material”
21 form (“Undated Complex Publications Review Form”) from the ASPC-Tucson facility
22 for the July 2014 issue of Prison Legal News, completed by an ADC staff member
23 identified as “AA II Vasquez” from the “Complex-Level Publications Staff.” A true and
24 correct copy of the Undated Complex Publications Review Form is attached hereto as
25 Exhibit H.
26

56.

The Undated Complex Publications Review Form states that the July 2014

27 issue of Prison Legal News was excluded from ADC facilities pursuant to DO 914.07,
28 Policy Numbers 1.1 through 1.2.2.6, which prohibit “publications that feature nudity
DMWEST #13240601 v1

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Case 2:15-cv-02245-BSB Document 1 Filed 11/06/15 Page 15 of 24

1 and/or sexual behaviors and/or the publication is promoted based on such depictions.”
2 See Exhibit A. The Notice does not specify which article(s) or page(s) of the July 2014
3 issue of Prison Legal News purportedly violated those policies.
4

57.

There are no articles in the July 2014 issue of Prison Legal News which

5 “feature nudity and/or sexual behaviors,” and Prison Legal News is not “promoted based
6 on such depictions.”
7

58.

Plaintiff is informed and believes and thereon alleges that the article in the

8 July 2014 issue to which Defendants objected is on page 36 of the issue, and is entitled
9 “New York Jail Guard Sentenced for Sexually Abusing Seven Prisoners.” See Exhibit G
10 at 36. The article describes the facts of a state criminal case and federal civil rights cases,

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1 East Washington Street
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11 including a non-salacious description of forced sexual contact between a jail guard and
12 seven prisoners in a New York correctional facility.
13

59.

In the May 26, 2015 correspondence from Ms. Linnins, Defendants

14 provided PLN with a copy of a Memorandum from Defendant OLSON in the Office of
15 Publication Review to a prisoner whose name was redacted, dated January 15, 2015 and
16 regarding “Prison Legal News, July 2014, V25 N7” (“January 15, 2015 Memorandum”).
17 A true and correct copy of that Notice is attached hereto as Exhibit I.
18

60.

The January 15, 2015 Memorandum notified the prisoner that upon second

19 review, the July 2014 issue of Prison Legal News was determined “not [to] contain
20 material that meets the sexually explicit criteria,” that the “prior decision to exclude this
21 publication is rescinded,” and that the publication “shall be distributed to those inmates
22 who were to receive the edition.” Exhibit I (emphasis in original).
23

61.

On June 22, 2015, Defendants notified PLN that the April 2014 issue of

24 Prison Legal News had been distributed to subscribers.
25

62.

Plaintiff is informed and believes and thereon alleges that while some

26 subscribers to Prison Legal News incarcerated in ADC prisons received their copies of
27 the July 2014 issue of Prison Legal News, others did not, even though they remained in
28 ADC custody after January 15, 2015 Memorandum and Defendants’ June 22, 2015
DMWEST #13240601 v1

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Case 2:15-cv-02245-BSB Document 1 Filed 11/06/15 Page 16 of 24

1 confirmation that the issue had been delivered.
2

63.

Plaintiff is informed and believes and thereon alleges that some of the

3 subscribers to Prison Legal News who were incarcerated in ADC facilities in July 2014
4 never received the July 2014 issue of Prison Legal News because they were no longer in
5 custody when Defendants decided to reverse their initial censorship decision
6 approximately six months later.
Censorship of October 2014 Issue of Prison Legal News

7
8

64.

On or about October 9, 2014, PLN mailed its October 2014 Prison Legal

9 News publication to one hundred and forty-two (142) ADC prisoners in Defendants’
10 custody at the following ADC facilities: Arizona State Prison-Kingman; Arizona State

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11 Prison – Kingman/Cerbat; ASPC Aspen; ASPC Douglas; ASPC Eyman-Browning;
12 ASPC Eyman-Cook; ASPC Eyman-Meadows; ASPC Eyman-Rynning; ASPC Eyman13 SMU; ASPC Florence – Globe Detention; ASPC Florence Central; ASPC Florence East;
14 ASPC Florence North Unit; ASPC Florence South; ASPC Bachman; ASPC Lewis15 Barchey; ASPC Lewis-Buckley; ASPC Lewis-Rast; ASPC Lewi-Stiner; ASPC
16 Perryville-Lumley; ASPC Perryville-Piestewa; ASPC Perryville-San Pedro; ASPC
17 Perryville-Santa Cruz; ASPC Santa Maria; ASPC Tucson-Cimarron; ASPC Tucson18 Manzanita; ASPC Tucson-Rincon; ASPC Tucson-Winchester; ASPC Winslow; ASPC
19 Yuma-Cheyenne; ASPC Yuma-Cibola; ASPC Yuma-Dakota; ASPC Phoenix-Alhambra;
20 ASPC Safford-Tonto; Central Arizona Correctional Institute; Central Arizona
21 Correctional Facility; and Florence Correctional Center. A true and correct copy of the
22 October 2014 issue is attached hereto as Exhibit J.
23

65.

PLN did not receive any notice from Defendants that the October 2014

24 issue, or any article in it, would not be delivered or was not delivered to the addressed
25 recipients.
26

66.

Plaintiff is informed and believes and thereon alleges that many of the

27 prisoner subscribers incarcerated at the ADC facilities did not receive the October 2014
28 issue of Prison Legal News, and none of the prisoner subscribers incarcerated at the ADC
DMWEST #13240601 v1

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Case 2:15-cv-02245-BSB Document 1 Filed 11/06/15 Page 17 of 24

1 facilities received a full, unredacted copy of the October 2014 issue. Several subscribers
2 in ADC facilities wrote to Plaintiff to notify it that they did not receive the October 2014
3 issue, and/or sent Plaintiff copies of notices they received from Defendants informing
4 them that the October 2014 issue was being withheld for purportedly violating
5 Defendants’ mail policies.
6

67.

On or about March 20, 2015, in response to a letter from PLN regarding the

7 censorship of its publications in ADC facilities, Assistant Attorney General Pamela J.
8 Linnins informed PLN that the October 2014 issue of Prison Legal News had been
9 excluded from ADC prisons. Ms. Linnins did not state the reason for the censorship of
10 the October 2014 issue.

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11

68.

On or about May 26, 2015, after PLN sent a follow-up letter objecting to

12 the censorship and requesting Defendants’ basis for doing so, Defendants provided PLN
13 with a copy of the Notice of Result-Publication Review for the October 2014 issue of
14 Prison Legal News, which had a “Review Date” of February 11, 2015 (“February 11,
15 2015 Notice”). A true and correct copy of the February 11, 2015 Notice is attached
16 hereto as Exhibit K.
17

69.

The February 11, 2015 Notice states that the October 2014 issue of Prison

18 Legal News was excluded from ADC facilities pursuant to DO 914.07, “Sexually Explicit
19 Material.” See Exhibit A. The February 11, 2015 Notice does not specify which
20 article(s) or page(s) of the October 2014 issue of Prison Legal News purportedly violated
21 that policy.
22

70.

On or about June 22, 2015, Defendants informed PLN that, after further

23 review of the October 2014 issue, Defendants distributed a redacted version of the issue
24 to subscribers. A true and correct copy of the page of the October 2014 issue with those
25 redactions is attached hereto as Exhibit L. PLN did not authorize Defendants to make
26 any redactions or modifications to its publication at any point.
27

71.

The unredacted version of the article Defendants censored appears on page

28 32 of the October 2014 issue, and is entitled “Tenth Circuit Holds ‘Consensual’ Sex
DMWEST #13240601 v1

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Case 2:15-cv-02245-BSB Document 1 Filed 11/06/15 Page 18 of 24

1 Defeats Prisoner’s Eighth Amendment Claim.”

See Exhibit J at 32.

The article

2 describes the facts underlying an opinion by the Tenth Circuit Court of Appeals, Graham
3 v. Sheriff of Logan County, 741 F.3d 1118 (10th Cir. 2013), including a non-salacious
4 description of sexual contact between a prisoner in a county jail and two jail guards, to
5 which the prisoner asserted she did not consent.
72.

6

Defendants’ unauthorized redaction of the October 2014 issue violates

7 Defendants’ own mail policies. ADC DO 914.06, Policy Number 1.12 prohibits ADC
8 staff from “remov[ing] pages of any publication to make the publication acceptable,”
9 because “[r]emoving pages alters the publication rendering it as contraband.”

See

10 Exhibit A.
73.

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1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11

PLN has never received an updated Notice of Result-Publication Review

12 for the October 2014 issue that indicates that the issue was delivered to subscribers, with
13 or without the redactions.
74.

14

Plaintiff is informed and believes and thereon alleges that some subscribers

15 to Prison Legal News incarcerated in ADC prisons received copies of the redacted
16 October 2014 issue of Prison Legal News between March 18, 2015 and June 22, 2015.
75.

17

Plaintiff is informed and believes and thereon alleges that some of the

18 subscribers to Prison Legal News who were incarcerated in ADC facilities in October
19 2014 never received the October 2014 issue of Prison Legal News because they were no
20 longer in custody when Defendants decided to reverse their censorship decision. Plaintiff
21 is further informed and believes and thereon alleges that additional subscribers may not
22 have received the redacted issue, even though they remained in custody after March 18,
23 2015.
Defendants Failed to Provide Due Process to PLN

24
25

76.

Defendants did not provide PLN with constitutionally adequate due process

26 when censoring PLN’s written speech.

Defendants provided neither notice nor an

27 opportunity to appeal the aforementioned censorship decisions at or shortly after the time
28 they occurred.
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Case 2:15-cv-02245-BSB Document 1 Filed 11/06/15 Page 19 of 24

1

77.

Defendants failed to provide notice to PLN of the reason for rejecting

2 issues of Prison Legal News by, among other inadequacies, failing to notify PLN directly
3 of their refusal to deliver the issues to Prison Legal News subscribers in a timely fashion
4 (or at all), failing to explain the basis for their censorship decisions or to identify the mail
5 policies relied on at the time of the decision, and otherwise failing to give meaningful
6 notice of the censorship. Even when Defendants notified PLN of the censorship months
7 after it occurred, in response to inquiries from PLN, Defendants failed to identify specific
8 articles or pages of the issues of Prison Legal News that they found objectionable, and
9 failed to notify PLN that they had censored the March 2014 issue. At no time did
10 Defendants provide an opportunity for PLN to appeal the rejection of its mail.

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1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11

78.

Plaintiff is informed and believes and thereon alleges that Defendants fail

12 to provide notice and an opportunity to appeal to other senders of censored mail
13 addressed to prisoners at the ADC prisons.
14

79.

Plaintiff is informed and believes and thereon alleges that Defendants fail

15 to provide constitutionally adequate notice to some of the prisoner subscribers when
16 ADC censors issues of Prison Legal News. Defendants also fail to provide the same
17 prisoner subscribers with any opportunity to be heard to challenge the censorship
18 decisions.
19
20

ADC Policies and Practices Do Not Provide for Notice and Are Overbroad
80.

ADC policies do not provide for any notice to be given to the publisher or

21 sender when a publication or mailing is censored by ADC staff. Exhibit A, ADC DO
22 914.02, Policy Number 1.7 specifies that “[u]nauthorized property or material discovered
23 in incoming mail shall be removed,” and a “Notice to Sender of Rejection of Incoming
24 Mail, Form 909-3, shall be completed and sent to the inmate.” The policy is explicit that
25 the ADC “shall not pay for the cost of notifying the sender.” Exhibit A, ADC DO
26 914.02, Policy Number 1.7 violates constitutional requirements regarding notice to
27 senders of mail to prison prisoners.
28

81.

Moreover, ADC policies explicitly prohibit appeals of “decisions to

DMWEST #13240601 v1

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Case 2:15-cv-02245-BSB Document 1 Filed 11/06/15 Page 20 of 24

1 exclude publications” from ADC facilities. Exhibit A, ADC DO 914.06, Policy Number
2 1.13 states that “[p]reviously excluded Publications shall not be re-submitted for review
3 or appeal under this Department Order.” Exhibit A, ADC DO 914.06, Policy Number
4 1.13 violates constitutional requirements regarding due process for senders of mail to
5 prison prisoners.
6

82.

Similarly, while ADC DO 914.07, Policy Number 1.5 provides an

7 opportunity for a prisoner recipient of a publication deemed to contain “Sexually Explicit
8 Material” to request second-level review of ADC staff’s decision to exclude the
9 publication, it has no such provision for the publisher or sender to request a second-level
10 review.

Exhibit A, ADC DO 914.07, Policy Number 1.5 violates constitutional

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11 requirements regarding due process for senders of mail to prison prisoners.
12

83.

As noted above, Defendants’ policies prohibiting distribution of

13 publications with sexual content do not contain any exception for discussion of sexual
14 acts in a non-salacious manner for the purpose of discussing the facts underlying a
15 reported decision or legal proceeding, and are therefore overbroad.
16

84.

Allowing PLN to distribute publications with articles that contain a

17 discussion of sexual acts in a non-salacious manner for the purpose of discussing the facts
18 underlying a court case will not have any negative impact on the operation of ADC
19 facilities or programs.
20

85.

Defendants’ mail policies, practices, and customs have been used to censor

21 PLN’s correspondence with prisoners at ADC prisons, in particular PLN’s monthly
22 publication.
23

86.

Defendants’ conduct prohibiting distribution of at least four issues of

24 Prison Legal News in a seven month period in 2014 to prisoners confined at ADC prisons
25 violates the First Amendment. Defendants’ policies, practices and customs censor PLN’s
26 expressive activities and have a chilling effect on PLN’s future speech and expression
27 directed toward inmates confined there. Defendants’ policies, practices and customs are
28 unconstitutional both facially and as applied to PLN. Defendants’ censorship of Prison
DMWEST #13240601 v1

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Case 2:15-cv-02245-BSB Document 1 Filed 11/06/15 Page 21 of 24

1 Legal News serves no legitimate penological purpose.
2

87.

PLN publishes and distributes content concerning the rights of prisoners

3 and the means by which they may obtain relief from unconstitutional conditions of
4 confinement.

As a result, PLN is informed and believes and thereon alleges that

5 Defendants have retaliated against PLN by refusing to deliver PLN’s written materials to
6 inmates held at ADC prisons.
7

88.

Defendants’ actions have violated, continue to violate, and are reasonably

8 expected in the future to violate PLN’s constitutional rights, and have caused Plaintiff
9 financial harm in the form of lost subscriptions and diversion of resources to address the
10 censorship.

In addition, Defendants’ actions have frustrated Plaintiff’s mission of

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1 East Washington Street
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11 education and advocacy, including the dissemination of PLN’s political message, and the
12 reporting and publishing of news regarding the human and legal rights of persons held in
13 prisons and jails. Further, Defendants’ actions have interfered with PLN’s ability to
14 recruit new donors, writers and supporters.
15

89.

Defendants’ actions and inactions were and are malicious, oppressive, and

16 were and are all committed under color of law with reckless disregard to PLN’s rights.
17

90.

Defendants CHARLES L. RYAN, GAIL RITTENHOUSE, JEFF HOOD,

18 ALF OLSON, DOES 1 to 20, and other agents of the ADC are responsible for or
19 personally participated in creating and implementing these unconstitutional policies,
20 practices, and customs, or for ratifying or adopting them.

Further, Defendants are

21 responsible for training and supervising the mail staff whose conduct has injured and
22 continues to injure PLN.
23

91.

Defendants’ unconstitutional policies, practices, and customs are ongoing,

24 and continue to violate PLN’s rights. It is likely that Defendants will continue to censor
25 future issues of Prison Legal News in violation of the First Amendment and without
26 providing due process. As such, PLN has no adequate remedy at law.
27

92.

PLN is entitled to injunctive relief prohibiting Defendants from refusing to

28 deliver its publication without any legal justification, and prohibiting Defendants from
DMWEST #13240601 v1

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Case 2:15-cv-02245-BSB Document 1 Filed 11/06/15 Page 22 of 24

1 censoring mail without due process of law.
2

CLAIMS FOR RELIEF

3

FIRST CLAIM FOR RELIEF
(Against all Defendants – For Violations of the First Amendment Under Color of
State Law – Free Speech; Section 1983)

4
5
6
7
8
9
10

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11
12
13
14
15
16
17
18
19
20
21
22
23
24

93.

Plaintiff realleges and incorporates herein by reference each and every

allegation set forth in paragraphs 1-92.
94.

The acts described above constitute violations of Plaintiff’s rights under the

First Amendment to the United States Constitution through 42 U.S.C. § 1983, and have
caused and will continue to cause damages and irreparable injury to Plaintiff.
95.

Plaintiff seeks declaratory and injunctive relief, as well as nominal and

compensatory damages, against all Defendants.
96.

Plaintiff is informed, believes, and based thereon alleges that in engaging in

the conduct alleged herein, the individual Defendants acted with the intent to injure, vex,
annoy and harass Plaintiff, and subjected Plaintiff to cruel and unjust hardship in
conscious disregard of Plaintiff’s rights with the intention of causing Plaintiff injury and
depriving it of its constitutional rights.
97.

As a result of the forgoing, Plaintiff seeks nominal and compensatory

damages against Defendants in their individual capacities.
98.

Moreover, Plaintiff is informed, believes, and based thereon alleges that in

engaging in the conduct alleged herein, the individual Defendants’ actions were
malicious, oppressive, and/or in reckless disregard for Plaintiff’s rights, and therefore
Plaintiff seeks exemplary and punitive damages against Defendants in their individual
capacities.
WHEREFORE, Plaintiff seeks relief as set forth below.

25
26
27
28

SECOND CLAIM FOR RELIEF
(Against all Defendants – For Violations of the Due Process Clause of the
Fourteenth Amendment Under Color of State Law)
99.

Plaintiff realleges and incorporates herein by reference each and every

DMWEST #13240601 v1

22

Case 2:15-cv-02245-BSB Document 1 Filed 11/06/15 Page 23 of 24

1 allegation set forth in paragraphs 1-98.
2

100.

By failing to give Plaintiff sufficient notice of the censorship of its written

3 speech, and by failing to give an opportunity to be heard with respect to that censorship,
4 Defendants have deprived and continue to deprive Plaintiff of liberty and property
5 without due process of law, in violation of the Fourteenth Amendment to the United
6 States Constitution via 42 U.S.C. § 1983.
7

101.

The acts described above have caused and will continue to cause damage to

8 Plaintiff.
9

102.

Plaintiff seeks declaratory and injunctive relief, as well as nominal and

10 compensatory damages, against all Defendants.

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

11

103.

Moreover, Plaintiff is informed, believes, and based thereon alleges that in

12 engaging in the conduct alleged herein, the individual Defendants’ actions were
13 malicious, oppressive, and/or in reckless disregard for Plaintiff’s rights, and therefore
14 Plaintiff seeks exemplary and punitive damages against Defendants in their individual
15 capacities.
16

WHEREFORE, Plaintiff seeks relief as set forth below.
PRAYER FOR RELIEF

17
18

WHEREFORE, Plaintiff PRISON LEGAL NEWS, a project of the Human Rights

19 Defense Center, prays for judgment against Defendants CHARLES L. RYAN, in his
20 official capacity as Director of the Arizona Department of Corrections and in his
21 individual capacity; GAIL RITTENHOUSE, in her official capacity as Division Director,
22 Support Services of the Arizona Department of Corrections and in her individual
23 capacity; JEFF HOOD, in his official capacity as Deputy Director of the Arizona
24 Department of Corrections and in his individual capacity; ALF OLSON, in his official
25 capacity as an employee of the Office of Publication Review of the Arizona Department
26 of Corrections and his individual capacity; and DOES 1 to 20, inclusive, as follows:
27

1.

A declaration that Defendants’ policies, practices, and customs violate the

28 First and Fourteenth Amendments to the United States Constitution;
DMWEST #13240601 v1

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Case 2:15-cv-02245-BSB Document 1 Filed 11/06/15 Page 24 of 24

1

2.

An order enjoining all Defendants and their employees, agents, and any and

2 all persons acting in concert with them from further violating Plaintiff’s and other
3 senders’ civil rights under the First and Fourteenth Amendments to the United States
4 Constitution.
5

3.

Nominal damages for each violation of Plaintiff’s rights by the Defendants.

6

4.

Compensatory damages in an amount to be proven at trial.

7

5.

Punitive damages in an amount to be proven at trial.

8

6.

Costs, including reasonable attorney’s fees, under 42 U.S.C. § 1988 and

Ballard Spahr LLP
1 East Washington Street
Suite 2300
Phoenix, AZ 85004-2555

9 under other applicable law.
10

7.

Prejudgment and post-judgment interest.

11

8.

Such other relief as the Court deems just and equitable.

12
DEMAND FOR JURY TRIAL

13
14

Plaintiff hereby demands a jury trial.

15

RESPECTFULLY SUBMITTED this 6th day of November, 2015.

16

BALLARD SPAHR LLP

17
18

By: /s/ David J. Bodney
David J. Bodney
bodneyd@ballardspahr.com
Heather Todd Horrocks
horrocksh@ballardspahr.com
1 East Washington Street, Suite 2300
Phoenix, AZ 85004-2555
Attorneys for Plaintiff Prison Legal News

19
20
21
22
23
24
25
26
27
28
DMWEST #13240601 v1

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Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 1 of 90

EXHIBIT A

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 2 of 90

y

CORRECTIONS

ADC

ARIZONA
DEPARTMENT
OF
CORRECTIONS

CHAPTER: 900
INMATE PROGRAMS
AND SERVICES

OPR:
OPS

DEPARTMENT ORDER: 914

SUPERSEDES:

INMATE MAIL

DO 91415/11081

DEPARTMENT ORDER MANUAL

EFFECTIVE DATE:
FEBRUARY 26, 2010
REPLACEMENT PAGE
REVISION DATE:
JUNE 8, 2012

TABLE OF CONTENTS
PROCEDURES
914,01

MAIL GENERAL" '''''' '''' '" '" '" '''' '" '" '" '"'''' '" '" '" '"'''' '" '" '''''' '''' '" '" '" '''' '"'' 1

914,02

INCOMING MAIL. '''''' '''' '" '" '" '''' '" '" '" '"'''' '" '" '" '"'''' '" '" '''''' '''' '" '" '" '''' '"'' 2

914,03

AUTHORIZATION OF COMPACT DISCS ANDIOR CASSETTE TAPES """""""""'" 7

914,04

INTER-RELATIONAL MAIL. _________ . '" '" '" ""'" '" '" '" ""'" '" '" """ "" '" '" '" '" """ 8

914,05

OUTGOING MAIL """ "" '" '" '" "" '" '" '" ""'" '" '" '" ""'" '" '" """ "" '" '" '" "" "'" 9

914,08

PUBLICATIONS '" """ "" '" '" '" "" '" '" '" ""'" '" '" '" ""'" '" '" """ "" '" '" '" "" '" 10

914,07

SEXUALLY EXPLICIT MATERIAL". '" '" '" ""'" '" '" '" ""'" '" '" """ "" '" '" '" ""'" 12

914,08

UNAUTHORIZED PUBLICATIONS AND MATERIAL"""""""""""""""""""""" 13

914,09

PUBLICATION REVIEW PROCESS •. '" '" '" ""'" '" '" '" ""'" '" '" """ "" '" '" '" ""'" 16

914,10

THE OFFICE OF PUBliCATION REVIEW """ "" """ """ "" """ """ "" """ """ "" 16
IMPLEMENTATION.". '" "" '" '" '" """'"'''' '" '" '" ""'" '" '" '" ""'" '" '" """ "" '" '" '" ""'" 17
DEFINITIONS. ""'" '" '" "" '" '" '" """ '" "" '" '" '" ""'" '" '" '" ""'" '" '" """ "" '" '" '" '" "" 16
AUTHORITY "'"'''' '" '" '''' '" '" '" '''''' '" '''' '" '" '" '"'''' '" '" '" '"'''' '" '" '''''' '''' '" '" '" '" '''' 20
ATTACHMENT

INMATE MAIL

FEllftUARY 28, 2010

914- PAi3E I

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 3 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

PURPOSE
This Department Order establishes regulations, processes and procedures for inmates to send and receive
mail, music, and individually reviewed publications. All mail is processed consistent with postal regulations
and the security requirements of correctional facilities. Each publication is individually reviewed consistent
with the Department's legitimate penological interest in maintaining the safety, security and orderly
operations of the institutions.

PROCEDURES
914.01

MAIL GENERAL
1.1

There is no limitation put on the amount of mail an inmate may receive regardless of
custody or detention status, provided the incoming mail meets requirements, does not
violate policy, and the mail is not between an inmate and any of the following:
1.1.1

Released offenders currently under community supervision by the Department,
excluding members of the inmate's immediate family as defined in this
Department Order.

1.1.2

An inmate confined in any local, state or federal correctional facility including,
but not limited to county jails, detention centers, halfway houses, privately
operated correctional facilities, and juvenile facilities, excluding an inmate's
immediate family as defined in this Department Order.
1.1.2.1

1.1.3

Current or former Department/Contract Bed employees or current or former
Department volunteers, without the Complex Warden's prior written approval.

1.1.4

Minors that are not the inmate's natural or adopted child or minors that do not
have parents' or guardians' prior written approval.

1.1.5

Anyone who advises the Warden or Deputy Warden in writing that they do not
wish to receive mail from a particular inmate. This request must be documented
and filed in the inmate record and through an AIMS entry.

1.1.6

Victim(s) of a crime for which an inmate was convicted and/or their family
members when the victim has requested for no communication on a PostConviction Notification request in accordance with Department Order #1001,
Inmate Release System. Victims that have not formally made the uNo Inmate
Mail" request may communicate with the inmate or the inmate's family members
with prior Warden or Deputy Warden written approval. This request must be
documented and filed in the inmate record and through an AIMS entry.
1.1.6.1

1.2

INMATE MAIL

Inter-relational mail shall be approved as outlined in section g 14.04
of this Department Order.

Unit/Complex staff shall notify the inmate of the victim's request
and that further contact with the victim or his/her family members
identified by the victim will result in disciplinary action.

All outgoing domestic mail shall be sent by pre-stamped envelope only, unless otherwise
indicated. Domestic postage stamps are not sold in inmate stores. Only stamps for
international mail (i.e. Mexico, Canada) or airmail will be available in the commissary.

JUNE 8, 2012

914 - PAGE 1

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 4 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

1.3

1.2.1

Indigent inmates shall be provided with pre-stamped envelopes, or applicable
postage for Mexico or Canada, for five one-ounce pieces of first class mail per
month. Inmates may receive additional credit for postage for Legal Mail as
outlined Department Order #902, Inmate Legal Access to Courts.

1.2.2

All postage required beyond the limits cited in this Department Order and all
postage for inmate groups and organizations shall be at the expense of the
inmate, group or organization.

1.2.3

Postage stamps shall not be used as negotiable instruments or legal tender as
payment for materials ordered from private vendors.

1.2.4

Inmates shall not barter, trade, sell, or exchange postage stamps for any goods
or services.

1.2.5

Inmates are subject to the limits for possession of postage stamps as outlined in
Attachment A of Department Order #909, Inmate Property.

Mail room staff shall maintain:
1.3.1

An itemized list of all incoming and outgoing registered, insured and certified
mail.

1.3.2

Permanent logs that will be subject to periodic inspections shall consist of:

1.3.3

914.02

1.3.2.1

An itemized list of all incoming and outgoing packages, including
the name and ADC number of each inmate who sends or receives a
package.

1.3.2.2

The name and address of each sender and addressee for each
package.

1.3.2.3

A detailed description of the contents of each. For incoming
publications, this includes the name and dated information for each
publication.

1.3.2.4

The amount of postage or the amount paid to the contract carrier
for each outgoing package.

1.3.2.5

The date of the mailing or receipt of each package, expenses
incurred in processing the mail, and the name of the staff member
who recorded the information.

An electronic log of all incoming and outgoing legal mail to include the date
received, inmate name and number, sender, and the date received by the inmate.
All Incoming and Outgoing Legal Mail shall be processed as outlined in
Department Order #902, Inmate Legal Access to Courts.

INCOMING MAIL
1.1

INMATE MAIL

Upon arrival at a new Department/Contract Bed facility, staff shall provide each inmate
with the correct mailing address. It shall be the responsibility of the inmate to notify
correspondents of the correct mailing address.

JUNE 8, 2012

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1.2

Incoming Mail addressed to inmates shall have the inmate's complete first and last name,
the inmate's name under which he/she is incarcerated (unless legally changed), the
inmate's correct ADC number, as well as the inmate's unit name and the appropriate Post
Office (PO) Box.

1.3

Incoming Mail shall have a complete return address including the sender's name and the
complete street address or PO Box. Mail without a complete return address shall be
opened and read to inspect the contents to make a reasonable attempt to ascertain the
identity of the sender. If the sender can be identified and the mail does not present any
security concerns the mail may be delivered to the inmate. If the sender cannot be
verified, the inmate shall receive a notice and the mail held for 90 days before it is
destroyed.

1.4

It is the inmate's responsibility to notify correspondents of his/her mailing address, where
local U.S. Postmaster practice permits, a U.S. Postal Service (USPS) change of address
form shall be completed by the inmate and sent to the USPS. All Department/Contract
Bed facilities shall make these forms available. Incoming mail shall be forwarded as
follows:

1 .5

1.4.1

Mail that arrives without an inmate ADC number shall be stamped "Return to
Sender,' and returned.

1.4.2

Mail that arrives for an inmate at an institution where the inmate is no longer
housed shall be forwarded to the inmate's current institution.

1.4.3

When possible, First Class mail belonging to an inmate who is temporarily
confined at a hospital or local county jail shall be forwarded.

1.4.4

Mail belonging to an inmate who is no longer in physical custody of the
Department shall be forwarded up to 30 days after his/her release; provided a
forwarding address is available. When no forwarding address is available, the
mail shall be stamped "inmate is no longer in custody" and returned to the
sender.

1.4.5

All mail received for inmates on escape status shall be forwarded to the Criminal
Investigation Unit (CIU) for evaluation and processing.

Designated staff at each unit/complex is authorized to open, inspect and read incoming
mail to prevent criminal activity and prevent inmates from receiving contraband or any
other material that may be detrimental to the safe and orderly operation of the institution.
1.5.1

INMATE MAIL

Upon inspection, incoming mail shall be withheld from an inmate if it meets one
or more of the following criteria:
1.5.1.1

Poses a direct and immediate threat to the security, safety or order
of the institution.

1.5.1.2

Substantially hinders efforts to treat or rehabilitate the inmate;
however, legal mail will not be withheld for this purpose.

1.5.1.3

Threatens the intended recipient.

FEBRUARY 26, 2010

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1 .6

1.7

INMATE MAIL

1.5.1.4

Promotes, aids or abets criminal activity or violation of Department
rules, including but not limited to rioting, extortion, escape, illegal
drug use, conveyance of contraband, solicitation of funds, violence
towards others, and promotes or encourages security threat
groups.

1.5.1.5

Has content written in code or that contains hidden messages.

1.5.2

Mail meeting one or more of the criteria in 1.5.1 through 1.5.1.5 of this section
shall be forwarded to CIU for review. CIU shall return the mail for delivery within
72 hours unless it is determined that an investigation is required, in which case
the mail shall be held. If it is determined that the mail is not to be delivered, the
inmate shall be notified unless notification would interfere with the investigation.

1.5.3

When an incoming envelope is stamped "Return to Sender" staff shall open and
inspect it for contraband before returning it to the inmate.

1.5.4

Incoming legislative correspondence shall be opened in the presence of the
inmate to whom it is addressed and may only be inspected to the extent
necessary to establish the presence of contraband.

Inmates may only receive money orders, cashier's checks or certified checks for deposit
into inmates' accounts, in accordance with Department Order #905, Inmate
Banking/Money System. No other monetary instrument, including cash, coins or personal
checks, shall be deposited into an inmate's account.
1.6.1

Money orders, cashier's checks or certified checks shall be made payable to
"The Arizona Department of Corrections for the account of (Inmate's Name and
ADC Number)."

1.6.2

Mail Room staff shall deliver a receipt to the inmate and forward all money
orders, cashiers checks, cash and personal checks received to the Business
Office for processing.

1.6.3

The Business Office/designated staff shall process the monetary instruments that
meet the Department requirements and return those that do not meet
Department requirements at the inmate recipient's expense.

1.6.4

The Business Office shall notify CIU of any received Internal Revenue Service
(IRS) checks. CIU may notify the IRS if deemed appropriate.

1.6.5

Outgoing inmate/IRS correspondence shall contain a notation by staff on the
envelope directing the correspondence to the Criminal Investigations Branch at
the Service Center to which the correspondence is addressed.

Unauthorized property or material discovered in incoming mail shall be removed from
incoming letters and held as contraband. An inmate Property/Contraband/Disposition,
Form 909-6, and Notice to Sender of Rejection of Incoming Mail, Form 909-3, shall be
completed and sent to the inmate. Inmates have 90 days to either have item(s) destroyed
or returned to the sender. The Department shall not pay for the cost of notifying the
sender of the inmate's contraband arrangements or its mailing cost.

FEBRUARY 26, 2010

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1 .7.1

The Department shall not pay for the cost of returning unauthorized property or
material that includes, but is not limited to:
1.7.1.1

Used or unused postage stamps.

1.7.1.2

Stickers, labels, address labels or decorative stamps.

1.7.1.3

Photos where the non-photo side can be separated (Polaroid's).

1.7.1.4

Photos of other inmates.

1.7.1.5

Unknown foreign substances and/or powders.

1.7.1.6

Oils, perfumes, incense or personal property items.

1.7.1.7

Lottery tickets or games of chance.

1.7.1.8

Tax forms.

1.7.1.9

Battery operated greeting cards, or greeting cards larger than 8 %"
by 11."

1.7.1.10

Unused Greeting cards, stationary, pens/pencils and/or envelopes.

1.7.1.11

Unused postcards.

1.7.1.12

Bookmarks.

1.7.1.13

Inspirational cards or medals.

1.7.1.14

Candy, gum, or any food items.

1.7.1.15

Art, crafts and hobby supplies.

1.7.1.16

Road maps of Arizona, areas contiguous to Arizona, states that
contain the contract prison facilities, and states contiguous to
those states where contract prison facilities are located; Public
Transportation maps of Arizona and states with contract prison
facilities and/or descriptions or photos of Department or contract
prison facilities. ("Contiguous", as used in this section, means
states surrounding and bordering the subject state. In the example
of Arizona, this would mean California, Nevada, Utah, New
Mexico, Colorado, and Mexico, or any portion thereof). Any
publication containing maps as part of the material will be subject
to all publication review requirements.

1.7.1.17

Calendars.

1.7.1.18

A printed individual item (not a supplement of an item such as a
newspaper), specifically intended for the purpose of advertising or
selling merchandise (catalog, circular) for any items that an inmate
would not be permitted to receive.
1.7.1.18.1

INMATE MAIL

Catalogs for publications, compact discs,
cassettes and other items inmates would be able
to receive shall be processed according to the
publication review requirements.
FEBRUARY 26, 2010

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1.7.1.19

Personal or professional/commercial phot09raphs that feature
nudity or sexually explicit acts, as detailed in the DEFINITION
section. Photos of current or former Department/Contract Bed
employees and/or Department volunteers.

1.8

Newspaper clippings, magazine articles, cartoons or copies of material from the internet
may be enclosed within personal mail; however, the content is subject to the publication
review process. Internet material containing information about staff or other inmates is
unauthorized if it is determined to be a threat to the safe and orderly operation of an
institution and/or a threat to the safety of any other person. Inmates are not authorized to
receive items from the ADC Net website.

1.9

Inmates may be permitted to view crime scene and/or autopsy photographs in accordance
with Department Order #909 Inmate Property.

1.10

Incoming third class/bulk mail and publications
mail/publication content meets policy guidelines and:

will

be

delivered

provided

the

1.10.1

Is prepaid, as defined by this Department Order;

1.10.2

Is addressed to a specific inmate or inmates with the correct name, ADC number
and housing location.

1.11

Undeliverable Standard Mail shall be returned to the Post Office, if the Post Office will
accept it. If the Post Office does not accept the undeliverable mail, it shall be documented
in the appropriate log and destroyed/shredded and bagged by staff and placed in a
dumpster or other trash container.

1.12

Incoming telegrams or similar urgent mail, including but not limited to, overnight mail shall
be delivered within 1 2 hours unless circumstances make delivery impractical.

1 .1 3

Excluding holidays and weekends, incoming mail shall not be held and shall be delivered
within 24 hours unless circumstances make delivery impractical.

1 .14

All mail and publications with metal bindings other than staples, including paper clips,
binder clips, and other metal fasteners are prohibited. An inmate that receives a metal
binding piece of mail and/or publication shall be informed of its arrival and will either
decide to have the publication processed as contraband or give his/her written permission
to have the binding removed prior to its release to the inmate. Staff shall make note of the
removal in the inmate's property file.
1.14.1

INMATE MAIL

Staples in all mail and publications are prohibited in the following types of
housing units:
1.14.1.1

Death Row.

1.14.1.2

Administrative or Disciplinary Confinement.

1.14.1.3

Close Management.

1.14.1.4

Maximum Management.

1.14.1.5

Mental Health Treatment Units (Baker and Flamenco)

FEBRUARY 26, 2010

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DEPARTMENT ORDER: 914 - INMATE MAIL

914.03

AUTHORIZATION OF COMPACT DISCS AND/OR CASSETTE TAPES
1.1

All compact discs (CD's) and/or cassettes received through the mail shall be new, clear or
a cardboard container, in its original wrapper and packaging, and shall not be a rerecording of an original, and shall be consistent with copyright laws. Authorized mail order
purchases for inmate in disciplinary detention may be held until inmate is released from
detention.

1.2

Envelopes/packages containing incoming CD's and/or cassettes shall have the inmate's
complete first and last name, the inmate's name under which he/she is incarcerated
unless legally changed, the correct ADC number, institution and unit, and the appropriate
Post Office Box. Incoming approved compact discs and/or cassette tapes for inmates in
disciplinary detention may be held until the inmate is released from detention.

1.3

Incoming CD's and/or cassettes must come directly from a recognized publisher,
distributor or authorized retailer. Family members or friends are not authorized to send
CD's and/or cassettes directly to an inmate even if they include a verifiable packing list or
invoice. Secondary markets also known as third party vendors, (for example, "eBay,· and
"Amazon Marketplace"), or any other auction sites are not authorized retailers or
distributors for the purpose of this Department Order.

1.4

Cassette tapes and/or CD's commonly referred to as "Books on Tape" are subject to the
publication review requirements, as outlined in section 914.09 of this Department Order
and shall be included in the total possession limit amount for cassette tapes/discs as
outlined in Attachment A of Department Order #909, Inmate Property.

1.5

Inmates may receive correspondence tapes with prior written approval of the unit Deputy
Warden. Inmates shall only receive correspondence tapes from an individual on his/her
approved visitation list.
1 .5.1

The requesting individual shall submit a written justification to the unit Deputy
Warden requesting approval for correspondence tapes indicating that the inmate
or visitor has a disability or literacy concern that prevents written
correspondence.

1.5.2

The inmate shall show in advance that he/she is in possession of an operational
and authorized appliance with a cassette player.

1.5.3

Correspondence tapes shall not contain sexually explicit language or any other
unauthorized content that would be in violation of this Department Order.

1.5.4

Correspondence tapes shall be screened at the Complex/Unit Level only and shall
not be forwarded to Central Office Publication Review.

1.6

Religious oriented tapes and/or CD's sent through the mail to a specific inmate shall be
commercially recorded. Tapes/CD's of religious services being donated by volunteers or
outside groups for services or inmate listening shall be pre-screened by the Senior
Chaplain to ensure that they are consistent with the guidelines within this Department
Order. Volunteers are not authorized to directly provide inmates with recorded material.

1.7

Cash on delivery (COD) orders and contract purchases such as music clubs are prohibited
and shall be returned to sender. The Department shall not be responsible for the cost of
returning any unauthorized material.

INMATE MAIL

FEBRUARY 26, 2010

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DEPARTMENT ORDER: 914 - INMATE MAIL

INTER-RELATIONAL MAIL

914.04
1.1

Inmates that are immediate family members as defined in this Department Order and
those that are the verified natural or legally adopted parents of a child are authorized to
have inter-relational mail, provided the communication meets the criteria set forth in this
Department Order.

1.2

In order to have inter-relational mail privileges, the natural or adoptive parents shall:
1.2.1

Provide the child's birth certificate, and

1.2.2

The relationship can be readily verified by staff, i.e. it is clear in the pre-sentence
report or file.

1.3

Inter-relational communication shall not contain communications with or on behalf of any
other inmates that do not have inter-relational mail approval.

1.4

Only letters, homemade greeting cards or greeting cards purchased through the inmate
store are authorized for inter-relational mail. The transfer of funds and/or any other item is
prohibited.

1.5

The sending unit/complex shall verify the inmate's relationship, and shall stamp the
outgoing letter as 'verified." Letters that have not been verified and approved shall be
returned to the inmate sender.

1 .6

All inter-relational mail privileges shall be pre-approved by both the requesting and
receiving Warden or Deputy Warden. Approvals and denials are at the discretion of the
Warden or Deputy Warden and may be revoked when it is in the best interest of
institutional security.

1.7

The inmate shall pay postage. Indigent inmates may be provided postage as outlined in
section 914.01 of this Department Order.

1.8

Inmates who wish to send mail to an incarcerated immediate family member shall submit
the request to their assigned Correctional Officer III who shall verify the relationship.

1.9

The assigned Correctional Officer III or designated staff member at the requesting
institution shall:

INMATE MAIL

1.9.1

Complete a Request to Communicate with an Incarcerated Family Member, Form
915-3, as outlined in Department Order #915, Inmate Phone Calls.

1.9.2

Verify that an immediate family relationship exists between the inmates.

1.9.3

the application
Forward
approval/disapproval.

1.9.4

Forward copies of the approved applications to the respective Mail/Property
rooms at the requesting and receiving institution.

1.9.5

Advise inmate of disapproved applications, and note all approvals and denials on
AIMS.

to

the

FEBRUARY 26, 2010

Warden

or

Deputy

Warden

914 - PAGE 8

for

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

914.05

OUTGOING MAIL
1.1

All outgoing inmate mail shall include on the envelope the inmate's complete first and last
name (the name under which he is incarcerated), ADC inmate number, and full return
address, including the name of the complex, unit and bed location.
1.1.1

Institution mailroom staff shall return mail lacking this information to the sending
inmate, if known, for a correction.

1.1.2

If the inmate sender is not known, the correspondence shall be opened to make
a reasonable attempt to determine the identity of the inmate sender. If the
identity cannot be determined, the mail shall be held in a "Dead Letter"
repository for 90 days, pending claim. If no claim is made, the mail shall be
processed as unclaimed property.

1.1.3

Inmates shall seal outgoing mail and place it in locked mailboxes located
throughout the institution or in other areas designated by the Warden or Deputy
Warden. Mail shall be collected at approximately the same time each workday,
except on weekends and holidays, and shall be delivered to the mail room for
processing.
1.1.3.1

1.2

1.3

1.4

INMATE MAIL

Outgoing mail being sent to any elected government official shall
be brought to the mailroom unsealed. Staff shall review the
envelope for content, but shall not read the contents of the letter.

1.1.4

SECTION DELETED

1.1.5

Inmates shall not use the complex or unit address to fraudulently identify
themselves as employees, agents, or representatives of the Department,
complex, unit, or Contract Bed facility.

Staff who processes outgoing inmate mail may inspect it for contraband, but shall not
read or censor mail being sent to:
1.2.1

The inmate's attorney, a judge, or court.

1.2.2

Publisher or editor of a newspaper, news magazine or periodical of general
distribution, national or international news service or to the station manager of
any radio or television stations.

1.2.3

The Director, Deputy Director or Division Directors of the Department.

1.2.4

Elected or appointed public officials.

Staff shall read up to 10% of outgoing mail. Mail may be returned to the inmate, retained
by the institution, or removed from the mailing (the balance of which shall be mailed)
when the contents or communications:
1.3.1

Pose a direct and immediate threat to the security, safety or order of the
institution.

1.3.2

May substantially hinder efforts to treat or rehabilitate the inmate.

Staff shall not stamp or mark the contents of outgoing read mail, rather, the envelope or
box shall be stamped or marked as having been inspected and resealed prior to mailing.

APRIL 28, 2011

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DEPARTMENT ORDER: 914 - INMATE MAIL

1.5

Outgoing inmate mail is subject to being opened and read by staff when there is a
reasonable belief that the inmate is using the mail to further a crime or circumvent
Department regulations or written instructions. Such mail may include, but is not limited
to:
1.5.1

Descriptions or encouragement of activities that may lead to the use of physical
violence.

1.5.2

Information that involves escape plans and/or activities that violate Department
or institution regulations or written instructions.

1.5.3

Threatens the intended recipient.

1.5.4

Promotes, aids or abets criminal activity or violation of departmental rules,
including but not limited to, rioting, extortion, escape, illegal drug use,
conveyance of contraband, solicitation of funds, violence towards others, and
promotes or encourages security threat groups.

1.5.5

Mail written in code or provides instruction on code use.

1.6

Outgoing mail that is read by staff and is determined to be detrimental to the security or
safe operation of the institution or that may impede the protection of the public or
facilitate criminal activity shall be referred to the Criminal Investigations Unit for further
action.

1.7

The Criminal Investigation Unit shall:
1.7.1

Retain the censored portion of any outgoing mail during any investigation, and
then return it to the sender.

1.7.2

Stamp the uncensored portion of any censored mail to indicate that portions of
the mail were censored, and mail it to the recipient unless doing so would
interfere with an ongoing investigation.

1.7.3

The Department may censor the item or determine not to mail the item.

1.8

Mail outlined in 1.7.2 of this section shall be sent within 72 hours, and unless it is
determined that such mail is not to be sent. If the mail is not to be sent, the inmate shall
be notified of such within 72 hours, unless doing so interferes with an ongoing
investigation.

1.9

Excludin9 holidays and weekends, outgoing mail shall not be held and shall be delivered to
the Post Office within 24 hours unless circumstances make delivery impractical.

914.06

PUBLICATIONS
1.1

All publications are subject to screening and review and shall meet standards and
guidelines as detailed in this Department Order.

1.2

The envelope/container shall have the inmate's complete first and last name under which
he/she is incarcerated unless legally changed, the correct ADC number, institution and
unit, and the appropriate Post Office Box.

INMATE MAIL

FEBRUARY 26, 2010

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

1.3

Publications shall come directly from a recognized publisher, distributor, or authorized
retailer, be consistent with copyright laws and shall include a packing list/invoice with all
shipments.
1.3.1

Secondary markets (also known as Third Party Vendors) such as e-Bay and
Amazon Marketplace are not authorized retailers or distributors.

1.3.2

Used publications are authorized provided they meet all incoming publication
requirements including coming from a recognized publisher, distributor or retailer
or a verifiable organization that donates publications to inmates and are in good
condition, free of highlighting, underlining, notes or other marks.

1.4

Non-English publications may be delayed due necessary translation.

1.5

Incoming publications shall be pre-paid. Cash on Delivery (COD) orders and contract
purchases such as music or book clubs are prohibited and will be returned to the sender at
the inmate's expense. Donated publications not coming in from a recognized publisher,
distributor or retailer shall be processed as contraband or donated to an inmate library
provided they meet Departmental policy requirements and publication review as set forth
in this Department Order.

1 .6

Publications shall be forwarded for a SO day period if the inmate is in custody at a
Department or Contract Bed facility, provided there is no state or other governing
rules/regulations preventing the forwarding of the publication.
1.6.1

The inmate shall be responsible for the change of address notifications.

1.6.2

At the end of the SO-day period, the publications shall be subject to contraband
policies and procedures and will no longer be forwarded.

1 .7

Inmates are responsible for staying within publication possession limit requirements as
outlined in Attachment A of Department Order #SOS, Inmate Property, and may be
subject to disciplinary action for exceeding publication/property limits. Items over the
established limit shall be considered contraband.

1.8

Authorization to withdraw funds from an inmate's account for the purchase of a
publication does not constitute approval of the publication.

1.S

All publications, including those that are part of a title or series, are reviewed on an
individualized basis. Rejection of several issues of anyone publication is not sufficient
reason to reject a subscription to a publication in its entirety; unless the publication
regularly includes sexually explicit material as part or all of its content.

1.10

Unless there is a legitimate correctional concern relating to security, safety, criminal
activity or a threat to the orderly operation of the institution, the contents of incoming
publications or publications under review shall not be revealed to any non-Publications
Review Staff. Only those staff approved to participate in publication review and who have
received publication review training, shall be involved in processing, reading and reviewing
publications.

1 .11

No publication shall be excluded solely on the basis of its appeal to a particular ethnic,
racial or religious group.

INMATE MAIL

FEBRUARY 26, 2010

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

1.12

Staff shall not remove pages of any publication to make the publication acceptable.
Removing pages alters the publication rendering it as contraband. Previously excluded
publications that have been re-edited by removing pages or the blocking out of pictures or
texts will remain excluded. Staff may remove stapled or perforated items including, but
not limited to free product samples, calendars, advertising or promotional items provided
that no damage is done to the publication in the removal process.

1.13

Previous decisions to exclude publications, regardless of any subsequent revISIons in
standards or criteria, remain final. Previously excluded Publications shall not be resubmitted for review or appeal under this Department Order.

1.14

Publications delivered to an inmate in error at any complex/unit prior to and contrary to a
First or Second Review may be considered contraband upon official notice from
Publication Review Office that the publication has been excluded. Inmates will be provided
the options of sending out the material, placing it in long-term storage, or having it
destroyed.

1.15

Approved incoming publications in disciplinary detention may be held until the inmate is
released from detention.

914.07

SEXUALLY EXPLICIT MATERIAL

1 .1

In order to assist with rehabilitation and treatment objectives, reduce sexual harass me nt
and prevent a hostile environment for inmates, staff and volunteers, inmates are not
permitted to send, receive or possess sexually explicit material. For the purpose of this
Departmental Order, sexually explicit material is defined as publications that feature nudity
and/or sexual behaviors/acts and/or the publication is promoted based on such depictions.

1.2

Prohibited publications include, but are not limited to:

1.3

INMATE MAIL

1.2.1

Publications that contain photographs, drawings, cartoons, animations, pictorials
or other facsimiles that show nudity of either gender. (For Nudity see
Definitions.)

1.2.2

Publications that contain any of the following acts and behaviors either visually,
written or in audio (non-lyric) form:
1.2.2.1

Physical contact by another person with a person's unclothed
genitals, pubic area, buttocks or, if such person is a female,
breast.

1.2.2.2

Sadomasochistic abuse.

1.2.2.3

Sexual intercourse, vaginal or anal, fellatio, cunnilingus, bestiality
or sodomy.

1.2.2.4

Masturbation, excretory functions, and lewd exhibition of the
genitals.

1.2.2.5

Incestuous sexual activity.

1.2.2.6

Sexual activity involving an unwilling participant, or a participant
who is the subject of coercion, or any sexual activity involving
children.

Publications that contain nudity and/or sexual behaviors/acts for artistic, scientific,
medical, educational, or anthropological purposes will be sent to the Office of Publication
Review and may be approved on an individualized basis.

FEBRUARY 24, 2011

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

1.4

Personal letters are not subject to Publication Review.

1.5

Sexually Explicit Publications will be reviewed and processed as following:
1.5.1

Within seven calendar days, unit/complex staff shall send the inmate the
Complex Level Publications Review/Sexually Explicit Material, Form 914-7
stating that a sexually explicit publication has arrived and will be processed
according to contraband policies and procedures, unless a second level review is
requested within 20 calendar days of the inmate's actual receipt of the notice of
exclusion.

1.5.2

Inmates may give their request of a second level review to the Complex/StandAlone Unit Publication Review staff through Inmate Letter, Form 916-1 within
20 calendar days of the actual receipt of the notice of exclusion. If no second
level review is requested within the 20 calendar days, the publication will be
returned to sender at the inmate's expense. Publications under second level
review will not be returned to sender pending disposition of the appeal.

1.5.3

914.08

1.5.2.1

The Office of Publication Review is considered the second level
review for sexually explicit material.

1.5.2.2

SECTION DELETED

1.5.2.3

Appeal decisions made by the Office of Publication Review are
final and exhaust inmates' administrative remedies.

A Division Director or Director's designee not in the same chain of command as
the Office of Publication Review shall complete second level reviews for
excluded publications that contain nudity and/or sexual behaviors/acts for
artistic, scientific, medical, educational, or anthropological purposes.

UNAUTHORIZED PUBLICATIONS AND MATERIAL - Prohibited publications include those
that by their nature or content threaten or are detrimental to the security, safety and
orderly operation, or discipline of the facility, or inmate rehabilitation, or, are found to
facilitate, encourage, incite, promote or instruct in criminal activity or unauthorized prison
activity.
1.1

INMATE MAIL

Prohibited publications include, but are not limited to:
1.1.1

Depictions or descriptions that incite, aid, or abet riots, work stoppages, or
means of resistance.

1.1.2

Instructions or plans on the sending or receiving of prison contraband.

1.1.3

Depictions or descriptions of street gangs and/or Security Threat Groups (STGI,
and related gang/STG paraphernalia, including, but not limited to, codes, signs,
symbols, photographs, drawings, training material, and catalogs.

FEBRUARY 24, 2011

914 - PAGE 13

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 16 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

INMATE MAIL

1.1.4

Pictures, descriptions and instructions regarding the function of locks and/or
security devices (e.g. cameras, alarms) or how to bypass or defeat the security
functions of these devices.

1.1.5

Depictions, descriptions, instructions on the use of hands, feet, or head as
weapons, fighting weapons and techniques, self-defense and martial arts.

1.1.6

Depictions or descriptions, or promotion of drug paraphernalia or instructions for
the brewing of alcoholic beverages or the manufacture or cultivation of drugs,
narcotics or poisons.

1.1.7

Content that is oriented toward and/or promotes racism and/or religious
oppression and the superiority of one race/religion/political group over another,
and/or the degradation of one race/religion/political group by another.

1.1.8

Depictions, descriptions or content that instructs on the sale, manufacture,
concealment, or construction of ammunition, guns, rifles, bombs, explosives or
any other type weaponry; displays, realistic pictures, or cutaway pictures of
guns or knives suitable for use in making of reproduction weapons. The mere
photograph of a gun or knife in a magazine or publication (e.g. Field and Stream)
is not sufficient in and of itself to exclude the publication.

1.1.9

Detailed illustrations, explanations, and/or
communications systems or electronics.

1.1.10

Depictions, descriptions or content that promotes or instructs on identity theft.

1.1.11

Content that depicts, encourages, or describes methods of escape and/or
eluding capture, or contains blueprints, drawings, road maps of Arizona, areas
contiguous to Arizona, states that contain the contract prison facilities, and
states contiguous to those states where contract prison facilities are located;
Public Transportation maps of Arizona and states with contract prison facilities
and/or descriptions or photos of Department or contract prison facilities.
("Contiguous", as used in this section, means states surrounding and bordering
the subject state. In the example of Arizona, this would mean California,
Nevada, Utah, New Mexico, Colorado, and Mexico, or any portion there of.)

1.1.12

Content that contains survival skills that could be used as an aid in eluding
capture following an escape.

1.1.13

Gambling strategies and other gambling-related instructional material.

1.1.14

Pictures, depictions, illustrations, explanations, instructions, and/or patterns for
tattoos and/or skin modification equipment which would provide, at minimum,
visual aids for inmates wishing to reproduce this type of body ornamentation
and/or equipment.

1.1.15

Cipher or code or instruct on the usage of code.

1.1.16

Pictures, depictions, illustrations or text that promotes acts of violence, that
cause or intends to cause serious criminal injury or harm.

1.1.17

Graphic violence that includes but is not limited to murder, rape, sexual assault,
assault, amputation, decapitation, dismemberment, mutilation maiming,
disfigurement or cruelty to animals.
FEBRUARY 26, 2010

descriptions

of

914 - PAGE 14

computers/

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 17 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

2.1

2.2

INMATE MAIL

1.1.18

Pictures, photographs, illustrations, text or other content that may encourage
unacceptable sexual or hostile behaviors, or creates a hostile environment for
volunteers including, but not limited to sexual representations of inmates, law
enforcement, military, professional medical staff, teachers and Clergy.

1.1.19

Intelligence gathering instruction and/or investigative techniques that may
impede the Department's investigative ability.

1.1.20

Military/strategy publications that may circumvent the Department's ability to
monitor and control activities/behaviors that may be a violation of law and/or
Departmental policy.

1.1.21

Medical publications that may lead to any or all of the following:
1.1.21.1

Harming of oneself or others;

1.1.21.2

Impacting clinical test results;

1.1.21.3

Preventing medical staff from accurately diagnosing medical
issues and providing appropriate medical treatment and/or false
concerns of a given diagnosis or medical treatment necessities.

1.1.22

Depictions/descriptions/textual content that may create a health and fire risk.

1.1.23

Crime scene/autopsy photos.

1.1.24

Depictions, descriptions or content that promotes and/or instructs on the
facilitation of activity that is in violation of departmental policy and/or
governmental laws.

1.1.25

Canine search procedures, techniques and scent discrimination.

1.1.26

Instruction on the making of incense.

1.1.27

Depictions, descriptions or content that instructs on the sale, manufacture,
concealment, or the construction of tools.

A publication will not be rejected based upon inclusion of an advertisement promoting of
the following if the publication is otherwise permissible and the advertisement is merely
incidental to, rather than the focus of, the publication:
2.1.1

Three-way calling services;

2.1.2

Pen pal services;

2.1.3

The purchase of products and services with postage stamps;

2.1.4

The purchase of products and services that violate Departmental policy;

2.1.5

Conducting a business while incarcerated.

Publications that contain detailed content of any subjects listed above may be excluded.

FEBRUARY 26, 2010

914 - PAGE 15

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 18 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

914.09

PUBLICATION REVIEW PROCESS
1.1

914.10

The Complex/Stand-Alone Unit Level Publication Review staff shall:
1 . 1 .1

Facilitate the processing of sexually explicit publications as contraband as
outlined in section 914.07 of this Department Order.

1.1.2

Forward publications that contain nudity and/or sexual behaviors/acts for artistic,
scientific, medical, educational, or anthropological purposes to the Office of
Publication Review for disposition.

1.1.3

Approve/release publications that do not require additional review.

1.1.4

Notify inmates of publications that are pending disposition by the Office of
Publication Review.

1.1.5

Process inmates' second level review request and notify inmates of their
outcome or inform inmates if the request is not within timeframes. Second
Review can be requested by inmates through Inmate Letter, Form 916-1 to the
assigned Complex/Stand-Alone Unit Level Publication Review staff within 20
calendar days of the inmate's actual receipt of the notice of exclusion.

1.1.6

Distribute copies of Office of Publication Review - Notice of Result, Form 914-6
and a Memorandum of Second Review to inmates affected by either the decision
to exclude a publication or the referral for a Second Review. The distribution of
these copies shall include inmates presently in possession of excluded
publications, or who may in the future possess excluded publications. The
excluded publication will be dealt using the same procedures as set forth in
section 914.02, subsections 1.7 - 1.7.1 of this Department Order.

1 . 1 .7

Provide the Warden with a copy of any Memorandums of Second Review.

1.1.8

Respond to Inmate Publication Review-Related Letters questions or concerns.

1.1.9

Log all incoming publications that are included as part of Publication Review,
noting the specific publication, inmate information, and disposition, and sending
the monthly report to the Office of Publication Review.

1.1.10

Maintain log information for a period of two years.

THE OFFICE OF PUBLICATION REVIEW
1.1

INMATE MAIL

The Office of Publication Review shall:
1.1.1

Review, process, document and track publications forwarded by the
Complex/Stand-Alone Unit Publication Review staff and determine whether to
allow or exclude them.

1.1.2

Notify all Wardens and Mail/Property rooms of the decision on each reviewed
item.

1.1.3

Complete the Office of Publication Review - Notice of Result form for all
reviewed publications. Notices of Reviews for excluded publications must
provide a reason for the exclusion.

FEBRUARY 24, 2011

914 - PAGE 16

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 19 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

1.1.4

Send completed Office of Publication Review - Notice of Result form to the
Complex/Stand-Alone Unit Publication Review staff for distribution.

1.1.5

Act as second level review for publications that contain nudity or the sexually
explicit material as outlined in section 914.07 of this Department Order.

1.1.6

Maintain copies of all Notices of Review for period of three years from the date
of exclusion. Excluded publications shall be returned to the complex/unit
mailroom within 90 days following the review unless a Second Review has been
requested. One copy of an excluded publication will be retained for three years if
a Second Review has been completed and the exclusion was upheld.

1.1.7

Compile a monthly list of all excluded publications, which shall be forwarded to
all Complex/Stand-Alone Unit Level Publication Review staff and to all Wardens.

1.1.8

Notify all Wardens and Complex/Stand-Alone Unit Level Publication Review staff
of pending and completed second reviews.

1.1.9

Prepare a Memorandum of Second Review and appeal packet for publications
that inmates have requested a second level review that do not fall under the
sexually explicit material as outlined in section 914.07, of this Department
Order.

1.1.10

1.1.9.1

A Division Director or Director's designee not in the same chain of
command as the Office of Publication Review shall complete the
Memorandum of Second Review to affirm or reverse the original
decision. The Memorandum shall be forwarded to all affected
inmates through Complex/Stand-Alone Unit Level Publication
Review staff. The decision of the Division Director or Director's
Designee is final and exhausts inmates' administrative remedies.

1.1.9.2

Inmates may file grievances on Publication Review process
procedural issues. Grievances shall be processed through the
inmate's unit to the Central Office Appeals Unit. The appeal
response shall only address procedural issues and will not reconsider any decisions to exclude publications.

Forward completed Memorandums of Second Review to Complex/Stand-Alone
Unit Level Publications Review staff for distribution.

IMPLEMENTATION
Within 90 days of the effective date of the Department Order:
•

Each Warden shall provide direction for Inmate Mail addressing, at a minimum:
•

Outgoing and incoming mail.

•

Inter-relational mail.

•

Mail Room operations.

•

Mail contraband control.

INMATE MAIL

JUNE 8, 2012

914 - PAGE 17

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 20 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

•

Wardens and Deputy Wardens shall update and issue the appropriate direction and Post Orders for
mail procedures and processing all types and rates of mail consistent with current USPS
requirements mail operations.

Section 914.07, Sexually Explicit Material is not effective until August 26, 2010:
•

•

•

Until August 26, 2010 the previous Department Order 914, Inmate Mail, Section 914.07, Obscene
Material dated May 1, 2008 remains in effect. (See Attachment A)
Prior to this date inmates:
•

Shall cancel or allow to expire any current subscriptions to commercially published
magazines or publications that feature nUdity.

•

Shall mail out, destroy or request long-term storage for these publications or any other
material that is in violation of this Department Order.

Inmates may receive disciplinary action if found in the possession of unauthorized commercially
published magazines or publications after August 26, 2010. All such items shall be considered
contraband and will be subject to seizure.

DEFINITIONS
ALTERING - To change or make different; modify.
AUDIO BOOK - A taped reading of a book or book condensation reproduced in audiocassette form.
CENSOR - To delete, ban, suppress or withhold portions of mail.
CONTRABAND - For the purpose of this Department Order, contraband is defined as any item considered
to be a detriment to the safe and orderly operation of an institution or parole office. Contraband includes,
but is not limited to:
•

Any item that could be used as an aid to escape.

•

Any item that could be used to disguise or alter an inmate's appearance.

•

Any item of clothing or items for personal use or consumption that are not cleared first through
security or the property room of the institution.

•

Cameras, video, audio or related equipment, unless authorized by order of written instructions.

•

The introduction and/or possession of any separate components that may aid in the use of wireless
devices and/or multimedia storage devices. This includes, but may not be limited to:

•

•

Cell phone chargers.

•

Mobile chargers.

•

Cell phone batteries.

•

Any other item that staff reasonably determines may aid in the use of wireless devices
and/or multimedia storage devices.

Allowable items which are:
INMATE MAIL

JUNE 8, 2012

914 - PAGE 18

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 21 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

•

Possessed without permission.

•

Discovered in improper locations.

•

Over set allowable amounts.

•

Obtained in improper manners or methods.

•

In altered forms or conditions.

CORRESPONDENCE TAPES - Cassette tapes sent or received by an inmate or visitor where there exists a
disability or literacy concern that prevents written correspondence.
CRIMINAL ACTIVITY - Any activity that violates local, state and federal law, statutes, ordinances, or codes,
and constitutes a criminal act under the law.
CUNNILINGUS - Oral stimulation of the clitoris or vulva.
EXCRETORY FUNCTIONS - The elimination of a body's waste products through defecation and urination.
FEATURES - The publication contains nudity on a routine or regular basis or promotes itself based upon
such depictions in the case of an individual one-time issue.
FELLATIO - Oral stimulation of the penis.

REST OF PAGE BLANK

INMATE MAIL

AUGUST 9, 2010

914 - PAGE 188

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 22 of 90

THIS PAGE BLANK

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 23 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

FIRST CLASS MAIL - A class of mail including letters, postcards, and postal cards, all matter wholly or
partially in writing or typewriting; includes but is not limited to anything mailable such as bills, invoices,
personal correspondence, and some merchandise.
GENITALIA - Male and female sexual organs.
IMMEDIATE FAMILY - A legal spouse, natural or adopted parents, siblings, natural or adopted children,
stepchildren, grandparents, or other verified person primarily responsible for the raising of the inmate in the
absence of the inmate in the absence of a parent.
INCESTUOUS ACTIVITY - Sexual activity between family members who are forbidden to marry due to their
close kinship.
INFLAMMATORY - Arousing passion or strong emotion, especially anger and belligerence.
INTERCOURSE - The act of having sex.
INTER-RELATIONAL MAIL - Letters deliverable by the United States Postal Service written by an inmate to
an incarcerated immediate family member, clearly marked with the name and ADC number of the sending
and receiving incarcerated immediate family member.
ILLEGAL CONTRABAND - Any item, the possession of which in the community or on prison grounds is a
felony or misdemeanor, i.e., weapons, explosive devices, drugs, wireless communication devices,
multimedia storage devices or other statutorily prohibited item(s).
LEGISLATIVE CORRESPONDENCE - Letters to or from a member of the Arizona State Legislature. Mail that
is received in envelopes that are clearly marked as official envelopes used by the Arizona State Legislature
is considered incoming legislative correspondence.
MASTURBATION - Touch or rubbing of sexual organs for the purpose of sexual pleasure. Excitation of one's
own or another's genital organs, usually to orgasm, by manual contact or means other than sexual
intercourse.
NUDITY - Nudity as defined by ARS 13-3501, the showing of the human male or female genitals, pubic
area, female breast with less than a fully opaque covering of the nipple, or male or female buttocks with
less than a full opaque covering of the anus (e,g., a thong). The anus does not need to be visible.
PENOLOGICAL - Relating to the theory and practice of prison management and criminal rehabilitation.
PERIODICAL CLASS MAIL - Mail that consists of magazines, newspapers and other publications.
PREPAID PUBLICATIONS - Are any type of publication sent to an inmate that has been paid for in advance
of delivery to the inmate. Publications not paid for in advance will not be accepted and returned to the
sender at the inmate's expense.
PUBLICATION - A book, booklet, pamphlet, (or similar document), or a single issue of a magazine, catalog,
periodical, newsletter, audio (non music) tapes and CDs. Publication does not include personal letters and
personal photographs.
SADOMASOCHISTIC ABUSE - As defined by ARS 13-3501 means flagellation or torture by or upon a person
clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise
physically restrained on the part of one so clothed, for the purpose or in the context of sexual gratification
or abuse.

INMATE MAIL

FEBRUARY 24, 2011

914 - PAGE 19

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 24 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES
DEPARTMENT ORDER: 914 - INMATE MAIL

SEXUALLY EXPLICIT MATERIAL - Any publications, drawing, photograph, film, negative, motion picture,
figure, object, novelty device, recording, transcription, or any book, leaflet, catalog, pamphlet, magazi ne,
booklet or other item, the cover or contents of which pictorially depicts nudity of either gender, or that
graphically depicts through text any sexually explicit homosexual, heterosexual, or auto-erotic sex acts
including fellatio, cunnilingus, masturbation, sadism, sado-masochism, bondage, bestiality, excretory
functions, sexual activity involving children, an unwilling participant, or the participant who is the subject of
coercion.
STANDARD MAIL - Advertising mail that includes advertisements, circulars, newsletters, magazines, small
parcels and merchandise and weighs less than 16 ounces.
STG - An unofficial term used to denote any type of gang activity in prisons and correctional facilities. The
official term for this is Security Threat Group.
UNAUTHORIZED MATERIAL- Material that by its nature or content threatens or is detrimental to the
security, safety, good order or discipline of the facility, or inmate rehabilitation, or, that is found to
facilitate, encourage, incite, promote or instruct in criminal activity or unauthorized prison activity.
VIOLENCE - Acts of aggression or abuse that causes or intends to cause criminal injury or harm. These acts
include, but are not limited to, murder, rape, sexual assault, assault, and cruelty to animals. Graphic
violence would include, but is not limited to, acts of violence that include amputation, decapitation,
dismemberment, or mutilation maiming or disfigurement.

{Original Signature on File}

Charles L. Ryan
Director

ATTACHMENT
Attachment A - Obscene Material
FORMS LIST
914-6, Office of Publication Review - Notices of Result
914-7, Complex Level Publications Review/Sexually Explicit Material

AUTHORITY
A.R.S.
A.R.S.
A.R.S.
A.R.S.
A.R.S.
A.R.S.
A.R.S.
A.R.S.
A.R.S.
A.R.S.
A.R.S.

12-941 et seq, Disposal of Certain Unclaimed Property in Custody of State, City or Town Officers.
13-2501, Definitions of Contraband.
13-2505, Promoting Prison Contraband.
13-3309, Seizure; Exception; Definition.
13-3501, Obscene Material.
13-3503, Seizure of Obscene Things; Disposition.
13-4301 et seq, Forfeiture.
13-4411.01, Notice of Right to Request Not to Receive Inmate Mail.
13-4429, Return of Victim's Property; Release of Evidence.
31-231, Unauthorized Communications.
31-235, Prisoner correspondence: definitions.

INMATE MAIL

FEBRUARY 24, 2011

914 - PAGE 20

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 25 of 90
ATTACHMENT A
DEPARTMENT ORDER 914

OBSCENE MATERIAL
(DEPARTMENT ORDER 914, INMATE MAIL, SECTION 914.07, DATED MAY 1, 2008)

914.07

OBSCENE MATERIAL
1.1

Publications that contain obscene material may be prohibited and includes material that by
its nature or content poses a threat or is detrimental to inmate rehabilitation or is detrimental
to the security, safety, good order and discipline of the facility.

1.2

Material may be deemed obscene under applicable constitutional standards. A publication is
deemed obscene when ALL of the following apply:

1.3

1.2.1

The average person, applying contemporary state standards, would find that the
publication, taken as a whole, appeals to the prurient interest.

1.2.2

The average person, applying contemporary state standards, would find that the
publication depicts or describes, in a patently offensive way, sexual activity as
defined in this written instruction.

1.2.3

The publication, taken as a whole, lacks serious literary, artistic, political or
scientific value.

Prohibited publications include, but are not limited to:
1.3.1

Publications that contain portrayal of actual or simulated acts or threatened acts of
force or violence in a sexual context, including, but not limited to forcible
intercourse (rape) or acts of sadomasochism emphasizing the infliction of pain.

1.3.2

Publications that contain portrayal of actual or simulated acts or behaviors between
a human being and an animal.

1.3.3

Publications that contain portrayal of actual or simulated acts or behaviors in which
one of the participants is a minor, or appears to be under the age of 18.

1.3.4

Publications that include cartoons, animations, or other facsimiles of the above
listed acts.

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 26 of 90

EXHIBIT B

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 27 of 90

Prison Legal News
VOL. 25 No. 3

Dedicated to Protecting Human Rights

ISSN 1075-7678

March 2014

Corizon Needs a Checkup: Problems with
Privatized Correctional Healthcare
by Greg Dober

C

From the Editor

18

parent corporation] will be unable to restore
metrics to levels commensurate with the
prior B1 rating over the near to intermediate term.”
Valitás Health Services is majority owned by Beecken Petty O’Keefe &
Company, a Chicago-based private equity
management firm. Beecken’s other holdings
are primarily in the healthcare industry.
On September 23, 2013, Moody’s
again downgraded Corizon’s debt rating
and changed the company’s rating outlook
from “stable” to “negative.” The following
month Corizon announced that it had
replaced CEO Rich Hallworth with Woodrow A. Myers, Jr., the former chief medical
officer at WellPoint Health. Hallworth,
who had been appointed Corizon’s CEO
in 2011, previously served as the president
and CEO of PHS. At the same time that
Hallworth was replaced, Corizon president
Stuart Campbell also stepped down.

Private Prison Racial Disparities

20

Prison Medical Care for Profit

When Victims Speak for Criminals

24

Texas Criminal Court Fees

28

CA Female Prisoners Sterilized

32

Michigan Parole Scrutinized

42

Introduction to the FTCA

44

Execution Drugs Hard to Find

46

A Look Inside Maine’s Supermax

48

Video Visitation in Jails

50

UNICOR Faces Criticism

52

Oregon Jail Death Lawsuits

54

News in Brief

56

orizon, the nation’s largest forprofit medical services provider for
prisons, jails and other detention facilities,
was formed in June 2011 through the merger of Prison Health Services (PHS) and
Correctional Medical Services (CMS).
In April 2013, the debt-rating agency
Moody’s downgraded Corizon’s nearly
$360 million worth of debt to a rating of
B2 – an indication the company’s debt is
highly speculative and a high credit risk.
According to Moody’s, the rating downgrade was due to an “expectation of earnings
volatility following recent contract losses,
margin declines from competitive pricing
pressure on new and renewed contracts,
and Moody’s belief that Valitás [Corizon’s

Inside

According to Corizon’s website, the
company provides healthcare services at
over 530 correctional facilities serving
approximately 378,000 prisoners in 28
states. In addition, Corizon employs around
14,000 staff members and contractors. The
company’s corporate headquarters is located
in Brentwood, Tennessee and its operational
headquarters is in St. Louis, Missouri.
The 2011 merger that created Corizon
involved Valitás Health Services, the parent
company of CMS, and America Service
Group, the parent company of PHS. The
Nashville Business Journal reported the deal
was valued at $250 million.
“Corizon’s vision is firmly centered
around service – to our clients, our patients

and our employees,” Campbell said at the
time. “To that we add the insight of unparalleled experience assisting our client
partners, and caring professionals serving
the unique healthcare needs of [incarcerated] patients.”
Corizon has around $1.5 billion in
annual revenue and contracts to provide
medical services for the prison systems in
13 states. The company also contracts with
numerous cities and counties to provide
healthcare to prisoners held in local jails;
some of Corizon’s larger municipal clients
include Atlanta, Philadelphia and New
York City (including the Rikers Island
jail). Additionally, the company has its own
in-house pharmacy division, PharmaCorr,
Inc.
The prison healthcare market has flourished as state Departments of Corrections
and local governments seek ways to save
money and reduce exposure to litigation.
[See: PLN, May 2012, p.22]. Only a few
major companies dominate the industry.
Corizon’s competitors include Wexford
Health Sources, Armor Correctional
Health Services, NaphCare, Correct Care
Solutions and Centurion Managed Care –
the latter being a joint venture of MHM
Services and Centene Corporation. Around
20 states outsource all or some of the medical services in their prison systems.
As Corizon is privately held, there is
little transparency with respect to its internal operations and financial information,
including costs of litigation when prisoners
(or their surviving family members) sue
the company, often alleging inadequate
medical care.
For example, when Corizon was questioned by the news media in Florida during

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 28 of 90

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2

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 29 of 90

Prison Legal News

a publication of the
Human Rights Defense Center

www.humanrightsdefensecenter.org
EDITOR

Paul Wright
MANAGING EDITOR

Alex Friedmann
COLUMNISTS

Michael Cohen, Kent Russell,
Mumia Abu Jamal
CONTRIBUTING WRITERS

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LAYOUT

Privatized Healthcare Problems (cont.)
a contract renewal, the company initially
tried to prevent the release of its litigation
history, claiming it was a “trade secret.”
In 2012, Corizon agreed to settle a
lawsuit filed against PHS – one of its predecessor companies – by Prison Legal News,
seeking records related to the resolution of
legal claims against the firm in Vermont.
Based on the records produced pursuant to
that settlement, PHS paid out almost $1.8
million in just six cases involving Vermont
prisoners from 2007 to 2011. [See: PLN,
Dec. 2012, p.16].
Companies like Corizon provide
healthcare in prisons and jails under the
HMO model, with an emphasis on cutting
costs – except that prisoners have no other
options to obtain medical treatment except
through the contractor.

Lansing Scott

Arizona DOC

HRDC litigation project

A former Corizon nurse had her
license suspended and is currently under
investigation by the Arizona State Board
of Nursing for incompetence. In January
2014, nurse Patricia Talboy was accused of
contaminating vials of insulin at three units
at the ASPC-Lewis prison, potentially
exposing two dozen prisoners to HIV or
hepatitis.
Talboy reportedly used a needle to stick
prisoners’ fingers to check their blood sugar
levels. She then used the same needle to
draw insulin from vials of the medication
utilized for multiple prisoners, possibly
contaminating the insulin in the vials. After
placing the vials back into inventory, other
staff members may have unknowingly used
them to dispense insulin.
“Every indication is that the incident
is the result of the failure by one individual nurse to follow specific, standard
and well-established nursing protocols
when dispensing injected insulin to 24 inmates,” Arizona Department of Corrections
(ADC) director Charles L. Ryan said in a
January 9, 2014 statement.
Talboy’s failure to follow procedures
was discovered after a prisoner told a
different nurse about the issue. Corizon reportedly delayed three days before publicly
reporting the incident; in a press release, the
company admitted that one of its nurses
had been involved in “improper procedures
for injections.” Talboy received her nursing

Lance Weber—General Counsel
Robert Jack—Staff Attorney
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license in August 2012 and became an RN
in June 2013; as a rookie nurse, Corizon
likely paid her less than more experienced
nurses.
Following the insulin-related incident,
the company was ordered to develop a comprehensive plan that includes “supplemental
training and competency testing procedures
for blood glucose testing and administration
of insulin,” as well as “nurse-peer reporting
education to ensure professional accountability” and “patient awareness education
on injection protocols.”
Granted, Corizon isn’t alone with
respect to such incidents. In August 2012,
a nurse employed by the ADC’s previous medical services contractor, Wexford
Health Sources, contaminated the insulin
supply at ASPC-Lewis through improper
injection protocols, potentially exposing
112 prisoners to hepatitis C. [See: PLN,
July 2013, p.1].
Corizon has a three-year, approximately $370 million contract to provide
medical care in Arizona state prisons, which
began in March 2013. The contract award
generated controversy because former ADC
director Terry Stewart was hired by Corizon
as a consultant; current director Charles
Ryan had previously worked under Stewart,
raising a potential conflict of interest. Ryan
denied any improprieties.
According to a report by the American
Friends Service Committee released in October 2013, titled “Death Yards: Continuing
Problems with Arizona’s Correctional
Health Care,” medical services in Arizona
prisons did not improve after Corizon replaced Wexford as the ADC’s healthcare
contractor. “Correspondence from prisoners; analysis of medical records, autopsy
reports, and investigations; and interviews
with anonymous prison staff and outside
experts indicate that, if anything, things
have gotten worse,” the report stated.

Florida DOC
In 2013, the Florida Department of
Corrections (FDOC) awarded Corizon a
five-year, $1.2 billion contract to provide
medical services to state prisoners in north
and central Florida. Wexford Health Sources was contracted to provide similar services
in the southern region of the state for $240
million. [See: PLN, June 2013, p.24]. The
wholesale privatization of healthcare in
Florida’s prison system followed a 2011
legislative decision to disband the state’s
March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 30 of 90
Privatized Healthcare Problems (cont.)
Correctional Medical Authority, which had
oversight over prison medical care. [See:
PLN, May 2012, p.30].
The contracts were part of the Republican administration’s initiative to expand
privatization of government services, including prison management and healthcare,
in spite of previous setbacks. In 2006, PHS
withdrew two months into an almost $800
million contract to provide medical care to
Florida prisoners; at that time, the company
said the contract was not cost-effective and
claimed it would lose money.
The 2013 contract awards to Corizon
and Wexford followed a two-year legal
fight. In 2011, AFSCME Florida and the
Federation of Physicians and Dentists/
Alliance of Healthcare and Professional
Employees filed suit challenging the
prison healthcare contracts, in an effort
to protect the jobs of nearly 2,600 state
workers.
On June 21, 2013 the First District
Court of Appeals approved the privatization of medical care in FDOC facilities,

overturning a ruling by the Leon County
Circuit Court. The appellate court noted
in its decision that “The LBC [Legislative
Budget Committee] simply moved funds
from different line items within the Department’s Health Services’ program, providing
additional funds for contracts that the
Department otherwise had the authority to
enter.” See: Crews v. Florida Public Employers Council 79, 113 So.3d 1063 (Fla. Dist.
Ct. App. 1st Dist. 2013).
Under the terms of the FDOC’s
contract with Corizon, the company must
provide medical care to Florida state prisoners for 7% less than it cost the FDOC
in 2010. When entering into the contract,
state officials apparently had few concerns
about the numerous lawsuits previously
filed against Corizon, and no hard feelings
toward the company’s predecessor, PHS,
when it terminated its 2006 contract to
provide medical services to Florida prisoners because it wasn’t profitable.
“Most people feel, as long as they
achieve their 7 percent savings who cares
how they treat inmates?” noted Michael
Hallett, a professor of criminology at the
University of North Florida.

Florida Counties
In a September 6, 2012 unpublished
ruling, the Eleventh Circuit Court of Appeals affirmed a $1.2 million Florida jury
verdict that found Corizon – when it was
operating as PHS – had a policy or custom
of refusing to send prisoners to hospitals.
The Court of Appeals held it was reasonable for jurors to conclude that PHS had
delayed medical treatment in order to save
money. See: Fields v. Corizon Health, 490
Fed.Appx. 174 (11th Cir. 2012).
The jury verdict resulted from a suit
filed against Corizon by former prisoner
Brett A. Fields, Jr. In July 2007, Fields was
being held in the Lee County, Florida jail
on two misdemeanor convictions. After
notifying PHS staff for several weeks that
an infection was not improving, even with
antibiotics that had been prescribed, Fields
was diagnosed with MRSA. PHS did not
send him to a hospital despite escalating
symptoms, including uncontrolled twitching, partial paralysis and his intestines
protruding from his rectum. A subsequent
MRI scan revealed that Fields had a severe
spinal compression; he was left partly para-

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Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 31 of 90

lyzed due to inadequate medical care.
The Eleventh Circuit wrote that PHS
“enforced its restrictive policy against sending prisoners to the hospital,” and noted
that a PHS nurse who treated Fields at
the jail “testified that, at monthly nurses’
meetings, medical supervisors ‘yelled a lot
about nurses sending inmates to hospitals.’” Further, PHS “instructed nurses to
be sure that the inmate had an emergency
because it cost money to send inmates to
the hospital.”
At trial, the jury found that PHS had a
custom or policy of deliberate indifference
that violated Fields’ constitutional right to
be free from cruel and unusual punishment.
The jurors concluded that Fields had a serious medical need, PHS was deliberately
indifferent to that serious medical need, and
the company’s actions proximately caused
Fields’ injuries. The jury awarded him
$700,000 in compensatory damages and
$500,000 in punitive damages. [See: PLN,
March 2013, p.54; Aug. 2011, p.24].
More recently, the estate of a 21-yearold prisoner who died at a jail in Manatee
County, Florida filed a lawsuit in October
2013 against the Manatee County Sheriff ’s

Office and Corizon, the jail’s healthcare
provider. The complaint accuses the defendants of deliberate indifference to the
serious medical needs of Jovon Frazier
and violating his rights under the Eighth
Amendment.
In February 2009, Frazier was incarcerated at the Manatee County Jail; at the
time of his medical intake screening, staff
employed by Corizon, then operating as
PHS, noted that his health was unremarkable. Frazier submitted a medical request
form in July 2009, complaining of severe
pain in his left shoulder and arm, and a
PHS nurse gave him Tylenol.
Throughout August and September
2009, Frazier submitted five more medical
requests seeking treatment for his arm and
shoulder. “It really hurts! HELP!” he wrote
in one of the requests. PHS employees saw
him and recorded his vital signs. Despite
the repeated complaints, Frazier was never
referred to a doctor or physician assistant;
on September 9, 2009 his treatment was
documented as routine but he was placed
on the “MD’s list.”
An X-ray was taken on September
17, 2009 to rule out a shoulder fracture.

The X-ray was negative for a fracture, and
Frazier was not referred to a doctor. He
submitted two more medical requests that
month and five requests in October 2009
seeking treatment for his increasingly painful condition. The complaint alleges that in
total, Frazier submitted 13 medical request
forms related to pain over a period of three
months; he was seen by a nurse each time
but not examined by a physician.
On October 29, 2009, Frazier received
an X-ray to determine if he had a tendon
injury. An MRI was recommended and
he was transported to a hospital where an
MRI scan revealed a large soft tissue mass
on his shoulder. A doctor at the hospital,
concerned that the mass was cancerous,
recommended additional tests.
After being diagnosed with osteosarcoma, a form of bone cancer, Frazier
was returned to the jail and subsequently
treated at the Moffitt Cancer Center, where
he received chemotherapy, medication and
surgery. Despite this aggressive treatment
the cancer progressed and Frazier’s left
arm was amputated. The cancer continued
to spread, however, and he was diagnosed
with lung cancer in June 2011. He died

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March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 32 of 90
Privatized Healthcare Problems (cont.)
within three months of that diagnosis, on
September 18, 2011.
In a letter to the attorney representing
Frazier’s estate, Florida oncologist Howard
R. Abel wrote that the lack of treatment
provided by Corizon at the Manatee
County Jail constituted “gross negligence
and a reckless disregard to Mr. Frazier’s
right to timely and professionally appropriate medical care.”
The lawsuit filed by Frazier’s estate
claims that Corizon was aware of his
serious medical condition but failed to
provide adequate treatment. In addition,
the complaint contends the company has a
widespread custom, policy and practice of
discouraging medical staff from referring
prisoners to outside medical practitioners
and from providing expensive medical
tests and procedures. Finally, the lawsuit
states that “Corizon implemented these
widespread customs, policies and practices
for financial reasons and in deliberate indifference to [the] serious medical needs of
Frazier and other inmates incarcerated at
Manatee County Jail.”
On January 10, 2014, U.S. District
Court Judge James Moody denied Corizon’s motion to dismiss the case. The
company had argued that the allegations in
the lawsuit failed to assert sufficient facts to
establish deliberate indifference, amounted
only to medical negligence and were insufficient to establish gross negligence, and

failed “to adequately allege a policy or
custom that violated Frazier’s rights.” Judge
Moody disagreed, finding the claims set
forth in the complaint were “sufficient to
establish a constitutional violation.”
The Manatee County Sheriff ’s Office
had better luck with its motion to dismiss.
The Sheriff argued the complaint did not
establish facts indicating that the jail had a
similar practice – like Corizon – of providing deliberately indifferent medical care to
prisoners. The court agreed and dismissed
the claims against the Sheriff ’s Office; the
claims against Corizon remain pending.
See: Jenkins v. Manatee County Sheriff,
U.S.D.C. (M.D. Fla.), Case No. 8:13-cv02796-JSM-TGW.

Idaho DOC
In February 2013, the Idaho Department of Corrections (IDOC) announced
it had reached a one-year extended agreement with Corizon to provide medical care
in the state’s prison system. However, the
Idaho Business Review reported that the
extension also resulted in a rate increase.
Then-Corizon president Stuart Campbell
informed the IDOC Board of Correction
that the company wouldn’t sign an extension for less money, stating the current
contract had become too costly. During the
preceding three years of the contract the
IDOC had incurred approximately 20% in
cumulative rate increases.
Both sides agreed that the contract
would run through December 2013 and the
IDOC would pay an additional $250,000.

It seems odd that Idaho was willing to
continue contracting with the company,
though, as the relationship between the
IDOC and Corizon has been a rocky one.
The quality of medical care at the Idaho
State Correctional Institution (ISCI) in
Boise has been an ongoing issue for nearly
three decades. The prison was the focus
of a class-action lawsuit filed on behalf of
prisoners alleging a variety of problems,
including inadequate healthcare. The lawsuit was known as the Balla litigation after
plaintiff Walter Balla.
In July 2011, after new complaints
were filed regarding medical care at ISCI,
U.S District Court Judge B. Lynn Winmill
appointed a special master, Dr. Marc F.
Stern, to assess the situation at the facility.
The court wanted Stern to confirm whether
ISCI was in compliance with the temporary
agreements established in the Balla case,
and to investigate and report on “the constitutionality of healthcare” at the facility.
Dr. Stern, a former health services
director for the Washington Department
of Corrections who also had previously
worked for CMS, one of Corizon’s predecessor companies, issued a scathing report
in February 2012. With the aid of psychiatrist Dr. Amanda Ruiz, Stern and his team
reviewed ISCI over a six-day period and
met with dozens of prisoners, administrators and Corizon employees.
Stern stated in the report’s executive
summary: “I found serious problems with
the delivery of medical and mental health
care. Many of these problems have either

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Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 33 of 90

resulted or risk resulting in serious harm to
prisoners at ISCI. In multiple ways, these
conditions violate the rights of prisoners at
ISCI to be protected from cruel and unusual
punishment. Since many of these problems
are frequent, pervasive, long-standing, and
authorities are or should have been aware
of them, it is my opinion that authorities
are deliberately indifferent to the serious
health care needs of their charges.”
The report found that prisoners who
were terminally ill or in long-term care
were sometimes left in soiled linens, given
inadequate pain medication and went for
long periods without food or water. The
findings regarding sick call noted instances
in which prisoners’ requests either resulted
in no care, delayed care or treatment that
was deemed dangerous. Emergency care
situations had insufficient oversight, delays
or no response; inadequately trained medical staff operated independently during
emergencies without oversight from an
RN or physician. The report also found
problems with the pharmacy and medication distribution at ISCI.
In one case, a prisoner with a “history
of heart disease was inexplicably dropped

from the rolls of the heart disease Chronic
Care Clinic.” As a result, medical staff
stopped conducting regular check-ups and
assessments related to the prisoner’s heart
condition. A few years later the prisoner
went in for a routine visit, complaining
of occasional chest pain. No evaluation or
treatment was ordered and the prisoner
died four days later due to a heart attack. In
another case, Corizon staff failed to notify
a prisoner for seven months that an X-ray
indicated he might have cancer.
Dr. Stern’s report not only reviewed
processes but also staff competency and
adequacy. The report cited allegations that
a dialysis nurse at ISCI overtly did not like
prisoners, and routinely “failed to provide
food and water to patients during dialysis,
prematurely aborted dialysis sessions or
simply did not provide them [dialysis] at all
and failed to provide ordered medications
resulting in patients becoming anemic.”
Stern concluded that prison officials were
aware of this issue and the danger it presented to prisoners, but “unduly delayed
taking action.”
The mental health care provided by
Corizon at ISCI was found to be deficient

by Dr. Ruiz, who conducted the psychiatric portion of the court-ordered review.
The report noted that the facility had 1)
inadequate “screening of and evaluating
prisoners to identify those in need of mental
health care,” 2) “significant deficiencies in
the treatment program at ISCI” which was
“violative of patients’ constitutional right
to health care,” 3) an “insufficient number
of psychiatric practitioners at ISCI,” 4)
incomplete or inaccurate treatment records,
5) problems with psychotropic medications,
which were prescribed with no face-to-face
visits or follow-up visits with prisoners and
6) inadequate suicide prevention training.
The report concluded: “The state of
guiding documents, the inmate grievance
system, death reviews and a mental health
CQI [continuous quality improvement]
system at ISCI is poor. While not in and of
themselves unconstitutional, it is important
for the court to be aware of this and its possible contribution to other unconstitutional
events.”
In March 2012, shortly after Dr.
Stern’s report was released over the objection of state officials, Corizon disagreed
with its findings. The company retained

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Prison Legal News

7

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 34 of 90
Privatized Healthcare Problems (cont.)
the National Commission on Correctional
Health Care (NCCHC) to review the
report. Corizon described the review as an
“independent assessment,” even though it
was paying NCCHC accreditation fees.
The NCCHC review consisted of a
three-person team assessing the facility
over a two-day period in April 2012. Unlike
Stern’s assessment of medical and mental
health care, the NCCHC team did not
interview prisoners or include a psychiatrist.
Regardless, the agency concluded that “The
basic structure of health services delivery at
ISCI meets NCCHC’s standards.”
Corizon stated in a press release that
Dr. Stern’s report was “incomplete, mislead-

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ing and erroneous,” and then-CEO Rich
Hallworth appeared in a video defending
the company. The NCCHC had previously
accredited Corizon’s healthcare services at
ISCI, thus in essence the NCCHC’s review
was self-validating the organization’s prior
accreditation findings. Also, according to
NCCHC’s website, two Corizon officials
sit on the agency’s health professionals
certification board of trustees.
Corizon’s criticism of Dr. Stern’s report
is just one example where the company has
objected to an independent, third-party assessment of its medical services. The Balla
case settled in May 2012 after 30 years of
litigation. [See: PLN, Feb. 2013, p.40].

deteriorate and die,” the complaint stated.
“That is just the attitude of these guys,
is saving money rather than providing
health care,” said Michael K. Sutherlin, the
attorney representing Wood’s family.
Prison officials reportedly moved
Wood among several different prisons and
hospitals, and at one point lost track of her
and claimed she had escaped even though
she was still incarcerated.
“She died a horrible death and she died
alone,” stated her father, Claude Wood. The
lawsuit remains pending. See: Williams v. Indiana DOC, Marion County Superior Court
(IN), Case No. 49D05-1401-CT-001478.

Indiana DOC

In an October 2013 Bangor Daily News
article, Steve Lewicki, coordinator of the
Maine Prisoner Advocacy Coalition, discussed the state of healthcare in Maine’s
prison system. “Complaints by prisoners are
less,” he said, noting that while medical services provided to prisoners are better than in
the past, there are still concerns. This relative
improvement coincided with the end of the
state’s contract with Corizon. The contract,
valued at approximately $19.5 million, was
awarded to another company in 2012.
A year earlier, the Maine legislature’s
Office of Program Evaluation and Government Accountability (OPEGA) completed
a review of medical services in state prisons.
The agency contracted with an independent
consultant, MGT of America, to conduct
most of the fieldwork, and the review included services provided under Corizon’s
predecessor company, CMS.
The OPEGA report, issued in November 2011, cited various deficiencies in
medical care at Maine prisons – including
medications not always being properly

Following a competitive bidding
process, Corizon was selected to continue
providing medical care to Indiana state
prisoners under a three-year contract effective January 1, 2014. The contract has a cap
of $293 million, based on a per diem fee of
$9.41 per prisoner.
Three weeks later, a lawsuit filed in federal court named Corizon and the Indiana
Department of Correction as defendants
in connection with the wrongful death of
prisoner Rachel Wood. Wood, 26, a firsttime drug offender, died in April 2012; the
suit, filed on behalf of her family, claims she
was transferred from prison to prison and
denied care for her serious medical conditions, which included lupus and a blood
clotting disorder.
“Notwithstanding the duty of the
prison medical staff to provide adequate
medical care to Rachel and to treat her very
serious life threatening conditions, prison
medical staff willfully and callously disregarded her condition, and allowed Rachel to

Maine DOC

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Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 35 of 90

administered and recorded by CMS staff.
Although the company was notified of the
problem, no corrective action was taken.
CMS employees did not follow policies related to medical intake and medical records;
OPEGA reported that 38% of prisoners’
medical files had inadequate or inaccurate
documentation regarding annual physical
assessments, and that files were not complete or consistently maintained. The report
found 11% of sick calls reviewed were either
not resolved timely or had no documented
resolution. OPEGA also criticized CMS
for inadequate staff training.
At a January 2012 legislative committee hearing, state Senator Roger Katz
asked Corizon regional vice president
Larry Amberger, “My question to you is in
light of this history, why should the state
seriously be considering any proposal your
company might make to get this contract
back again?”
In response, Amberger criticized the
methodology used by MGT during the
assessment and said he believed Corizon
provided quality medical care. Questioning and challenging the findings of an
independent reviewer is the same tactic
the company used in Idaho. Regardless,
Corizon’s contract to provide medical care
to Maine state prisoners is now a part of
history.

Louisville, Kentucky
While some jurisdictions, like Maine,
have chosen not to renew their contracts
with Corizon due to performance-related

problems, in 2013 the Metro Department of
Corrections in Louisville, Kentucky (LMC)
offered the company a chance to rebid for
its $5.5 million contract to provide medical
care at the LMC jail. This time, however, it
was Corizon that said “no thanks.”
The rebid offer was made even though
seven healthcare-related prisoner deaths
occurred in a seven-month period in 2012
during Corizon’s prior contract, which
expired in February 2013. Nevertheless,
LMC and Corizon agreed to extend the
contract through July 30, 2013 on a monthto-month basis pending a formal rebid.
After the expiration of the month-tomonth contract extension, Corizon notified
LMC that it was no longer interested in
providing services to the corrections department and would not seek to rebid the
contract. LMC director Mark Bolton told
the Courier Journal he was “surprised” by
the company’s decision. What seems more
surprising is that LMC wanted to continue contracting with Corizon to provide
medical services in spite of the number of
prisoner deaths.
In April 2012, Savannah Sparks, 27, a
heroin addict and mother of three, was arrested and held on shoplifting charges at the
LMC jail. While withdrawing from heroin
she vomited, sweat profusely, could not sit
up, could not eat or drink, and defecated and
urinated on herself. Six days later she was
dead. According to the medical examiner,
her death was due to “complications of
chronic substance abuse with withdrawal.”
A subsequent wrongful death suit

alleged that Corizon and LMC employees were negligent in failing to provide
treatment for Sparks’ opiate addiction and
withdrawal. Corizon settled the suit under
confidential terms. See: May v. Corizon,
Jefferson County Circuit Court (KY), Case
No. 13-CI-001848.
Four months after Sparks’ death, on
August 8, 2012, another LMC prisoner,
Samantha George, died. A lawsuit filed in
Jefferson County Circuit Court claimed
that George was moved from the Bullitt
County Jail to the LMC facility on a charge
of buying a stolen computer. According to
the complaint, she told a Corizon nurse that
she was a severe diabetic, needed insulin,
and was feverish and in pain from a MRSA
infection.
The nurse notified an on-call Corizon
physician, who was not located at the facility and thus could not examine George
in person, to decide if she should be taken
to an emergency room. The doctor recommended monitoring George and indicated
he would see her the next day. George’s
condition rapidly deteriorated while she
was monitored by staff at the jail; she was
found unresponsive a few hours after being
admitted to the facility and pronounced
dead a short time later.
An autopsy concluded that George
died due to complications from a severe
form of diabetes compounded by heart
disease. According to the lawsuit, the Corizon doctor never saw George; among other
defendants, the suit named Corizon and
LMC director Mark Bolton as defendants.

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9

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 36 of 90
Privatized Healthcare Problems (cont.)
The case was removed to federal court,
then remanded to the county circuit court
in October 2013. See: George v. Corizon,
U.S.D.C. (W.D. Ky.), Case No. 3:13-cv00822-JHM-JDM.
A few weeks after George’s death, Kenneth Cross was booked into the LMC jail
on a warrant for drug possession. According
to a subsequent lawsuit, upon Cross’ arrival
at the jail a nurse documented that he had
slurred speech and fell asleep numerous
times during the medical interview. Several hours later he was found unconscious,
then died shortly thereafter due to a drug
overdose. The lawsuit filed by Cross’ estate
alleged that employees at the LMC jail
were deficient in recognizing and treating
prisoners’ substance abuse problems and
that the facility was inadequately staffed
for such medical care.
After the deaths of Sparks, George,
Cross and four other prisoners in 2012,
LMC director Bolton said he believed
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treat prisoners at the jail. According to the
Courier-Journal, Bolton sent an email to his
staff in December 2012 regarding the prisoners’ deaths, stating, “Mistakes were made
by Corizon personnel and their corporation
has acknowledged such missteps.” He further indicated that Corizon employees – not
LMC staff members – were responsible for
the care of the prisoners who died. Six Corizon employees at the LMC jail resigned in
December 2012 during an internal investigation; they were not identified.
Bolton’s criticism was too little, too
late to prevent the deaths of the seven
LMC prisoners, though the jail has since
made improvements to its medical services,
including a full-time detox nurse and new
protocols for prisoners experiencing withdrawal. One could speculate that LMC’s
critique of Corizon might be a litigation
tactic, to deflect responsibility. The fact
remains that seven deaths occurred under
Corizon’s watch and, notwithstanding
those deaths, LMC was willing to renew
its contract with the company.
In January 2014, the Louisville Metro
Police’s Public Integrity Unit concluded
investigations into three of the deaths at the
jail, and criticized both Corizon and LMC.
The Commonwealth Attorney’s Office
found that Sparks’ and George’s deaths were
preventable; however, no criminal charges
were filed. Dr. William Smock, a forensic
examiner who served as a consultant during the investigations, stated with respect
to George’s death: “There is compelling
evidence of a significant deviation from the
standard of care and medical negligence on
the part of the medical providers.”
“I’m glad to see that the government’s
investigation matches exactly what our investigation showed, which is that her death

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and others like hers is easily preventable,”
said Chad McCoy, the attorney representing George’s estate.

Minnesota DOC
After providing medical care to
Minnesota state prisoners for 15 years,
Corizon was not selected when the contract
was rebid in 2013 – despite having submitted the lowest bid. Instead, competitor
Centurion Managed Care was to begin
providing healthcare services in Minnesota’s
prison system effective January 1, 2014 under a two-year, $67.5 million contract.
Corrections Commissioner Tom Roy
said the contract with Centurion was
expected to “deliver significant savings to
taxpayers while improving the quality of
care for offenders.”
According to the Star-Tribune, nine
prisoners died and another 21 suffered
serious or critical injuries in Minnesota
correctional facilities due to delay or denial
of medical care under the state’s previous
contract, which had been held by Corizon
or its predecessor, CMS, since 1998.
That contract was for a fixed annual
flat fee of $28 million. A flat fee contract
provides an incentive for the contractor
to tightly control costs, as a reduction in
expenses results in an increase in profit. The
Star-Tribune found that many of the staffing arrangements negotiated in the contract
played a role in the deaths and injuries. For
example, the contract allowed Corizon
physicians to leave at 4:00pm daily and did
not require them to work weekends. During
off-hours there was only one doctor on call
to serve the state’s entire prison system, and
many of the off-hour consultations were
done telephonically without the benefit
of the prisoner’s medical chart. Under the

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Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 37 of 90

contract, Corizon was not required to staff
most facilities overnight.
The Minnesota Department of Corrections was held liable for nearly $1.8 million
in wrongful death and medical negligence
cases during the period when the state
contracted with Corizon or CMS.
In October 2012, a jury in Washington
County awarded Minnesota prisoner Stanley Riley more than $1 million after finding
a Corizon contract physician, Stephen J.
Craane, was negligent in providing medical
treatment. The Star-Tribune reported that
Riley suffered from what turned out to be
cancer and had written a series of pleading
notes to prison officials. One read, “I assure
you that I am not a malingerer. I only want
to be healthy again.”
In May 2013, the state paid $400,000 to
settle a lawsuit over the death of a 27-yearold prisoner at MCF-Rush City. Xavius
Scullark-Johnson, a schizophrenic, suffered
at least seven seizures in his cell on June 28,
2010. Nurses and guards didn’t provide him
with medical care for nearly eight hours.
According to documents obtained by the
Star-Tribune, Scullark-Johnson was found
“soaked in urine on the floor of his cell”

Prison Legal News

and was “coiled in a fetal position and in an
altered state of consciousness that suggested
he had suffered a seizure.” An ambulance
was called several hours later but a nurse at
the prison turned it away, apparently due to
protocols to cut costs. Corizon settled the
lawsuit for an undisclosed sum in June 2013.
See: Scullark v. Garin, U.S.D.C. (D. Minn.),
Case No. 0:12-cv-01505-RHK-FLN.

Philadelphia, Pennsylvania
In Philadelphia, Mayor Michael A.
Nutter has been accused of being too loyal
to his campaign contributors, including
Corizon. The company donated $1,000
to Nutter’s 2012 campaign committee
several months before the city renewed
Corizon’s contract
to provide medical
care to 9,000 prisoners in Philadelphia’s
prison system. Further, PHS donated
$5,000 to Nutter’s
mayoral campaign
in 2008.
The contract
renewal would have

11

been routine except for the fact that Corizon’s performance in Philadelphia has been
far from stellar. In July 2012 the company
agreed to pay the city $1.85 million following an investigation that found Corizon was
using a minority-owned subcontractor that
did no work, which was a sham to meet the
city’s requirements for contracting with
minority-owned businesses.
The renewed year-to-year Corizon
contract, worth $42 million, began in
March 2013. Nutter’s administration
was accused of using the year-to-year arrangement to avoid having the contract
scrutinized by the city council; the city’s
Home Rule Charter requires all contracts
of more than one year to be reviewed by

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 38 of 90
Privatized Healthcare Problems (cont.)
the council. Further infuriating opponents
of the contract, Corizon was not the lowest
bidder. Correctional Medical Care (CMC),
a competitor, submitted a bid that would
have cost the city $3.5 million less per year
than Corizon. Philadelphia Prison Commissioner Louis Giorla defended the city’s
decision to award the contract to Corizon
at a council hearing; however, he declined to
answer questions as to why the administration considered Corizon’s level of care to be
superior to that provided by CMC.
Three union contracts with Corizon
covering 270 of the company’s workers in
Philadelphia’s prison system expired on
November 26, 2013. Corizon demanded
benefit cuts, including changes in employee healthcare programs, to offset wage
increases promised under the company’s
contract with the city. A strike was averted
in December 2013 when the mayor’s office intervened and both sides reached a
settlement. The Philadelphia Daily News
reported that the new union contracts
provide wage increases but also include
a less-generous health insurance plan for
Corizon employees.
Since 1995, Corizon and its predecessor, PHS, have received $196 million in
city contracts. The company’s contract was
terminated for several months in 2002 as a
result of complaints that a diabetic prisoner
had died after failing to receive insulin.
The city renewed the contract anyway, cit-

ing affordability and pledging increased
oversight. The city’s law department estimates that Philadelphia has paid over $1
million to settle lawsuits involving claims
of deficient prison healthcare; the largest
settlement to date is $300,000, paid to a
prisoner who did not receive eye surgery
and is now partially blind.
Based upon the number of lawsuits
filed against Corizon alleging inadequate
medical care, its use of a sham subcontractor and the company’s treatment of its own
employees, it appears that maintaining the
status quo – not best practices – may be the
controlling factor in Philadelphia’s continued relationship with Corizon.

Allegheny County, Pennsylvania
On September 30, 2013, a prisoner
jumped from the top tier of a pod at the
Allegheny County Jail. Following an investigation, authorities refused to make public
their findings and declined to disclose the
prisoner’s injuries, citing medical privacy
laws. The prisoner, Milan Karan, 38, was
not transported to the hospital until the
following day.
A spokesperson for Corizon, which
provides medical care at the 2,500-bed
jail, defended the nearly 24-hour delay by
noting the prisoner “was under observation”
before being sent to a hospital.
In December 2013, the Pittsburgh
Post-Gazette reported that Corizon was
having difficulty staffing the Allegheny
County Jail. When the newspaper requested
a comment from Corizon vice president

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Lee Harrington, Harrington claimed he
had no knowledge of staffing problems –
despite having previously received emails
from the facility’s warden about that exact
issue.
The staffing problems resulted in
prisoners not receiving their medication
in a timely manner. In emails obtained by
the Post-Gazette, Warden Orlando Harper
wrote to Harrington in October 2013, noting, “We are continuing to experience issues
pertaining to the following: 1. Staffing, 2.
Medication distribution.” Also, on November 17, 2013, Deputy Warden Monica Long
sent an email to Corizon and jail staff. “I
was just informed by the Captain on shift,
the majority of the jail has not received
medication AT ALL,” she stated, adding,
“Staffing is at a crisis.”
That crisis had been ongoing since Corizon assumed the medical services contract
at the facility on September 1, 2013. Before
the $62.55 million, five-year contract was
awarded, Corizon vice president Mary Silva
wrote in an email that it was imperative the
jail have “adequate staffing on ALL shifts.”
That promise was made despite Corizon
laying off many of the former employees
of Allegheny Correctional Health Services,
the jail’s previous healthcare provider.
Allegheny Correctional had provided
four full-time and one part-time physician
during its contract tenure. Corizon reduced
the number of doctors to one full-time and
one part-time physician. Allegheny Correctional also employed three psychiatrists
and one psychologist. Corizon’s contract

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March 2014

12

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 39 of 90

requires that it provide one full-time psychiatrist and a part-time psychologist.
In January 2014, the United Steelworkers union (USW) filed a petition with the
National Labor Relations Board to unionize Corizon employees at the Allegheny
County Jail, including nurse practitioners,
RNs, physician assistants and psychiatric
nurses. USW representative Randa Ruge
indicated that the Corizon workers had approached the union for representation due
to intolerable working conditions.
“Our folks [Corizon employees] are in
danger of losing their licenses to practice
by some of the things that the company
has them doing,” she said. Ruge told the
Post-Gazette that the jail had run out of
insulin for more than a week and Corizon
supervisors had “countermanded doctors’
orders.”
Several weeks after the USW filed the
labor petition, a Catholic nun who worked
as an RN at the jail was fired by Corizon,
allegedly for union organizing activities.
Sister Barbara Finch was dismissed after
she openly expressed concerns about staffing, patient care and safety at the facility.
The USW filed an unfair labor complaint
against Corizon regarding Finch’s dismissal,
claiming she was terminated in retaliation
for her union activities.
“This is a clear case of intimidation
and union-busting at its worst,” said USW
President Leo W. Gerard. “Sister Barbara
has been an outspoken advocate of change
for these courageous workers and their
patients, and this kind of illegal and unjust

action, unfortunately, is par for the course
with Corizon.”
On February 14, 2014, Corizon employees at the Allegheny County Jail voted
overwhelmingly to unionize. “The next step
is getting to the bargaining table and getting Corizon to bargain in good faith and
get some changes made in the health system
at the jail,” said Ruge.
The previous week, Allegheny County
Controller Chelsa Wagner stated she had
“grave and serious concerns” about medical
care at the facility, including issues related
to staffing and treatment for prisoners with
certain mental health conditions. “I regard
the current situation as intolerable and
outrageous, and I fully expect necessary
changes to be urgently implemented,” she
wrote in a letter to Corizon.

Polk County, Iowa
On August 29, 2013, Ieasha Lenise
Meyers, incarcerated at the jail in Polk
County, Iowa on a probation violation, gave
birth on a mattress on the floor of her cell.
Her cellmates assisted with the delivery.
Earlier, when Meyers, 25, had complained
of contractions, a Corizon nurse called an
offsite medical supervisor and was told to
monitor the contractions and check for
water breaking.
Despite Meyers having been twice sent
to a hospital earlier the same day, and pleading that she was about to give birth, the
nurse did rounds in other parts of the jail.
Guards reportedly did not check on Meyers as required, even though the birth could

be seen on a nearby security monitor. Only
after the baby was born was medical care
provided. Sheriff Bill McCarthy defended
the actions of jail staff.

Corizon Employee Misconduct
Like most private contractors that
provide prison-related services, Corizon
tends to cut costs in terms of staffing and
operational expenses. As noted above, this
includes paying lower wages, providing fewer
or inferior benefits and hiring less qualified
workers who can be paid less. Sometimes,
however, these practices result in employees
more like to engage in misconduct.
At the Pendleton Correctional Facility
in Indiana, a Corizon nurse was arrested
and charged with sexual misconduct, a Class
C felony. The Herald Bulletin reported that
in April 2013, when Colette Ficklin was
working as a contract nurse for Corizon,
she convinced a prisoner to fake chest pains
so they could be alone in an exam room. A
guard told internal affairs officers that she
witnessed Ficklin and the prisoner engaging
in sex acts in the prison’s infirmary. [See:
PLN, Sept. 2013, p.17].
In March 2013 at the Indiana State
Prison in Michigan City, a Corizon practical nurse was charged with drug trafficking
and possession with intent to distribute.
Phyllis Ungerank, 41, was arrested and
booked into the LaPort County Jail after
attempting to smuggle marijuana into the
facility. [See: PLN, July 2012, p.50].
A Corizon nurse at the Volusia County
Branch Jail in Daytona Beach, Florida

(Void in New York)

Somers, CT.)

Prison Legal News

13

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 40 of 90
Privatized Healthcare Problems (cont.)
was fired after officials learned she was
having sex with and giving money to a
prisoner. Valerie Konieczny was terminated
on December 18, 2012 when the jail was
contacted by the brother of prisoner Randy
Joe Schimp, who had written in a letter
that a nurse was having sex with him and
depositing money into his jail account. Investigators determined that Konieczny was
the nurse who had sex with Schimp at both
the Volusia County facility and another
branch jail in 2011.
In New Mexico, Corizon physician
Mark Walden was accused of fondling
prisoners’ genitals and performing prostrate
exams that were “excessive and inappropriate in terms of length and method.” At
times, Walden reportedly did not wear
gloves during the prostate exams. He was
accused of sexually abusing 25 or more male
prisoners while employed as a doctor at two
privately-operated facilities, the Guadalupe
County Correctional Facility in Santa Rosa
and Northeast New Mexico Detention
Facility in Clayton.

Lawsuits were filed against Walden,
Corizon and private prison operator GEO
Group, and Walden’s medical license was
suspended in December 2013. The suits
claim that Corizon allowed Dr. Walden to
work at the Clayton prison “despite knowing of the risk of sexual abuse and having
the ability to know that [he] was repeatedly
sexually abusing patients” at the Santa Rosa
facility. [See: PLN, Sept. 2013, p.47].

The Privatization Model
Economics professors Kelly Bedard
and H.E Frech III at the University of
California at Santa Barbara examined the
privatization of correctional medical services
in their research study, “Prison Health Care:
Is Contracting Out Healthy?,” published in
Health Economics in November 2009.
They concluded: “We find no evidence
to support the positive rhetoric regarding
the impact of prison health care contracting
out on inmate health, at least as measured
by mortality. Our findings of higher inmate mortality rates under contracting out
are more consistent with recent editorials
raising concerns about this method of delivering health care to inmates.”

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March 2014

14

Today, five years after the Bedard-Frech
report was published, it has the benefit of
hindsight. Since the report was written, its
findings and conclusions have been reaffirmed in prisons and jails across the nation
that have contracted with private companies
to provide medical care to prisoners. Cost
reductions in the provision of correctional
healthcare tend to result in greater inefficiencies that lead to poorer outcomes.
Consequently, for-profit medical contractors
may actually be increasing morbidity and
mortality in prison and jail populations.
Many governmental entities are willing to outsource correctional healthcare
to private companies; reasons for doing
so include cutting costs, risk management
and removing healthcare duties from corrections departments. If Corizon’s record
with respect to providing medical care to
prisoners seems dismal, the company can
always defend its actions by stating it does
what it has been hired to do: Cut costs for
its customers. And those costs have been
rising due to an increasingly aging, and thus
medically-needy, prison population. [See:
PLN, Nov. 2012, p.22; Dec. 2010, p.1].
With respect to risk management,
litigation is not a compelling issue within
the prison healthcare industry and Corizon
views lawsuits as simply a cost of doing
business. “We get sued a lot, but 95% or
97% of cases were self-represented cases,”
ex-CEO Rich Hallworth was quoted in an
August 2013 article. He added that most
lawsuits settle for an average of less than
$50. Of course it is difficult for prisoners
to obtain representation to pursue litigation – unless it’s a wrongful death case, and
then usually their family or estate is doing
the suing.
Nor are the public agencies that contract with private medical providers greatly
concerned about their litigation records. In
fact, when Florida contracted with Corizon
and Wexford Health Sources to provide
medical care for the state’s entire prison
system, the Florida Department of Corrections didn’t ask the companies about their
litigation histories – such as lawsuits raising
claims of deliberate indifference, negligence
and medical malpractice.
“What really troubles me about this
is the fact that the department didn’t ask
these very basic, elemental questions any
system would ask,” observed ACLU National Prison Project staff attorney Eric
Balaban. “These two vendors were taking
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 41 of 90

over Florida’s massive health care system
and you’d think they would have asked hard
questions to determine if these companies
can provide these services within constitutional requirements.”
Even worse, the downgrading of
Corizon’s debt rating by Moody’s in 2013
creates a potential problem for the company’s service delivery model. The majority
of Corizon’s revenue is derived from contracts with state and local agencies that are
trying to reduce their budgetary expenses.
Given those fiscal pressures and competition from Wexford, Armor, Centurion
and other prison healthcare companies,
Corizon cannot easily increase its revenue
through contractual price increases. But
the company’s expenses are largely within
its control.
Unfortunately for prisoners, in order
to reduce costs Corizon will likely have to
curtail the quality or quantity of healthcare
services it provides. As noted above, this
can be done by reducing employee wages
or benefits; the company can also cut costs
through understaffing and by limiting
prescription medications or providing
fewer referrals to hospitals and specialists. A
growing trend is to use off-site medical staff
who consult with prisoners through telemedicine. [See: PLN, Dec. 2013, p.34].
The correctional healthcare industry,
comprised of only a few large companies,
is highly competitive. When one company
loses a contract, another is more than will-

Prison Legal News

ing to step in and submit a bid. What really
matters for most government agencies and
policymakers is the bottom line cost.
According to Dr. Marc Stern, the
court-appointed special master in Idaho,
“whoever delivers prison healthcare is
doing it on less than adequate funding
because that’s how much municipalities,
state legislatures and county commissions
are allocating.” He noted that privatization
can be good in some cases and bad in others,
depending on the level of oversight by the
contracting public agency.

15

When Corizon compromises medical
care to save money, such as curtailing the
use of ambulances for emergency transports,
reducing the number of on-site doctors or
sending fewer prisoners to outside hospitals
for needed treatment, government officials
typically fail to take corrective action and
deny responsibility for the resultant deaths
and injuries. Indeed, as with the Idaho
Department of Corrections and LMC in
Kentucky, they sometimes want to reward
the company with renewed contracts.
Why? Because continuity maintains

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 42 of 90
Privatized Healthcare Problems (cont.)
cost control, which is the driving force
behind privatization of prison and jail
medical services.

Conclusion
The intent of this article was to review
Corizon’s performance and practices based
on publicly-available information, including
news reports and court records. Although
the company was formed in June 2011, its
two predecessor firms, PHS and CMS,
littered the news and judicial dockets over
the years with lawsuits and articles involving cases of inadequate healthcare. Thus,
the sins of Corizon’s parents, CMS and
PHS, are forever linked with the progeny
of their merger.
Such past misdeeds could be explained
away had Corizon adopted a new, postmerger culture that was removed from prior
practices under PHS and CMS. However,
many of Corizon’s mid-level and top executives – including ex-CEO Rich Hallworth,
former president Stuart Campbell, chairman Richard H. Miles and a number of vice
presidents – were previously executives with
PHS or CMS. It was during their tenure
at those companies that numerous cases
involving deficient medical care occurred.
The corporate culture of Corizon, as
well as its business model, appears to be
largely the same as those of its predecessors.
Therefore, the only thing that may have
changed as a result of the merger that created Corizon is the company’s name.
Gregory Dober is a freelance writer in healthcare and ethics. He has been a contributing
writer for PLN since 2007 and co-authored

Against Their Will: The Secret History of
Medical Experimentation on Children in
Cold War America, published by Palgrave in
2013. [See: PLN, Nov. 2013, p.36].

Sources: Bloomberg News, Forbes, www.
businessweek.com, Philadelphia Inquirer,
Philadelphia Daily News, The American
Independent, Pittsburgh Tribune-Review,
St. Louis Business Journal, www.browardbulldog.org, Miami Herald, WHAS-TV, The

Tennessean, Courier-Journal, Idaho Business
Review, Associated Press, The Arizona Republic, Maine Public Broadcasting Network,
Bangor Daily News, WANE-TV, Raton
Range, Des Moines Register, Star-Tribune,
The Nation, The Florida Current, www.usw.
org, KPHO-TV, WANE-TV, Tucson Citizen,
WCAV-TV, www.wdrb.com, www.modernhealthcare.com, www.cochs.org, www.wndu.
com, www.afsc.org, www.americanownews.
com

Florida County Agrees to Pay $4 Million
to Deceased Prisoner’s Estate
by Derek Gilna

N

icholas T. Christie, incarcerated
at the Lee County jail in Ft. Myers,
Florida, died on March 31, 2009 after being
repeatedly pepper sprayed by deputies while
strapped to a restraint chair. Following three
years of litigation, Lee County officials
agreed in May 2013 to pay a record settlement of $4 million to Christie’s estate.
The jail’s for-profit medical contractor,
Prison Health Services (PHS), now known
as Corizon, was named as a defendant in the
federal lawsuit and included in the settlement agreement.
The § 1983 suit raised claims related to
Christie’s death under the “Fourth, Eighth
and/or Fourteenth Amendments to the
United States Constitution, the laws of the
United States, and the laws of the State of
Florida.”
The complaint alleged that Christie
was “restrained to a chair with a hood over
his head and face for several hours in the
custody of the Lee County Sheriff, while
being detained on a misdemeanor trespass

charge,” and that medical staff at the jail
failed to provide him with adequate care
after he showed signs of respiratory distress
during and after that incident. Medical personnel, the lawsuit stated, “acted willfully,
wantonly, maliciously, and with reckless
and callous disregard for and deliberate
indifference to the serious medical and
mental health needs of Nick Christie, and
in a manner that shocks the conscience and
offends traditional notions of decency, all
of which led to his wrongful and untimely
death.”
According to the complaint, prior to
and during his placement in the restraint
chair, Christie disclosed to jail staff that he
had “certain serious medical conditions...,
including, but not limited to, Chronic
Obstructive Pulmonary Disease (COPD),
a heart condition, cardiovascular disease,
atrial fibrillation, obesity, gout, back pain,
constipation, and umbilical hernia, all of
which was recorded and documented in Mr.
Christie’s PHS medical chart/record.”

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Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 43 of 90

Further, Christie’s wife had contacted
jail officials to advise them of her husband’s
medical conditions and to inform them he
had not been taking his medication regularly, which often caused him to act in an
erratic manner. When Christie was booked
into the jail, officials confiscated the medications he had with him and failed to refer
him for a proper medical intake evaluation
that would have resulted in the jail reissuing
his prescribed medications to replace those
that were taken.
A report by Florida’s state medical
examiner found the cause of Christie’s
death was “hypoxic encephalopathy, following resuscitation for cardiac arrest, due
to or as a consequence of cardiogenic shock
with congestive heart failure, due to or as a

T

consequence of physiologic stress, following
restraint and noxious effects of Oleoresin
Capsicum” – i.e., the pepper spray used by
sheriff ’s deputies.
The often excessive and abusive use of
“restraint chairs” by corrections officials has
been criticized by prisoners’ rights groups
and has resulted in litigation in other jurisdictions as well. Unfortunately for Christie,
the failure of Lee County jail staff to follow
proper procedures and the failure of PHS
employees to provide adequate medical care
led to his death. And unfortunately for the
county and PHS, those failures resulted
in a $4 million settlement to resolve the
subsequent lawsuit filed by Christie’s estate.
See: Christie v. Scott, U.S.D.C. (M.D. Fla.),
Case No. 2:10-cv-00420-UA-DNF.

Seventh Circuit Upholds Removal
of Prisoner’s Dreadlocks

he Seventh Circuit Court of Appeals has held that an Illinois prisoner’s
religious rights were not violated when
prison officials required him to cut off his
dreadlocks to be transported to a court
hearing.
Peter A. Lewis, incarcerated at the
Dixon Correctional Center, is a member of
a religious sect called the African Hebrew
Israelites of Jerusalem. Consistent with the
requirements of his faith, Lewis took the
voluntary Nazirith vow, which, among other
things, committed him to not cut his hair.
He had previously filed suit against prison
officials, claiming that they infringed his
religious freedom by refusing to let him
have visits unless he agreed to cut his hair.
A 2003 settlement in that lawsuit allowed
Lewis to have visitors if he permitted guards
to search his dreadlocks for contraband
before and after each visit.
Prison officials gave Lewis a choice
in January 2004, when he was scheduled
to appear in federal court. He could either
get a haircut or go to segregation as punishment for eluding (by refusing a haircut)
his scheduled court hearing. Lewis chose
the haircut, then claimed prison officials
knew his court date had been postponed,
depriving them of a security concern that
justified cutting his hair.
A dispute existed as to what prison officials knew about the court date, and when.
It was undisputed, however, that Lewis was
transported to court shortly after the origiPrison Legal News

nally-scheduled court hearing. The Seventh
Circuit wrote, “it is obvious that transporting
prisoners and placing them in courtrooms
presents significant security concerns, warranting protective measures.”
The appellate court held that prison officials’ discretion relative to security-related
matters extends to a determination that
a particular prisoner’s dreadlocks are too
thick or dense to be readily searchable on
a certain occasion, such as a visit to federal
court. There was no evidence that Lewis
was treated differently than other similarly
situated prisoners, nor that the prison’s
security concerns were outweighed by his
interest in engaging in a sincere religious
observance.
The district court’s order granting
summary judgment to the defendant prison
officials was therefore affirmed, and the U.S.
Supreme Court denied Lewis’ petition for
writ of certiorari on October 7, 2013. See:
Lewis v. Sternes, 712 F.3d 1083 (7th Cir.
2013), cert. denied.
The Seventh Circuit had previously
held that an Illinois prison guard violated
a prisoner’s First Amendment rights by
ordering his dreadlocks to be forcibly cut,
and that the guard was not entitled to qualified immunity. However, the appellate court
noted that the facts in that case involved
“outright arbitrary discrimination rather
than a failure merely to ‘accommodate’
religious rights.” [See: PLN, April 2013,
p.44].

17

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March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 44 of 90

From the Editor

T

his month’s cover story on Corizon,
the company formed by the merger of
Prison Health Services and Correctional
Medical Services, is our most recent reporting on an issue that has been ongoing for
the past several decades. Namely, the prison
HMO model whereby corrections agencies contract with for-profit companies to
provide medical services to prisoners, while
the companies’ business model requires that
they delay or deny treatment in order to
make a profit. Not surprisingly this results
in a pattern of deaths, injuries and pain
suffered by prisoners who have no other
options for obtaining medical care.
What is interesting is that despite
decades of abuse, corruption and fraud,
the government entities that contract with
for-profit prison medical providers still fail
to adequately monitor and audit their performance. Even after repeated contractual
violations, if one company’s contract is canceled or expires, the government typically
awards the contract to another corporation
with similar performance problems. Besides
Corizon, other prison medical care companies include Wexford Health Sources,
Centurion, NaphCare, Armor Correctional
Health Services, Correct Care Solutions
and Conmed Health Management.
The notion that such companies should

March 2014

by Paul Wright
actually be required to provide the medical
services for which they are being paid with
taxpayer dollars seems alien to the government officials who enter into these contracts.
If anyone has information on services that
are being contracted by corrections agencies
but not being performed by medical care
providers or other private prison companies,
please contact us with details.
PLN’s website has over 20,000 articles
related to prisons and jails, over 7,000 legal
documents in our brief bank and more than
5,000 documents in our publications library,
and receives over 100,000 visitors a month.

We are in the process of redesigning our
websites for Prison Legal News, the Human
Rights Defense Center and the Campaign
for Prison Phone Justice, to make them easier
to use and navigate and to incorporate all the
technological updates that have occurred since
our last website design. The new sites should
be online within the next several months.
As we move into 2014, our goal is to
increase our circulation by adding another
1,000 print subscribers. You can help by
encouraging others to subscribe or giving
someone a gift subscription. Please consider
doing both, and enjoy this issue of PLN.

Second Circuit Vacates Magistrate’s
Judgment Entered without Consent

O

n March 6, 2013, the Second
Circuit Court of Appeals vacated the
summary judgment dismissal of a New
York prisoner’s lawsuit, finding he had not
consented to having the case decided by a
magistrate judge.
Willie James Yeldon filed suit in federal court against numerous New York and
Wyoming prison and community-based
doctors under 42 U.S.C. § 1983.
Although he expressly declined to
consent to the appointment of a magistrate

18

judge, the district court entered a February 8,
2008 order referring the case to a magistrate
pursuant to 28 U.S.C. § 636(c). The magistrate judge then granted summary judgment
to the defendants on all of Yeldon’s claims.
On appeal, the Second Circuit noted
it had previously held in N.Y. Chinese TV
Programs, Inc. v. U.E. Enterprises, 996 F.2d
21 (2d Cir. 1993) that consent to appoint a
magistrate judge must be “truly voluntary,”
and “consent of all parties must be clear
and express or the requirement would
mean little.”
Recognizing that Yeldon had expressly
refused to consent to a magistrate, the
Court of Appeals could not find on the record before it that he gave implied consent
by failing to object to the district court’s
February 2008 order.
“As a pro se litigant, he may not have
appreciated that participating in proceedings
before the Magistrate Judge could impugn
the effectiveness of his written refusal to
consent,” the appellate court wrote.
Since “the lack of consent is a jurisdictional defect that cannot be waived,”
the Court of Appeals found the magistrate
lacked authority to enter final judgment
under 28 U.S.C. § 636(c)(1), and that the
Court consequently lacked jurisdiction to
review that judgment. The Second Circuit
therefore vacated the judgment, holding
that Yeldon had not consented to the appointment of a magistrate judge. See: Yeldon
v. Fisher, 710 F.3d 452 (2d Cir. 2013).
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 45 of 90

State of Washington
Prison Phone Justice Campaign!
Prison Phone Justice Project needs your help for statewide campaign!

W

hile much progress has been made in reducing the costs of long distance prison calls, we are

still fighting to reduce the high costs of in-state prison and jail calls at the local level. In Janu-

ary 2014, the Human Rights Defense Center (HRDC), the parent organization of Prison Legal News,
reopened its Seattle office to launch the Washington Prison Phone Justice Campaign.

This is our first statewide phone justice campaign, and we’re excited to have people involved on both
the local and national levels who are dedicated to ending the exorbitant phone rates and kickbacks

associated with the prison phone industry. David Ganim, HRDC’s national Prison Phone Justice Di-

rector, has already been obtaining the phone contracts and rates for all 39 county jails in Washington,
as well as data from the Washington Department of Corrections.

We recently hired a local campaign director, Carrie Wilkinson, who will manage our office in Seattle

and coordinate the statewide campaign. Washington prisoners and their families pay some of the
highest phone rates in the nation, and we need your help to win this battle!

Here’s how you can help – first, please visit the Washington campaign website:

www.wappj.org
There you can see all the ways you can make a difference. The site allows you to sign up for the campaign and upload videos and share blog entries about how high prison phone rates make it difficult

for you to stay in touch with your incarcerated loved ones. You can also upload an audio message,

and even call in your story to 1-877-410-4863, toll-free 24 hours a day, seven days a week! We need

to hear how you and your family have been affected by high prison phone rates. If you don’t have
Internet access, you can mail us a letter describing your experiences and we’ll post it. Send letters to

HRDC’s main office at: HRDC, Attn: WA Phone Justice Campaign, P.O. Box 1151, Lake Worth, FL
33460. Washington state prisoners can mail us letters and send a copy of this notice to their family
members so they can get involved.

By choosing to participate in the Washington Prison Phone Justice Campaign, you will be playing
a key role in ending the unfair phone rates that prisoners’ families have to pay. We cannot win this

battle without your help, so please visit the campaign website and share your experiences! Donations
are also welcome and greatly appreciated, and can be mailed to the above address or made online
via the campaign site. Thank you for your support!

Prison Legal News

19

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 46 of 90

Why There’s an Even Larger Racial Disparity
in Private Prisons Than in Public Ones
by Katie Rose Quandt

I

t ’s well known that people of
color are vastly overrepresented in U.S.
prisons. African-Americans and Latinos
constitute 30 percent of the U.S. population
and 60 percent of its prisoners. But a new
study by University of California-Berkeley
researcher Christopher Petrella addresses
a fact of equal concern. Once sentenced,
people of color are more likely than their
white counterparts to serve time in private
prisons, which have higher levels of violence
and recidivism and provide less sufficient
health care and educational programming
than equivalent public facilities. [See: PLN,
March 2013, p.16].
The study compares the percentage of
prisoners identifying as black or Hispanic
in public prisons and private prisons in nine
states. It finds that there are higher rates
of people of color in private facilities than
public facilities in all nine states studied,
ranging from 3 percent in Arizona and
Georgia to 13 percent in California and
Oklahoma. According to Petrella, this disparity casts doubt on cost-efficiency claims
made by the private prison industry and
demonstrates how ostensibly “colorblind”
policies can have a very real effect on people
of color.
The study points out an important link
between prisoner age and race. Not only do
private prisons house high rates of people
of color, they also house low rates of individuals over the age of 50 – a subset that
is more likely to be white than the general
prison population. According to the study,
“the states in which the private versus public
racial disparities are the most pronounced
also happen to be the states in which the
private versus public age disparities are
most salient.” (California, Mississippi and
Tennessee did not report data on prisoner
age).
Private prisons have consistently lower
rates of older prisoners because they often
contractually exempt themselves from
housing medically expensive – which often
means older – individuals, which helps
them keep costs low and profits high. This
is just another example of the growing
private prison industry’s prioritization of
profit over rehabilitation, which activists
March 2014

say leads to inferior prison conditions and
quotas requiring high levels of incarceration
even as crime levels drop. The number of
state and federal prisoners housed in private
prisons grew by 37 percent from 2002 to
2009, reaching 8 percent of all prisoners
in 2010.
The high rate of incarceration among
young people of color is partly due to the
war on drugs, which introduced strict sentencing policies and mandatory minimums
that have disproportionately affected nonwhite communities for the past 40 years.
As a result, Bureau of Justice Statistics
data shows that in 2009, only 33.2 percent
of prisoners under 50 reported as white, as
opposed to 44.2 percent of prisoners aged
50 and older.
So when private prisons avoid housing older prisoners, they indirectly avoid
housing white prisoners as well. This may
explain how private facilities end up with “a
prisoner profile that is far younger and far
‘darker’ ... than in select counterpart public
facilities.”
Private prisons claim to have more efficient practices, and thus lower operating
costs, than public facilities. But the data
suggest that private prisons don’t save mon-

20

ey through efficiency, but by cherry-picking
healthy prisoners. According to a 2012
ACLU report, it costs $34,135 to house an
“average” prisoner and $68,270 to house
an individual 50 or older. In Oklahoma,
for example, the percentage of individuals
over 50 in minimum- and medium-security
public prisons is 3.3 times that of equivalent
private facilities.
“Given the data, it’s difficult for private
prisons to make the claim that they can
incarcerate individuals more efficiently
than their public counterparts,” Petrella tells
Mother Jones. “We need to be comparing
apples to apples. If we’re looking at different
prisoner profiles, there is no basis to make
the claim that private prisons are more efficient than publics.”
He compared private prisons to charter
schools that accept only well-performing
students and boast of their success relative
to public schools.
David Shapiro, former staff attorney at
the ACLU National Prison Project, agrees.
“The study is an example of the many ways
in which for-profit prisons create an illusion of fiscal responsibility even though
the actual evidence of cost savings, when
apples are compared to apples, is doubtful

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 47 of 90

at best,” he says. “Privatization gimmicks
are a distraction from the serious business of addressing our addiction to mass
incarceration.”
But in addition to casting doubt on
the efficacy of private prison companies,
Petrella says his results “shed light on the
ways in which ostensibly colorblind policies
and attitudes can actually have very racially
explicit outcomes. Racial discrimination
cannot exist legally, yet still manifests
itself.”
Alex Friedmann, managing editor of
Prison Legal News, calls the study a “compelling case” for a link between age disparities and
race disparities in public and private prison
facilities. “The modern private prison industry has its origins in the convict lease system
that developed during the Reconstruction
Era following the Civil War, as a means of
incarcerating freed slaves and leasing them
to private companies,” he says. “Sadly, Mr. Petrella’s research indicates that the exploitation
of minority prisoners continues, with convict
chain gangs being replaced by privatelyoperated prisons and jails.”

states – Arizona, California, Colorado, Georgia, Mississippi, Ohio, Oklahoma, Tennessee
and Texas – selected because they house at
least 3,000 individuals in private minimumand medium-security facilities.

Katie Rose Quandt is an online editorial fellow at Mother Jones. This article was originally
published by Mother Jones (www.motherjones.
com) on February 17, 2014; it is reprinted with
permission, including the accompanying charts.

* The study draws on data from nine

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Prison Legal News

21

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 48 of 90

Arrest-Proof Yourself, by Dale Carson and Wes Denham
(Chicago Review Press, 2007). 282 pages (paperback), $14.95.
Book review by John E. Dannenberg

I

n short, Arrest-P roof Yourself is a
colorfully-written manual on how to avoid
being arrested. The book’s principal thesis is
a hypothetical “electronic plantation” where
all persons who are arrested – even if later
exonerated – must serve an irrevocable life
sentence of being blacklisted from future

employment, socially ostracized, etc. as a
result of their arrest record. The book is written in street language to garner the attention
of younger people who, statistically, are more
likely to face arrest. The authors emphatically
counsel the reader, wherever possible, to
simply avoid being seen by the police; but if
stopped, they provide advice on how to act
and, more importantly, how not to act.
Authors Carson and Denham speak
from years of experience: Carson was a
former police officer in both state and federal jurisdictions while Denham is a private
investigator. Carson, now a defense attorney, today defends the very people who, in
Arrest-Proof Yourself, he tries to prevent from
needing his services. Throughout the book
the authors speak about how police officers
love to arrest people, which not only makes
them happy but also improves their job
performance reviews. Accordingly, police are
not motivated to help little old ladies cross
the street but rather to arrest as many people
as they can. The means by which people are
targeted for arrest, and whether they are arrested following a police stop, are the central
topics of Arrest-Proof Yourself.
Those targeted for arrest are not the
rich and famous, who have good attorneys
and money to influence prosecution decisions, but rather the average person who is
less educated and lacks street smarts. Those
are the people who comprise the millions
arrested each year for misdemeanors, traffic violations and petty crimes – mostly
non-violent offenses. Arrest-Proof Yourself

examines why they are even stopped by
police officers, let alone arrested.
Most people are not arrested for something they do in plain view of the police but
for incidental things during the course of a
routine stop and search. This commonly occurs when people are pulled over in vehicle
stops – such as for a defective brake light
– and an incidental search reveals drugs,
weapons or stolen property in plain sight.
If the suspect doesn’t have a good attitude,
can’t produce ID, registration or insurance,
is in the “wrong neighborhood,” has outstanding unpaid tickets or warrants, or has
medication without a copy of the doctor’s
prescription, then he or she is likely to be arrested rather than receive a citation. And that
arrest record, standing alone, will destroy the
person’s otherwise clean record for all time
due to the ubiquitous online data that follows everyone wherever they go; those once
upstanding citizens are consigned forever to
the “electronic plantation.”
Arrest-Proof Yourself is written in an
arrogant style, demonstrating through the
authors’ experience the nature of police officers to arrest as many people as possible.
The treatment of suspects is described as
demeaning, revealing an unfair and biased
arrest process that primarily targets the
less fortunate and impoverished. Although
published in 2007, this book provides information that remains timely today and is a
sobering wake-up call. Arrest-Proof Yourself
is available in PLN’s bookstore on page 62
of this issue.

Introducing THE BUZZ REPORT! Subscribe today, and get all of
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March 2014

22

Prison Legal News

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March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 50 of 90

When Victims Speak Up in Court – in Defense of the Criminals
by Andrew Cohen
A death penalty case in Colorado has generated an unusual f ight between a district
attorney and two parents who oppose capital
punishment against the man who murdered
their son.

O

ne of the most profound changes
in criminal justice over the past 40
years has been the rise of the victims’ lobby.
Essentially shut out of the core of the
process until the 1970s, the victims’ rights
movement today can cite legislation from
sea to sea, chapter and verse under both
federal and state laws, that broadens the
rights of victims to participate in the trials
of those accused of harming them or their
families. The Department of Justice’s 2012
“Attorney General Guidelines for Victim
and Witness Assistance,” for example, totals
66 pages and barely scratches the surface of
what similar state guidelines reveal.
The immutable trio that once existed
in criminal cases – judge, prosecutor and
defendant – now almost always resembles
a quartet. Victims have a voice – and they
use it. All 50 states now allow some form
of “victim impact statement” at sentencing. Because such statements are often so
compelling to jurors, defense attorneys frequently seek ways to blunt their impact. But
these efforts almost always fail. Even judges
who are sympathetic to the constitutional
rights of defendants, who fret about the
prejudicial impact of victim testimony, say
they are bound by legislative declarations
broadening the scope of victim participation
in criminal cases.
But a pending Colorado case raises

a profound question that few judges (or
prosecutors or jurors) ever have to confront:
What happens when the victims of violent
crime seek to speak out on behalf of the
defendant and not the state? What happens when the family members of a murder
victim seek leave to beg jurors at sentencing
to spare the life of the man who killed their
son? What responsibility does the prosecutor have in that case? What obligations do
the courts have? Do victims’ rights sound
only when they favor the government and
the harshest sentence, or do they sound as
well when they cry out for mercy?
So far, the prosecutor in the case, Arapahoe County District Attorney George
Brauchler, has answered those questions
clearly: He wants to block one couple’s efforts to speak out against the death penalty
for the man who murdered their child.
Brauchler has filed a motion in a pending
case seeking to bar Bob and Lola Autobee
from participating in the sentencing phase
of the trial of Edward Montour, their son’s
killer. The law only guarantees the rights of
victims to “discuss the harm that resulted
from the crime,” Brauchler argues. But I
haven’t been able to find a single victims’
right advocate who believes that’s true.

People of the State of
Colorado v. Montour

There doesn’t seem to be much doubt,
reasonable or otherwise, that Edward Montour killed Colorado corrections officer Eric
Autobee in a prison kitchen on October
18, 2002. (Montour was in that kitchen,
and in that prison, because he was serving a life sentence
for killing his infant
daughter). Less than
FULTON & WELCH one year after Autobee’s death, Montour
TEXAS PAROLE
pleaded guilty to
ATTORNEYS
first-degree murder
o AFFORDABLE
and was quickly seno PERSONALIZED PACKET
tenced to death by a
o 2 HEARINGS
Colorado judge. But
o MEET WITH YOU & FAMILY
that death sentence
was overturned, in
2007, after the U.S.
“LET US GET YOU HOME SOONER”
Supreme Court ruled
10701 Corporate Dr., Ste. 390,
in Ring v. Arizona
Stafford, Texas 77477
that judges alone,

March 2014

24

without juries, could not impose death
sentences.
Then, last year, a trial judge overturned
Montour’s conviction and allowed him to
withdraw his initial guilty plea in the Autobee killing. Montour was not adequately
defended by a lawyer at the time of that
plea, the judge ruled, and had a documented
history of mental illness. A new trial was
ordered. Montour, through his attorney,
said he would re-plead guilty to Autobee’s
murder if he could be spared the death penalty and receive a(nother) sentence of life in
prison without the possibility of parole. The
prosecutor, Brauchler, rejected the offer and
went ahead instead with the now-pending
capital case against Montour.
The last time Montour faced trial for
Autobee’s death, the victim’s family supported
the death penalty as an option. Not this time.
This time, having educated themselves about
capital punishment, and better understanding the nature of Montour’s mental illness at
the time of Eric’s death, the Autobees have
been vocally, stridently, ceaselessly against
the imposition of death in this case. In January 2014, for example, as potential jurors in
the Montour case were lined up outside the
courthouse waiting to learn about the case for
which they were summoned, the Autobees
picketed the line and pleaded with Brauchler
to spare their son’s killer.
Episodes like this – and the media attention they inevitably generated
– prompted Brauchler, the prosecutor in the
Montour case, to remove the family from
his preliminary list of witnesses to be called
during the sentencing of the case. And that
removal, in turn, has prompted Montour’s
attorneys to ask the trial judge in the case
to allow the Autobees to testify during
sentencing. That prompted an aggressive
response from Brauchler, arguing that
Colorado’s victims’ rights laws don’t apply
to “mitigating” factors during sentencing
but only to “aggravating factors.” And that
is where we stand today.

The Autobees
The parents of the victim have spoken,
and eloquently so, about the reasons why
they have chosen to oppose the death penalty in this case. Below, from a court filing,
is the essence of their claim:
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 51 of 90

“Bob would like any jury considering
the appropriate penalty for Eric’s killer to
know who Eric truly was and how his loss
has impacted the Autobees. The Autobees
loved Eric deeply, and now remember
him for his peace-loving nature, his love
of the outdoors, and his innate desire to
find moments of calm when hunting or
fishing. Eric was a gentle soul who would
hold Bob’s hands even when he was in his
20’s. Eric started his career in the culinary
arts and then, like Bob, became a prison
corrections officer.
“Despite the inhumanity he saw
around him, Eric would not speak disdainfully of prisoners, but, instead, recognized
their human dignity. Eric accomplished
much in his short time on earth – he saved
three lives before he died – but missed out
on even more. It pains the Autobees to
consider the many milestones in Eric’s life
that might have occurred were he still alive,
including marriage, children, and career
advancement.
“The crime affected the Autobees not
just because of their beloved son’s loss, but
also because of who they became after this
loss. After Eric’s death, their warm feelings

of love that Eric always nurtured quickly
turned into cold feelings of vengeance and
violence. Originally, the Autobees fervently
supported the prosecution’s efforts to seek
absolute retribution. Over time, however, and
with reflection, they realized that Eric would
not have wanted this for himself or for them;
Eric would not have wanted someone killed
in his name, nor would he have wanted his
family to live in the darkness of hatred. The
Autobees know this because they know how
Eric lived: by loving life, saving lives, and
extending mercy to the merciless.
“The effect of the crime on the Autobees cannot be separated from this ongoing
death penalty prosecution. Bob and his
family have found healing in the forgiveness
that they have extended to their son’s killer.
However, the prosecution strives to forever
undo this healing by seeking to avenge
one killing with another, over the family’s
pleas for mercy. For the Autobee family,
a death sentence and the accompanying
years of litigation, all supposedly done in
their son’s name, would rob them of peace.
For, in the eyes of society, their son’s name
forever would be associated with cruelty and
violence, rather than the human dignity and

mercy he embodied in life.”

Call and Response
Brauchler surely has no moral answer
for this, and the legal answer he has ginned
up barely passes the straight-face test, but
that has not stopped him from seeking
to silence the Autobees’ voice during the
upcoming trial. “To permit testimony
concerning the victims’ general view of the
death penalty or whether this particular
defendant should be executed or given a life
sentence invades the province of the jury
and should not be permitted,” prosecutors
told the judge. Can you imagine them making that argument if the Autobees were still
advocating for Montour’s death?
Colorado law “only guarantees the
right of the victims to discuss the harm
that resulted from the crime,” Brauchler
argues, and this limits “evidence from the
victims to the characteristics of the victim
and the impact of the crime on the victim’s
family.” It is “not the court process that can
be attacked by the victims,” prosecutors assert, before claiming that Montour’s Eighth
Amendment rights will be implicated if the
Autobees speak out in his favor. You don’t

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Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 52 of 90
Victims Defend Criminals (cont.)
need to be a lawyer, or a juror, to understand that this is a terrible argument. And
Brauchler cites no controlling Colorado law
in support of it.
In their response, the Autobees’ attorneys seem incredulous as they recite the
provisions of Colorado law that support their
view. “A crime victim,” they told the court,
has the “‘right to appear, personally or with
counsel, at the sentencing proceeding and
to adequately and reasonably express his or
her views’ regarding ‘the type of sentence which
should be imposed by the court.’” Under Colorado law, the Autobees added, “prosecutors are
required to support – not oppose – this right
by ‘inform[ing] each victim of ’ his or her ‘right’
to ‘express an opinion at the sentencing hearing
or any sentence proposed to the court for
consideration’” (emphasis in original).
And then the Autobees shared with
the trial judge what they really think is
happening here. “Because the Autobee family’s beliefs conflict with the prosecutions’
agenda,” the family’s lawyers wrote, “the
prosecution has relegated [them] to the status of second-class victims.” Brauchler has
it all wrong, the family asserts. Prosecutors
should be heeding the wishes of the family members instead of putting their own
priorities first. What the family really is
saying, however, is that the world of victims’
rights is far different than it was 40 years
ago and that prosecutors can’t always have
things their own way.

The Lobby
Although this conflict now is
unfolding in Colorado, it has national implications. The Autobees are not the first

March 2014

family to seek mercy for someone who took
the life of a loved one. And Brauchler isn’t
the first prosecutor to seek to block such a
family from getting through to a jury. In
fact, this sort of dispute happens more often
than you might think. So I called around to
a few national victims’ rights organizations
with a simple question: Does your organization support the families of victims who
oppose the imposition of the death penalty
in a particular case? Here are some of the
responses I received.
From Kristy Dyroff, of the National Organization for Victim Assistance (NOVA):
“We support crime victims in seeking
justice in the way they are comfortable.
There are victims who seek capital punishment and those who strongly oppose it.
Restorative Justice is the term used for this
type of model. It focuses on addressing the
needs of the victim, the offender and the
community, not the justice system.
“It is definitely NOT for all victims/
survivors but there is a significant contingent within the crime victim assistance
network who support this model. At
NOVA, our focus is always on assisting the
crime victims and their families. We are very
careful not to tell them what they need, or
how to heal. We try to educate and support
them in their choices.
“We support the crime victim in pursuing the justice they seek, regardless of the
interests of the prosecutor, law enforcement
or others. Yes, we have supported victims in
the past who object to capital punishment.
We also encourage all other participants
in the process to support and respect the
victims in their position.”
And from Kate Lowenstein, the program director of the group Murder Victims’
Families for Human Rights, whose own
father was murdered:
“More people likely understand that you
can’t automatically assume that losing a loved
one to murder will mean that you support
the death penalty, nor does opposition to
the death penalty mean you don’t want the
killer or killers brought to justice, and it does
not necessarily mean you have forgiven the
murderer. Murder and the justice system are
complicated, as are the views and experiences
of the victims and families who are affected
by it. We must not try to simplify this, but
allow victims their unique and complicated
responses to the trauma and horror of having
a family member murdered and the criminal
justice process that occurs after that.

26

“Despite the wider cultural awareness
of victim opposition to the death penalty,
unequal treatment of victim family members by prosecutors in capital trials is still a
problem, one that exists largely below the
public radar, in District Attorneys offices
across the country, where often victims’
family members don’t know their rights and
there is no one around to step forward and
advocate on their behalf.
“It occurs, for example, that if two
surviving family members want to give a
victim impact statement during the sentencing phase of the trial, the prosecutor
will allow the pro-death penalty survivor to
speak but not the survivor who opposes the
death penalty, regardless of the fact that no
mention of the victims’ views of what the
sentence should be is allowed in Victim
Impact Statements.
“The point is not that victims should
get to determine sentencing. The point is
that victims’ rights should be granted to all
victims, regardless of their position on the
death penalty, or perceived ‘cooperation’
with the District Attorneys office. Disagreeing with the prosecutor – opposing
the death penalty when the prosecutor is
seeking a death sentence – should not mean
that you are silenced, treated as ‘part of the
defense team’ and not a ‘real’ victim, or denied the right to speak about the impact of
the murder on you and your family.”
It’s not the Autobees who are the outliers
here. It’s the prosecutor. He can hardly purport
to serve as the “conscience of the community,”
or claim he is following clear Colorado law by
ignoring the wishes of the one family in the
state that has earned the right to speak at the
Montour trial. Victims’ rights mean rights for
all victims and not just those who toe the government’s line. The jury in Edward Montour’s
case deserves to hear what the Autobees have
to say, the family has a right to say it in court,
and no lawman has the right to come between
that vital communication.
A ruling from the trial judge is expected any day.
Andrew Cohen is a contributing editor at The
Atlantic, 60 Minutes’ first-ever legal analyst
and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio
News and has won a Murrow Award as one
of the nation’s leading legal journalists. This
article was originally published in The Atlantic
(www.theatlantic.com) on January 28, 2014;
it is reprinted with permission.
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 53 of 90

States Renewing Their Prison Phone Contracts
As state DOCs renew or rebid their prison phone contracts, you can help urge them
to eliminate commission kickbacks and lower intrastate phone rates.
The Campaign for Prison Phone Justice needs your help in

***** Minnesota, Kentucky and Alaska! *****
The Departments of Corrections in the above states are in the process of re-bidding or renewing their
prison phone contracts. Most DOCs receive a commission (kickback) on revenue generated from calls
made by prisoners, which results in excessively high phone rates. Although the FCC voted last year
to cap the costs of interstate (long distance) prison calls, which went into effect on February 11, 2014,
the order does not apply to intrastate (in-state) calls; an estimated 85% of prison phone calls are instate. This is an opportunity to ask DOCs to forgo commissions and ensure their new prison phone
contracts are based on the lowest cost to those who pay for the calls – mostly prisoners’ families.

Take Action NOW! Here’s What YOU Can Do!
Ask your family members and friends to write, email, call and fax the DOC and the governor’s office
(addresses and contacts are listed below), requesting that the DOC: 1) forgo commission payments
when re-bidding or renewing its prison phone contract, and 2) base the new contract on the lowest
calling cost. Lower prison phone rates should apply not just to long distance calls but also to in-state
calls. For a sample letter or to easily send an email, visit the Campaign for Prison Phone Justice’s
website and click on the “Take Action” tab:

www.phonejustice.org
Prison phone contract information & Contacts:
Minnesota: Receives a 59% kickback; existing contract expires on 3-31-2014. The DOC charges
$6.45 for a 15-minute collect intrastate call and $1.75 for a collect local call. Contacts: Minnesota
DOC, Commissioner Tom Roy, 1450 Energy Park Drive, Suite 200, St. Paul, MN 55108; ph: 651-3617226 or 651-361-7200, fax: 651-642-0414, email: tom.roy@state.mn.us. Governor Mark Dayton, 130
State Capitol, 75 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155; ph: 651-201-3400, fax:
651-797-1850, email: gmark@gov.state.mn.us or kathy.kostohryz@state.mn.us
Kentucky: Receives a 54% kickback; existing contract expires on 5-31-2014. The DOC charges
$4.50 for a 15-minute collect intrastate call and $1.85 for a collect local call. Contacts: Kentucky
DOC, Commissioner LaDonna Thompson, 275 East Main Street, Frankfort, KY 40602; ph: 502-5644726, fax: 502-564-5037, email: ladonna.thompson@ky.gov. Governor Steve Beshear, 700 State
Capitol, Frankfort, KY 40601; ph: 502-564-2611, fax: 502-564-2517, email: governor@ky.gov
Alaska: Receives a 7 to 32.1% kickback; existing contract expires on 6-30-2014. The DOC charges
$2.63 to $7.61 for a 15-minute collect intrastate call (local calls are free). Contacts: Alaska DOC,
Commissioner Joseph Schmidt, 550 W. 7th Ave., Suite 860, Anchorage, AK 99501; ph: 907-465-4652,
fax: 907-465-3390, email: joseph.schmidt@alaska.gov. Governor Sean Parnell, State Capitol, P.O.
Box 110001, Juneau, AK 99811; ph: 907-465-3500, fax: 907-465-3532, email: governor@alaska.gov

Prison Legal News

27

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 54 of 90

Texas Criminal Court Fees are a Tax on Poor Defendants
by Matt Clarke

T

he Texas legislature has erected
such a hodgepodge of criminal court
fees that even the court administrators and
clerks don’t know how to apply them. These
fees, which are frequently not used for their
intended purposes, amount to a hidden tax
on the poorest members of society ensnared
in Texas’ criminal justice system.
“Sometimes, I can’t even tell my client
what the bill is for,” said Austin defense
attorney David Gonzales.
He is not alone. The Texas Office of
Court Administration (TOCA) receives
“hundreds of calls from court officials about
how to assess and prioritize fines, fees and
surcharges in criminal cases,” according to
a report the agency published in 2009. “The
sprawling number of state and local fees
and court costs that state law prescribes as
a result of a criminal conviction amounts to
a nearly incomprehensible package.”
The fee system is so complex that
people convicted of identical crimes might
be charged vastly different fees, possibly
violating the constitutional guarantee of
equal treatment under the law.
Nor is it always possible to determine
how a particular fee is actually used; typical legislative practice includes the raiding
of fee accounts to balance the budget or
fund pet projects. Some fees, such as the
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$50 clerk’s fee and $25 prosecutor’s fee, go
straight into a county’s general fund where
they can be used to pay for any budget item,
court-related or not.
Every person convicted of a crime in
Texas pays a “Consolidated Court Cost”
fee of $40 for a Class C misdemeanor,
$83 for Class A and B misdemeanors, and
$133 for a felony. All criminal defendants
are also charged at least six additional fees
with titles such as “records management
and preservation fee,” “clerk’s fee,” “county
and district court technology fund fee” and
“courthouse security fee.”
Those arrested with a warrant are
charged a $50 fee; those without a warrant
pay $5. Entering or leaving jail incurs a $5
fee, and DUI defendants are charged a “visual recording fee.” A $30 “state traffic fine”
is imposed on all traffic violations.
“We have a ‘school crossing fee’ that nobody – nobody – can tell me what comes of it,”
observed state Senator John Whitmire, who
chairs the Senate Jurisprudence Committee.
The total bill can easily exceed $600.
The cost for those placed on probation is
much higher: $4,000 to $5,000, according
to a 2009 TOCA survey.
Some of the fees go to the state’s
Compensation to Victims of Crime (CVC)
Fund, administered by the Office of the
Attorney General. The CVC receives revenue from Consolidated Court Cost fees,
restitution installment fees and parole

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administration fees, among other sources.
From 2004 to 2012, the CVC received approximately $100 million per year, mostly
from Consolidated Court Cost funds.
Criminal court fees aren’t necessarily
fair. Defendants convicted of sex crimes pay
a $250 “DNA testing fee” plus an additional
“DNA collection fee” regardless of whether
DNA was collected or tested in their cases.
Some of the fees for DNA testing actually
end up in a state highway fund.
“Breath alcohol testing fees” in DUI
cases don’t necessarily go to pay for breath
alcohol testing any more than DNA fees
necessarily pay for DNA testing. Texas
judicial administrators estimate that of
every three dollars collected in fees, one
will be spent for something unrelated to
the court system.
For example, court fees have paid for
rehabilitative services for people with brain
injuries and an obesity study of minority
children in the Houston area. They also
fund the salaries of state game wardens. Two
million dollars in court fees went to pay a
private company to install Internet cameras
along the Mexican border so people could
view them online and report illegal border
crossings.
Court-imposed fees are also raided to
balance the budget. In 2011, Texas legislators took $20 million in fees to pay for state
employee pensions, and moved $135 million from the Fugitive Apprehension Fee
account, intended to help apprehend parolees who abscond, to the state’s general fund
where it can be used for any purpose.
Another questionable method of using
fees to balance the budget on paper is to let
them remain uncollected, so they appear as
a large amount of “accounts receivable.”That
may be why almost $5 billion in uncollected

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28

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 55 of 90

fees is included in designated accounts that
can be used to appear to “balance” budgets
over and over again.
“The budget is far too much based on
diversion and deception,” according to state
Senator Kirk Watson. “When people are
told their money is going to be spent for
something specific, a promise is made: If
we collect this tax from you, we will spend
it for this practice.”
“If we’re not going to use a fee for a
particular purpose, we shouldn’t collect it,”
added Jim Allison of the County Judges &
Commissioners Association of Texas.
In fact, collecting fees that are not
used for their intended purpose and are in
effect general taxes may be unconstitutional.
Further, the fees impose an onerous and
often unjustified burden on people who are
already among society’s poorest – criminal
defendants.
“We’re trying to squeeze more money
from people who have a hard time getting
jobs because they have a criminal record, or
have mental illness problems or substance
abuse problems,” stated Ana Yáñez-Correa,
executive director of the Texas Criminal
Justice Policy Coalition. “These fees are a

tax on the poor,” she concluded.
Poor defendants who can’t pay the
fees up front face the additional burden
of fees on fees. There is a $25 fee to set up
a schedule by which to pay fees. It costs
another $12 for a “restitution installment
fee” to pay off court-ordered restitution over
time, and a $2 “transaction fee” each time a
payment is made.
Although lawmakers are aware of the
absurdity of the criminal court fee system,
they don’t want to butcher their cash cow.
The Consolidated Court Cost fees alone
bring in almost $200 million annually. In
2009 and 2011, the Texas Judicial Council
– the policy-making body for the state’s
courts – unsuccessfully urged the legislature
to simplify the costs and fees.
There is, however, one positive precedent
from a different type of fee. When the
legislature attempted in 2011 to empty the
System Benefit Fund account, which is funded by fees on telephone bills and intended
to help the elderly and poor pay their utility
costs during the summer, state Rep. Sylvester Turner raised the issue publicly, causing
lawmakers to back down. Unfortunately,
people who have been convicted of crimes

elicit much less sympathy, so the myriad of
criminal court fees and their misuses will
most likely continue unabated.
“Lawmakers are like anybody else –
they do what they can,” noted former Texas
chief deputy comptroller Billy Hamilton.
“And nobody’s ever going to question it if
they raise fees on criminals.”
Sources: Austin American-Statesman;
“Compensation to Victims of Crime Fund,”
Legislative Budget Board Staff (Issue Brief,
February 2013)

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Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 56 of 90

“I

Oregon Jail Guard Quits, Divorces Wife for Former Prisoner

crushed a dude’s eye socket from
repeatedly punching him in it, then
I charged him with menacing and harassment,” bragged Multnomah County,
Oregon jail guard David B. Thompson in
one of more than 1,700 messages he posted
on an Internet gaming site over an eightmonth period while at work in 2007.
“Seeing someone get Tasered is second
only to pulling the trigger,” Thompson
wrote in another post. “That is money – puts
a smile on your face.”
As previously reported in PLN,
Thompson, who had been employed as a
veteran guard at the Multnomah County
Detention Center (MCDC), was merely
suspended without pay for 11 days rather
than terminated or prosecuted for misuse
of jail computers or using excessive force
against prisoners. [See: PLN, March 2009,
p.25].
The suspension did little to get Thompson’s attention, apparently. He faced
complaints for injuring a male prisoner in
March 2009, for an undocumented use of
force on a female prisoner in September
2010 and for an inappropriate conversation
with another female prisoner in November
2011.

While assaulting prisoners is seemingly
okay, falling in love with them evidently
crosses the line in the eyes of Thompson’s
MCDC co-workers. When he confided in
two other guards that he intended to divorce his wife to pursue a relationship with
an exotic dancer shortly after her release
from jail, they ratted him out.
Thompson also sent an email to
a captain, confirming that he was in a
relationship with a former prisoner but
claiming he did not know if she was still
on parole – a fact that his wife’s divorce attorney later exposed. A formal investigation
began in February 2012, according to Chief
Deputy Mike Shults.
The former prisoner at the center of
the scandal, Melissa M. Crawn, 31, was
in custody at the Inverness Jail from August to December 2011 for violating her
parole on a 2008 identity theft conviction.
It was her fifth jail stay that year for parole violations and an intoxicated driving
conviction.
On March 20, 2012, investigators
confirmed that Crawn and Thompson
were living together. The following day,
Thompson was placed on administrative
leave when investigators pulled him over

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and found Crawn in his vehicle.
In separate interviews, Thompson and
Crawn both admitted that they began a
personal relationship while she was incarcerated. Crawn told investigators that she
thought Thompson was attractive, a good
listener and treated her better than other
jailers. He even helped her file a harassment
complaint against another male guard.
Just a week after her December 2011
release from jail, Crawn called Thompson
at work. They continued their relationship
by phone until Thompson visited her in
January 2012. Thompson later left his wife
and child for Crawn, who was still legally
married but separated from the father of
her children.
“I wonder if it’s because he was in this
relationship with her for so long and it was
boring and I’m a little bit crazier,” Crawn
surmised in response to investigators’ questions about why Thompson had left his
wife and child for her. After all, she is “that
foul-mouthed, tatted up country girl your
momma warned you about,” according to
her Facebook page.
Crawn told investigators that her
mother was a prison guard at the Eastern
Oregon Correctional Institution when she
met and eventually married Crawn’s father,
who was a prisoner at the facility.
The MCDC internal investigation
found no evidence that Thompson and
Crawn were intimate while she was in custody, said Multnomah County Sheriff ’s Lt.
Mark Matsushima. Their relationship did,
however, violate agency policy because it
became physical after her release, according
to Chief Deputy Shults.
Thompson finally resigned. “We had

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30

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 57 of 90

to make sure we had all the facts before
we took any definitive action,” said Shults.
“But there’s no mistaking it, this is a case
of extremely bad judgment that happened
here.”
The Multnomah County District Attorney’s Office was investigating possible
computer crimes related to Thompson’s
use of the state’s Law Enforcement Data
System to access information about Crawn
for personal reasons after her release from
jail.
Meanwhile, Crawn was sentenced to
serve 15 days in the Clackamas County
Jail for driving while intoxicated and
with a suspended license, after she
plowed into a fire hydrant in July 2011,
just days after a stint in jail on a DUI
conviction.
Thompson attended Crawn’s sentencing hearing and the two held hands and
kissed in court. Apparently the now-former
guard and former prisoner were meant for
each other.
Sources: The Oregonian, www.kptv.com,
Portland Tribune

South Dakota Parole Board Improperly
Enhanced Prisoner’s Parole Date

T

he South Dakota Supreme Court
has held that the state Board of Pardons
and Paroles (Board) exceeded its authority
when it calculated a prisoner’s initial parole
release date by treating Class 4 felonies as
Class 2 felonies.
Lloyd Rowley was convicted of two
Class 4 felonies on October 12, 2007. His
sentence was enhanced two levels – to the
equivalent of Class 2 felonies – because he
was a habitual offender, and he received 21
years in prison for both convictions.
Pursuant to SDCL 24-15A-32, defendants convicted of Class 4 felonies must
serve 40 percent of their sentences before
parole eligibility while those convicted of
Class 2 felonies have to serve 50 percent of
their sentences.
Since his sentence had been enhanced,
the Department of Corrections (DOC)
calculated Rowley’s initial parole date
using the Class 2 percentage rather than
the Class 4 percentage. The Board subsequently affirmed the DOC’s initial parole

date calculation; Rowley filed an appeal
in circuit court, which upheld the Board’s
decision.
The South Dakota Supreme Court
reversed, finding that the plain language
of the habitual offender statute, SDCL
22-7-8.1, “indicates that the sentence is
enhanced, not the principal felony.”
The Court concluded: “By its plain
language, SDCL 22-7-8.1 does not substantively change the principal felony nor
does the reference to SDCL 24-15A-32
in the last sentence of SDCL 22-7-8.1
demonstrate legislative intent to enhance
the felony class when determining an inmate’s parole eligibility date pursuant to
SDCL 24-15A-32.” Therefore, “the Board
acted without authority in determining that
Rowley was a Class 2 felon when calculating
his initial parole date.”
Justice Glen Severson issued a dissenting opinion. See: Rowley v. South Dakota
Board of Pardons & Paroles, 2013 SD 6, 826
N.W.2d 360 (S.D. 2013).

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Prison Legal News

31

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 58 of 90

M

California Female Prisoners Sterilized

ore than 130 female prisoners
at two California facilities were
sterilized over a four-year period without
required state approval, and some of the
women have claimed they were pressured,
harassed and even tricked into signing
forms agreeing to the sterilizations. The
procedure, known as tubal ligation, involves
severing a woman’s fallopian tubes to prevent eggs from reaching the uterus; the
operation requires general anesthesia and
is considered permanent.
The surgeries were performed from
2006 to 2010 at outside medical facilities
by doctors under contract with the California Department of Corrections and
Rehabilitation (CDCR). Joyce Hayhoe, a
spokeswoman for California Correctional
Health Care Services – the federal courtappointed receiver over CDCR medical
care – said the procedures violated state
regulations that restrict tubal ligations not
deemed medically necessary. They did not,
however, violate state law.
According to public records, doctors were paid $147,460 to perform the
sterilizations on female prisoners from
the California Institution for Women and
Valley State Prison in Chowchilla. The
Center for Investigative Reporting (CIR),
which first reported the story on July 7,
2013, initially identified 148 prisoners who
were sterilized from 2006 to 2010, but that
number was later revised downward to 132
after a further review indicated some of the
women had been counted twice. “Perhaps
100 more” prisoners were reportedly sterilized between 1997 and 2006.
Although they signed consent forms,
several of the women complained they were
pressured into agreeing to the procedures
by medical staff and doctors, especially the
OB-GYN at Valley State Prison, Dr. James
Heinrich.
“As soon as he found out that I had five
kids, he suggested that I look into getting
it done,” said Christina Cordero, 34, who
was incarcerated at Valley State. “The closer
I got to my due date, the more he talked
about it. He made me feel like a bad mother
if I didn’t do it,” she stated. “Today, I wish I
would have never had it done.”
Former prisoner Kimberly Jeffrey,
who gave birth to a son while at Valley
State, said she “went into a straight panic”
when confronted with sterilization while
March 2014

she was sedated and on an operating table
for a caesarean section. She said her doctor
tried to use the operation to perform a tubal
ligation even though she had twice refused
the procedure during earlier visits.
“As I was laying on the operating table,
moments before I went into surgery, [the
doctor] had made a statement that, ‘Okay,
we’re going to do this tubal ligation, right?’
And I’m like, ‘tubal ligation? What are you
talking about? I don’t want any procedure.
I just want to have my baby.’”
“Our physicians were not following
the proper procedures,” Hayhoe admitted.
“The first priority we had was to stop it
from taking place, which we did in 2010.”
Heinrich and other doctors involved in the
sterilizations “are no longer employed” by
the CDCR, she added.
Extensive media coverage prompted
state lawmakers to order investigations
by the Medical Board of California and
California State Auditor.
In a letter addressed to the federal
receiver, the 31-member California Legislative Women’s Caucus wrote: “Pressuring
a vulnerable population – including at
least one documented instance of a patient
under sedation – to undergo these extreme
procedures erodes the ban on eugenics.”The
letter continued, “In our view, such practice
violates constitutional protections against
cruel and unusual punishment; protections
that you were appointed to enforce.”
“We’ve been assured that this practice
hasn’t occurred since [2010], but the question of course is why was this occurring?”
asked state Senator Hannah-Beth Jackson.
“We want to make absolutely sure – whether we have to do legislation or what – this
procedure never becomes the practice it
had in the past.”
In a July 10, 2013 letter to the Medical
Board of California, state Senator Ted Lieu
singled out Dr. Heinrich for criticism; Heinrich had told CIR that the $147,460 paid
to doctors who performed the sterilizations
was not a large amount compared to what
the state would save in welfare costs.
“Particularly troubling was a statement
by Dr. James Heinrich, ... who made a reference that tubal ligations on inmates save in
welfare paying for these unwanted children
– as they procreated more,” wrote Senator
Lieu. “Whether a surgical procedure would
have any hypothetical effect on welfare rolls

32

should never, ever play a part in a doctor’s
decision.”
“We also want to find out, who are the
women who have been sterilized while in
prison? Let’s break them down by race, by
economic situation, by age, by number of
children they have,” added Senator Jackson.
“One could argue, almost by definition, that
being incarcerated takes away your ability
to voluntarily consent.”
Former Valley State prisoner Crystal
Nguyen, 28, who worked in the prison’s
infirmary in 1997, said she frequently heard
medical staff asking female prisoners to
agree to sterilization.
According to CIR, Nguyen told investigators, “I was like, ‘Oh my God, that’s not
right.’ Do they think they’re animals, and
they don’t want them to breed anymore?”
Dr. Heinrich retired in 2011 but was
rehired and continued working at Valley
State Prison until December 2012. He has
been linked to arranging 378 other sterilizations between 2006 and 2012, including
hysterectomies, the removal of ovaries and
a procedure called endometrial ablation,
which destroys the lining of the uterus.
Dr. Ricki Barnett with the federal receiver’s office said such procedures are not
banned in California prisons, but the sheer
number attributed to Heinrich caused officials to take notice. Dr. Heinrich declined
to comment on the sterilizations; according
to news reports, he had settled a number of
lawsuits related to medical care before being
hired by the CDCR.
Justice Now, a prisoner advocacy
group, reported that at least 10 women
have alleged they were sterilized improperly, including one who underwent an
operation to remove cysts on her ovaries.
Kelli Thomas, a prisoner at Valley State,
told the Los Angeles Times that she gave
the doctor permission to remove her
ovaries only if cancer was discovered. Her
medical records indicated that no cancer
was found but her ovaries were removed
anyway, leaving her sterile.
“I feel like I was tricked,” she said. “I gave
permission to do it based on a [cancer] diagnosis, and the diagnosis wasn’t there.”
Sources: Los Angeles Times, www.foxnews.
com, www.theguardian.com, www.npr.org,
New York Daily News, www.sacbee.com,
www.jnow.org
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 59 of 90

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Prison Legal News

33

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 60 of 90

Kentucky Supreme Court: Probation Cannot be
Extended for Sex Offender Treatment

T

he Supreme Court of Kentucky
has held that a probationer’s period of
probation cannot be extended to require
completion of a sex offender treatment
program.
Elmer David Miller was originally
charged with felony first-degree unlawful
transaction with a minor. He entered into
a plea agreement for a misdemeanor charge
of criminal attempt to commit first-degree
unlawful transaction with a minor, because
the victim was over the age of sixteen.
The plea agreement included two years of
probation and required Miller to “[a]ttend
any counseling recommended by probation
and parole.”
Following the recommendation of the
Division of Probation and Parole, Miller
enrolled in the state’s sex offender treatment program. Shortly before his period of
probation ended, his probation officer informed the trial court that Miller would be
unable to complete the program before the
expiration of his probation term. The court
then held a hearing and extended Miller’s
probation until he finished the three-year
sex offender treatment program.
Miller challenged the trial court’s order
and the Court of Appeals reversed, holding
that he had not agreed to the extension of
his probation and, in fact, had opposed it at
the hearing. The appellate court remanded
the case for a determination of whether
Miller’s term of probation should have
been allowed to expire or should have been
revoked for his failure to complete the
treatment program. See: Miller v. Commonwealth of Kentucky, 2010 Ky. App. Unpub.
LEXIS 1001 (Ky. Ct. App. 2010).
On discretionary review by the Kentucky Supreme Court, the state agreed
that the Court of Appeals was correct in
concluding Miller’s term of probation could
not be extended. The Court concurred,
stating the statutory two-year period for
misdemeanors is an “absolute limit, absent
some overriding statute or waiver by the
defendant,” neither of which applied in
this case.
The Supreme Court further found
that Miller had not been convicted of a sex
crime, because under state law criminal attempt is a “separate, inchoate offense.” As
such, the Division of Probation and Parole
March 2014

incorrectly believed Miller had to complete
a sex offender treatment program. That
program, the Court held, only applies to
felony sex offenses and thus was not applicable to Miller, who was convicted of a
misdemeanor.
Finally, the Court found that a term
of probation cannot be extended beyond
the limit set by statute to facilitate completion of a sex offender treatment program.
Combining that legal principle with

precedent that a trial court must hold a
hearing and revoke probation before the
period of probation ends, the trial court
was without jurisdiction to act in Miller’s
case as its order extending his probation
was entered months after his probationary
term was over.
Consequently, the case was remanded
to discharge Miller from probation. See:
Miller v. Commonwealth of Kentucky, 391
S.W.3d 801 (Ky. 2013).

Former Detainee Alleges
Unconstitutional Conditions at Illinois Jail,
Accepts $7,501 Judgment

O

n April 24, 2013, the Seventh
Circuit Court of Appeals held that
a former pretrial detainee at the Edgar
County Jail (ECJ) in Illinois stated a claim
concerning unconstitutional conditions of
confinement at the facility. The appellate
court also affirmed the dismissal of a claim
alleging deliberate indifference to the detainee’s medical needs.
Over a period of two-and-a-half
years, Richard D. Budd served three stints
at ECJ as a pretrial detainee. He initially
spent 45 days at the jail following a 2009
arrest. During that time he was confined
with eight other detainees in an area of the
facility intended for three; he had to sleep
on the floor alongside broken windows and
damaged toilets.
After another arrest two years later,
Budd was placed in a section of the ECJ
where overcrowded conditions again
forced him and other prisoners to sleep on
the floor amid water from a shower leak.
The cells had broken windows, exposed
wiring, extensive rust, sinks without running water, toilets covered in mold and
spider webs, and a broken heating system.
ECJ staff did not provide prisoners with
cleaning supplies.
Four months later, Budd was again
arrested and had to sleep on the floor in an
ECJ cellblock. The cell’s vents were blocked,
the heating and air conditioning systems
did not work, and detainees were denied
recreation. While living in these conditions, something scratched or bit Budd’s leg,

34

resulting in an infection and swelling. He
was taken to a local hospital for treatment
after contacting the Sheriff.
Budd’s civil rights complaint alleged
that conditions at ECJ fell below constitutional standards and that jailers were
deliberately indifferent to his medical needs.
The district court dismissed the suit for
failure to state a cause of action.
On appeal, the Seventh Circuit held
the complaint stated a claim as to the
conditions at ECJ. The appellate court
noted that Budd had attached two newspaper articles to his complaint in which
Edgar County Sheriff Edward Motley
was quoted describing the jail as not “livable” and violating “acceptable standards.”
The Court of Appeals said the unhygienic
conditions described in Budd’s complaint
had been held to state a claim in other cases
under the Fourteenth Amendment, as he
was a pretrial detainee. Moreover, three
doctors had told Budd that his infection
was caused by unsanitary conditions at the
jail, so the harm was not speculative. He also
alleged the conditions at ECJ had traumatized him, and the Seventh Circuit found
Budd’s “exposure to psychological harm or a
heightened risk of future injury” from being
held at the jail was itself actionable.
Further, jails must meet minimal
standards of habitability, such as adequate
bedding and protection from cold. Allegations of overcrowding, lack of recreation and
poor air circulation in combination likewise
contribute to a conditions of confinement
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 61 of 90

claim. Having found that Budd stated such
a claim, the appellate court concluded the
lawsuit named the Sheriff in his official
capacity and thus should be allowed to
proceed.
Budd’s medical claim, however, failed.
The Court of Appeals noted that he was
seen by a nurse as soon as he complained
about his leg injury. He was also promptly
taken to a hospital after contacting the
Sheriff. Therefore, the district court’s order
was vacated in part and affirmed in part, and
on remand the lower court was ordered to
rule on Budd’s motion for appointment of
counsel. See: Budd v. Motley, 711 F.3d 840
(7th Cir. 2013).
Following remand, on September 4,
2013 the district court denied the defendants’ Fed.R.Civ.P. 12(f ) motion to strike
portions of Budd’s amended complaint.
Those portions included “facts which
tend to show that the Defendants were
well aware of the deplorable conditions
at the Edgar County Jail before, during,
and after Plaintiff ’s injuries, but exhibited
deliberate indifference to the jail’s deplorable conditions.” In denying the motion,
the court found that the challenged portions of the amended complaint were
relevant to Budd’s claims against the
county. See: Budd v. Edgar County Sheriff ’s
Off ice, 2013 U.S. Dist. LEXIS 125823
(C.D. Ill. 2013).
On January 3, 2014, Budd accepted a
Fed.R.Civ.P. Rule 68 offer of judgment by
Edgar County and resolved his lawsuit for
$7,501 in damages plus taxable court costs
and attorney’s fees.

T

Seventh Circuit Upholds
FTCA Venue Transfer

he Seventh Circuit Court of Appeals has upheld the transfer of a former
federal prisoner’s negligence action from
Illinois to Kansas.
Daniel Hudson relocated to Illinois
following his release from a federal prison
in Kansas. He filed a Federal Tort Claims
Act (FTCA) suit in U.S. District Court in
Illinois, alleging that Kansas medical staff
had negligently misdiagnosed a blood clot
in his leg.
The district court granted the defendants’ motion to transfer the case to
a federal court in Kansas pursuant to 28
U.S.C. § 1404(a), because the principal
witnesses were located in Kansas and the
per-judge caseload in that state was lighter
than the caseload in Illinois.
Hudson then filed a mandamus petition with the Seventh Circuit, seeking to
return venue to Illinois. He argued that he
and five of his witnesses – including three
treating physicians – resided in Illinois.
The Court of Appeals agreed that mandamus was the proper method to challenge
the district court’s transfer order: “The grant
of the government’s motion to transfer the
case was an unappealable interlocutory
order, but an unappealable order can in
exceptional circumstances be reviewed by
a mandamus proceeding. The grant of a
motion to transfer is an appealing candidate
for such review.”
The appellate court found that “Al-

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though the question of transfer in this
case is a close one, we cannot say that the
district judge committed a clear error in
holding that the defendants had made the
required showing: More than two-thirds
of the potential witnesses (12 out of 17)
are either in Kansas, just across the border
in Missouri, elsewhere in Missouri, or in
California, which is closer to Kansas than
it is to Illinois.”
The Seventh Circuit further noted that
“in our age of advanced electronic communication ... changes of venue motivated by
concerns with travel inconvenience should
be fewer than in the past.” However, Hudson did “not argue against the transfer on
the ground that the electronic revolution
has erased the advantages that the Kansas
venue would once undoubtedly have had
under the facts of this case.” Therefore, his
mandamus petition was denied. See: In re
Hudson, 710 F.3d 716 (7th Cir. 2013).

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Prison Legal News

35

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 62 of 90

Alabama Sheriff Made Party on Counterclaim
Alleging Prisoners Subjected to Sexual Abuse

T

he Alabama Supreme Court has
held that a third party to a lawsuit may
be made a party when a counterclaim is
filed. The Court also held a sheriff named
as a defendant was not entitled to qualified immunity on a federal claim in her
individual capacity, but was entitled to immunity on a federal official capacity claim
and state law claims.
The case involved a lawsuit filed by
Scott Cotney, an administrator at the
Clay County Jail, against former jail guard
Phillip E. Green and prisoners Anthony
Haywood and Daniel Hall, alleging defamation, slander, libel, invasion of privacy,
negligence and wantonness. The claims
resulted from a report filed by Green,
Haywood and Hall with the Alabama
Department of Corrections, claiming that
Cotney had used his position to sexually
abuse or assault Haywood and Hall while
they were held at the jail.
Haywood and Hall filed a counterclaim against Cotney for violations of their
Fourth, Eighth and Fourteenth Amendment rights. They also filed counterclaims
against the Clay County Commission and
Sheriff Dorothy “Jean Dot” Alexander,
in her official and individual capacities.
They alleged Alexander “had knowledge
of [Cotney’s] unlawful acts ... and permitted the abuse to occur,” and made the
same claims against her as those against
Cotney in addition to a claim of negligent
supervision.
The counterclaims against the Commission were dismissed with Hall and
Haywood’s consent, and the circuit court
granted Alexander’s motion to dismiss
without specifying its reasons for doing so.
On appeal, the Alabama Supreme Court
addressed the grounds in Sheriff Alexander’s motion.
First, the Court held that Alexander
could be made party to a counterclaim or
cross-claim under Rules 13(h) and 20(a) of
the Alabama Rules of Civil Procedure, and
the circuit court’s dismissal on that basis was
error. Next, Haywood and Hall were convicted felons during at least part of the time
the tortious conduct at the jail occurred,
so dismissal of their Eighth Amendment
claim also was erroneous.
The Supreme Court further found
March 2014

that Hall and Haywood alleged a causal
connection between Sheriff Alexander and
the deprivation of their Fourth Amendment rights related to strip searches, under
a theory of supervisory liability; thus, she
was not entitled to have the “claims against
her dismissed on the basis that she cannot
be held vicariously liable for the alleged
violations.”
Finally, the Court addressed immunity
issues, holding that Alexander was entitled
to immunity under Article I § 14 of the
Alabama Constitution on state law claims
in her individual and official capacities.
It also held she was entitled to Eleventh

Amendment sovereign immunity as to a
federal official capacity claim.
However, Sheriff Alexander was not
entitled to qualified immunity on a federal
individual capacity claim at this stage of
the proceedings, as Hall and Haywood had
alleged sufficient facts to show her failure
to act led to a violation of their rights. They
also alleged the harm they suffered resulted
from customs or policies attributable to
Alexander.
The circuit court’s order was therefore
affirmed in part and reversed in part, and
the case remanded. See: Haywood v. Alexander, 121 So.3d 972 (Ala. 2013).

Adverse Inference Instruction
Required for New York Jail’s
Destruction of Video Evidence

T

he New York Court of Appeals
has held that when a criminal defendant acts with due diligence to demand the
preservation of evidence that is reasonably
likely to be of material importance, and
the evidence is destroyed by the state, the
defendant is entitled to an adverse inference
jury instruction.
Dayshawn P. Handy was charged with
assaulting three deputy sheriffs at the Monroe County Jail. The first two assaults took
place on November 8, 2006 and the third
incident occurred on January 8, 2007. Handy
was acquitted by a jury on counts one and
three, but convicted on count two.
The count two assault charge involved an
altercation with Deputy Brandon Saeva, who
approached Handy in his cell after Handy
returned from the shower. Saeva noticed that
the boxers and sandals Handy was wearing
were not “jail issue.” According to Saeva,
Handy refused to turn over the sandals and
swung at him. They scuffled, and other deputies helped Saeva gain control of Handy.
Deputy Timothy Schiff testified that
he assisted in subduing Handy after the
altercation with Saeva. When he reached
for Handy’s right leg to control him,
Schiff said Handy kicked back, injuring
his thumb. Handy, however, testified that
Saeva swung at him and then tackled
him; he also claimed he never kicked at

36

the deputies. Handy was convicted of the
assault charge involving Deputy Schiff,
but not Saeva.
At issue was a video camera in the cell
block that faced toward Handy’s cell, but
not “directly” toward it. Saeva viewed the
video recorded on November 8. He said that
since the camera showed “only a part of his
doorway, but not much,” the video captured
a “very small part” of the incident. It was
undisputed that the video was destroyed
prior to trial.
Handy argued it was error for the trial
court to refuse to charge the jury with an
adverse inference instruction due to the
missing video evidence with respect to the
count two assault charge. The Court of
Appeals agreed.
In response to the state’s assertion that
it was “merely speculative” that the video was
exculpatory, the Court noted that such speculation was caused by the destruction of the
video, and that requiring an adverse inference
instruction would mitigate the harm to the
defendant caused by the loss of evidence.
“We hold that when a defendant in
a criminal case, acting with due diligence,
demands evidence that is reasonably likely
to be of material importance, and that evidence has been destroyed by the State, the
defendant is entitled to an adverse inference
charge,” the Court wrote.
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 63 of 90

Moreover, the Court of Appeals said
its ruling would increase the chances that
prison and jail staff will take whatever steps
are necessary to ensure that video evidence

is not erased or destroyed when it is foreseeable an incident will lead to a criminal
prosecution.
Accordingly, Handy’s conviction was

reversed and the case remanded for a new
trial on the assault charge involving Deputy
Schiff. See: People v. Handy, 20 N.Y.3d 663,
988 N.E.2d 879 (N.Y. 2013).

Washington Jail Denied Good Time without
Due Process; Rehearing Ordered

T

he Washington Court of Appeals
held in an unpublished opinion that a
prisoner was denied good time credits without adequate due process protections.
Allen Michael Knoll was held in the
Skagit County jail between March 2011
and August 30, 2011, when he was transferred to the Washington Department of
Corrections. One day prior to his transfer,
jail officials notified Knoll that he would
not receive any good time credits because
he “had been the subject of over 40 incident
reports and had been disciplined 10 times
for both major and minor rule violations.”
Knoll requested a hearing, contending
that he had not been disciplined 10 times.
The hearing was held five hours later and
“the hearing officer upheld the denial of good
time credit,” finding that Knoll had been the

Prison Legal News

subject of “43 reports, 10 disciplinary actions,
and 2 instances of use of force” at the jail.
Knoll then filed a personal restraint
petition, arguing that inadequate advance
notice of the hearing and lack of specificity
of the disciplinary actions deprived him of
good time credits without due process.
The Court of Appeals accepted the
state’s concession that the jail’s failure to
provide Knoll with at least 24 hours to prepare for the hearing violated minimal due
process requirements. The Court further
found that “the notice provided only the
number of incident reports and disciplinary
actions. Without further identification or
description of the disciplinary incidents at
issue, the notice failed to provide sufficient
information to enable Knoll to defend
against the allegations.”

37

However, following In re PRP of
Atwood, 146 P.3d 1232 (Wash. Ct. App.
2006), the Court rejected Knoll’s argument that restoration of good time credits
was the proper remedy, as he had not lost
previously-earned good time. Rather, he
was only entitled to another hearing that
comports with the minimal due process
protections set forth in Wolff v. McDonnell,
418 U.S. 539, 94 S.Ct. 2963 (1974).
“While it is true that Knoll is not entitled to litigate the underlying facts of his
prior disciplinary incidents,” the appellate
court explained, “the existence of those
disciplinary incidents must be established
to support the denial of good time premised
on the prior incidents.” See: In re PRP of
Knoll, 2013 Wash. App. LEXIS 498 (Wash.
Ct. App. 2013) (unpublished).

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 64 of 90

California County Not Liable for Misconduct of Jail
Guard Not Acting within Scope of Employment

O

n April 3, 2013, the California
Court of Appeal held that a county
is not liable for damages arising out of the
misconduct of one of its jail guards when
such misconduct is deemed to be “purely
personal” and thus not within the scope of
the guard’s employment.
In February 2005, Paul and Felicia
Perry were injured in a car accident involving a vehicle owned by Alejandro Vital, who
was then employed as a veteran jail guard
by Fresno County. After the Perrys filed a
personal injury suit against Vital, he became
obligated to pay their medical bills resulting
from the accident because his insurance
company refused to cover those expenses.
Vital then embarked on a scheme
designed to intimidate the Perrys into dropping their lawsuit. He accessed information
about “dangerous inmates” through the jail’s
computer system, then sent them racially
inflammatory and insulting letters in Paul
Perry’s name using his return address, hoping they would provoke the prisoners to
retaliate against the Perrys.
Vital also wrote an anonymous letter
to Fresno High School officials, accusing
Perry, a coach, of once molesting a basketball player at the school.
An investigation led to Vital’s eventual
admission that he wrote the letters to the
jail prisoners and to Fresno High School,
as well as insulting letters to members of
a street gang who, in response, said they
would “do a drive-by” at the home of Paul
Perry’s 70-year-old mother.
Vital was fired by the county and criminally charged with identity theft, extortion
and attempting to dissuade a witness from
testifying. He entered a no contest plea to three
felony counts and was sentenced in November
2006 to one year in jail. In court, he explained
his actions by saying, “I just lost my mind.”
The Perrys filed suit against Fresno
County on the theory that under the doctrine of respondeat superior, an employer
is liable for the torts of its employees when
those torts are committed within the scope
of their employment.
The trial court granted the county’s
motion for summary judgment, finding that
Vital’s actions were not within the scope of
his duties as a jail guard.
The Court of Appeal affirmed, holding
March 2014

that although Vital’s position at the jail gave
him access to the information he needed
to carry out his scheme, the act of writing
and mailing fraudulent letters was “purely
personal” and not within the scope of his
employment. Thus, the county could not be

held vicariously liable for his actions. See:
Perry v. County of Fresno, 215 Cal.App.4th
94, 155 Cal.Rptr.3d 219 (Cal. App. 5th Dist.
2013), rehearing denied, review denied.
Additional source: www.star-telegram.com

Texas Courts Examine Proof of Ability to
Pay Probation Fees before Revocation
by Matt Clarke

I

n a November 14, 2012 opinion, the
Texas Court of Criminal Appeals held
prosecutors are not required to prove that
a probationer was able to pay fees and fines
when his probation was revoked due to
nonpayment. The Court of Appeals reversed
the probation revocation on remand, and the
Court of Criminal Appeals granted discretionary review of that ruling in June 2013.
Raimond Kevon Gipson, who was
serving a term of probation, failed to pay
his fees and fines. He was required to pay
a $500 fine, supervision fees, court costs, a
pre-sentence investigation (PSI) fee, a $50
Crime Stoppers fee and $1,000 in attorney
fees. [See article in this issue of PLN regarding Texas criminal court fees].
The state filed for revocation due to
the nonpayment. Gipson pleaded “true” to
failure to pay fees but contested other reasons for the revocation. At no time did the
state claim he was able to pay the fees but
willfully failed to do so; Gipson also did not
raise the issue of inability to pay. The trial
court revoked his probation and sentenced
him to eight years in prison.
On appeal, Gipson claimed that the
state’s failure-to-pay statute, art. 42.12 §
21(c), Texas Code of Criminal Procedure,
required the state to show that he was able
to pay but willfully did not. He also claimed
that Bearden v. Georgia, 461 U.S. 660 (1983)
established a constitutional requirement
that the state prove ability to pay before revoking his probation. The state maintained
that by pleading true to the allegation,
Gipson had waived any such claims.
Without addressing the state’s procedural arguments the Court of Appeals
reversed the trial court’s order, holding that
the failure-to-pay statute required the state

38

to first prove ability to pay before revoking
probation. The state petitioned the Texas
Court of Criminal Appeals for discretionary
review, which was granted.
The Court of Criminal Appeals held
that the lower appellate court must first determine whether the alleged error had been
preserved for review or waived by Gipson
when he pleaded true to failure to pay fees.
Because a plea of true normally waives any
challenge to sufficiency of evidence of a
probation revocation on appeal, this analysis
must be performed within the framework
of Marlin v. State, 851 S.W.2d 275 (Tex.
Crim. App. 1993), in which the Court of
Criminal Appeals held that “certain requirements and prohibitions are absolute
and ... certain rights must be implemented
unless expressly waived.”
Because it disagreed with the constitutional and statutory analysis of the appellate
court, the Court of Criminal Appeals provided its own analysis.
The Court held that Bearden did not
impose a duty on prosecutors to prove ability to pay; rather, it imposed a duty on the
trial court to make an inquiry into ability to
pay. The Court further held that the failureto-pay statute did not cover two of the fees
Gipson did not pay – the fees for Crime
Stoppers and PSI. Therefore, if the Court of
Appeals determines on remand that pleading
true to failure to pay did not waive that issue
for appellate review, it must decide whether
Texas common law or the U.S. Constitution
requires the prosecution to prove inability to
pay prior to a probation revocation.
The judgment of the Court of Appeals was
reversed and the case remanded to that court for
further proceedings. See: Gipson v. State, 383
S.W.3d 152 (Tex. Crim. App. 2012).
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 65 of 90

Following remand, on March 13, 2013
the Court of Appeals again reversed the trial
court’s revocation of Gipson’s probation.
The appellate court found that “Generally,
a defendant cannot challenge a revocation
finding to which he pleaded ‘true’”; however,
“[i]n this case, the record is devoid of evidence showing that Gipson’s failure to pay
attorney’s fees, community supervision fees,

or court costs, including PSI and Crime
Stoppers fees, was willful.”
Therefore, the Court of Appeals held
the trial court had abused its discretion by
revoking Gipson’s probation, which affected
his substantial rights by subjecting him “to
a prison sentence rather than continued
community supervision.” With respect to
Gipson’s argument that the trial court vio-

lated his due process rights, the appellate
court found he had failed to preserve that
issue for review because he did not raise it
before the trial court. See: Gipson v. State,
395 S.W.3d 910 (Tex. App. 2013).
On June 26, 2013, the Texas Court of
Criminal Appeals granted the state’s petition for discretionary review, and a decision
remains pending.

Second Circuit: Videoconference at Resentencing
Violates Right to be Present

T

he Second Circuit Court of Appeals
has held that resentencing a defendant by
videoconference violated his right to be present in court, and the government failed to
satisfy its burden of establishing that the defendant knowingly and voluntarily waived his
right to be present. Under the circumstances,
however, the error was not prejudicial.
On November 1, 2000, alleged al Qaeda member Mamdouh Mahmud Salim was
confined at the Metropolitan Correctional
Center (MCC) in New York, awaiting trial
on federal terrorism charges.
Salim and his cellmate, a co-defendant
in the terrorism case, plotted “to take a
guard’s keys so that Salim could attack his
lawyers in an attorney-inmate meeting room.
Their goal was to force Salim’s attorneys to
withdraw their representation so that District Judge Sand, who was presiding over the
terrorism case and previously had denied
Salim’s repeated requests for new lawyers,
would have to grant substitute counsel.”
As Salim was escorted to his cell from a
meeting with his lawyers, under the guise of
retrieving additional legal materials, Salim
and his cellmate assaulted MCC guard
Louis Pepe, stabbing him in the left eye
with a sharpened plastic comb. Before he

could attack his attorneys, however, Salim
was overpowered by other guards.
“Pepe was severely injured. He lost his
left eye, incurred reduced vision in his right
eye, and suffered brain damage that left his
right side partially paralyzed and interfered
with other normal functions, including his
ability to speak and write.”
On April 3, 2002, Salim pleaded guilty
to conspiracy to murder and attempted
murder of a federal official for the attack
on Pepe. He was initially sentenced to 384
months in prison, which was later reversed
on appeal. See: United States v. Salim, 549
F.3d 67 (2d Cir. 2008), cert. denied.
The district court imposed the same
sentence on remand and Salim again
appealed. This time, the Second Circuit
agreed with the government that a terrorism enhancement was appropriate, and thus
vacated the sentence and remanded.
On August 31, 2010, the district court
held a second resentencing hearing which
Salim attended by videoconference. The court
imposed a life sentence as a terrorism enhancement, and Salim appealed a third time.
Among other issues, he argued that he had not
voluntarily waived his right to be present at the
hearing, because the waiver “was premised on

his fear of abuse by correctional officers” who,
he alleged, had previously beaten and spit on
him when he was moved to another prison.
The Court of Appeals recognized that
Salim had a right to be present at a sentencing hearing under “both the Constitution and
Federal Rule of Criminal Procedure 43(a)(3),”
which extended to resentencing. As a matter
of first impression in that circuit, the appellate
court held that the right to be present requires
a defendant’s physical presence and is not
satisfied by appearing via videoconference.
The Second Circuit further found the
district court had erred in determining that
the government had satisfied its burden of
proving that Salim knowingly and voluntarily waived his right to be present. The
appellate court affirmed the district court’s
sentencing order, however, because “Salim
has not explained why his absence might
have altered his resentence, nor has he demonstrated that any error in his resentencing
was so egregious as to warrant relief on plain
error review.” See: United States v. Salim,
690 F.3d 115 (2d Cir. 2012), cert. denied.
On January 9, 2014, Salim filed a motion to vacate under 28 U.S.C. 2255, which
remains pending.

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Prison Legal News

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March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 66 of 90

Eighth Circuit: Denial of Nominal Damages
Jury Instruction was Improper

T

he Eighth Circuit Court of Appeals held on September 4, 2012 that a
district court erred when it refused to give
a nominal damages jury instruction in a
lawsuit brought by a Missouri state prisoner.
Another trial was held in June 2013 following remand, and the jury again ruled in favor
of the defendant prison officials.
Missouri Department of Corrections
(DOC) policy allows a prisoner to declare
his cellmate an “enemy” and be removed
from the cell if he fears for his safety. The
prisoner is then placed on a restraint bench
until a compatible cellmate is found, a
single-person cell becomes available or the
prisoner elects to return to the original cell.
While on the restraint bench, bathroom
breaks and small amounts of water are allowed but food is not provided per DOC
policy.
Arthur E. Taylor, Jr., was confined at
the maximum-security Jefferson County
Correctional Center when he declared his
cellmate an enemy and was removed from
the cell on September 9, 2005.
Taylor was shackled to a metal restraint bench, where he remained until he
was placed in a cell with a new cellmate
on September 11. He was unable to sleep
during the two days he was shackled to
the restraint bench in an upright position.
Therefore, once in the new cell, he slept
through breakfast and lunch.
Later that day, Taylor declared his
new cellmate an enemy and was returned
to the bench. This time he remained on
the restraint bench until the evening of
September 14, 2005.
Again, pursuant to policy, Taylor was
not fed while on the bench. He first ate
again on the morning of September 15,
2005 after missing about twelve meals.
Taylor filed suit in federal court, alleging that the failure of prison officials
to provide him with food violated the
Eighth Amendment. The case proceeded
to trial and the district court gave Taylor’s
requested excessive force jury instruction
but refused to give his nominal damages
instruction. The jury returned a verdict for
the defendants, finding zero damages for
Taylor.
The Eighth Circuit reversed, holding
that “the district court abused its discretion
March 2014

in not submitting the requested nominal
damages instruction to the jury.”
The appellate court rejected the defendants’ argument that the error was
harmless, finding that “if the jury analyzed
this element first and found no damages,
it could not find excessive force.” As such,
“the lack of a nominal damages instruction
had a probable effect on this verdict.” Justice
Kermit E. Bye issued a separate opinion
that concurred in part and dissented in
part. See: Taylor v. Dormire, 690 F.3d 898
(8th Cir. 2012).
Following remand, on May 14, 2013

the district court denied the defendants’
motion for summary judgment in part and
granted it in part, and denied Taylor’s motion to amend his complaint to add a new
defendant. See: Taylor v. Dormire, 2013 U.S.
Dist. LEXIS 68062 (W.D. Mo. 2013).
The case went to another jury trial in
June 2013, and the jury found in favor of the
defendants on all counts. The district court
denied Taylor’s motion for a new trial and
he filed an appeal, which remains pending.
The Missouri DOC has since revised its
policy related to feeding prisoners while
they are on a restraint bench.

Taylor County, Texas
Rarely Disciplines Jailers

C

ompared to scandals at the Harris
County Jail in Houston – where guards
have assaulted and had sex with prisoners,
mistakenly released prisoners and abandoned their posts to play dominos [see:
PLN, Sept. 2013, p.23] – problems at the
Taylor County Jail in Abilene, Texas seem
fairly tame.
According to news reports, 28 of 135
employees at the Taylor County jail were
disciplined in the three years prior to 2012,
but the disciplinary action was minor and
the misconduct much less serious than
at Harris County. None of the discipline
resulted in termination.
Former Taylor County Sheriff Les
Bruce had a three-tier approach to employee
discipline. First, an employee was given a
letter of counseling. If that didn’t correct the
problem, a letter of reprimand was issued.
The last resort, termination, was reserved
for when the letters did not have the desired
effect of correcting errant behavior.
During the three-year period, two
jail guards were reprimanded for “major
booking errors.” One received a letter of
counseling after he was caught surfing the
Internet on the job after having received
repeated prior warnings.
Other deputies were reprimanded
for sleeping while on the job or in connection with the escape of two prisoners.
One received a letter of counseling after
five incidents of verbally abusing prisoners
within nine months. Another employee was

40

reprimanded for making “several medication errors on numerous times.”
One jailer didn’t check on a noise coming from a cell block which turned out to
be a prisoner banging his head against the
walls and doors, injuring himself enough
to bleed from a head wound. The same
guard was later disciplined again for yelling at prisoners in a cell block who were
threatening to riot if the air conditioner
wasn’t repaired, which allegedly caused the
prisoners to become more aggressive.
Another jailer was reprimanded for
releasing a prisoner a month early; the
prisoner later turned himself in to complete
his remaining sentence.
Repeated tardiness was also a problem
among employees at the jail. Then-Sheriff
Bruce noted that was a serious issue due to
the need to maintain a mandatory guardto-prisoner ratio at the facility.
“It’s very important to have those jailers there to receive briefing notes during
shift changes,” he said. “They need to know
what has been going on in that facility since
they left.”
So long as misconduct by Taylor County
jail employees mainly involves yelling at prisoners, surfing the Internet and being late for work,
though, such transgressions pale in comparison
to problems at other jails where guards have
sexually abused prisoners or beaten and tasered
them – sometimes to death.
Source: www.correctionsone.com
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 67 of 90

D.C. Circuit Holds PLRA’s Exhaustion Requirement
Inapplicable to Former Prisoner

T

he Circuit Court of Appeals for
the District of Columbia has held
that the administrative exhaustion
requirement of the Prison Litigation
Reform Act (PLRA) does not apply to
suits filed by persons who are no longer
incarcerated.
The lawsuit at issue, filed by former
prisoner John B. Lesesne, alleged permanent, life-threatening injuries suffered while
in the custody of the District of Columbia
(D.C.) Department of Corrections (DOC).
Lesesne was involved in an altercation on
March 30, 2008 in which he was shot in
the lower abdomen, causing neurological
damage to his leg.
He was arrested and transported to a
hospital where he remained in the custody
of the D.C. Metropolitan Police for the next
48 hours. He was then taken into DOC
custody but remained cuffed by his wrist
and ankle to the hospital bed.
As a result of the injury to his leg, doctors prescribed physical and occupational

therapies and directed Lesesne to walk in
the hospital hallway. However, even after
the doctors faxed their recommendations to
the DOC, guards did not let Lesesne walk
in the hallway and restrained movement of
his injured leg.
When he was discharged from the
hospital on April 8, 2008, guards forced
Lesesne to walk to the transport vehicle
in full restraints; he fell when guards
attempted to lift him into the vehicle.
Shortly after his arrival at the D.C. Jail
infirmary, Lesesne was re-hospitalized
due to signs of distress resulting from the
transport.
He was diagnosed with having suffered a pulmonary embolism and placed
in intensive care; once again, his leg was
restrained to the bed. Lusesne was released
from the hospital on April 21. Over the next
four days, jail personnel failed to provide
his prescribed medications, change his
bandages or clean his gunshot wound and
surgical incision. The failure to supply this

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medical care resulted in the wound becoming infected.
Lesesne was released from jail on April
25, 2008. Two years later he filed a pro se
civil rights complaint, arguing that the
DOC’s failure to treat his medical needs
resulted in permanent, life-threatening
injuries which require expensive therapeutic
care, prescription drugs and constant pain
management, as well as pain, suffering and
emotional distress.
The district court granted the District
of Columbia’s motion for summary judgment on grounds that Lesesne had failed
to exhaust administrative remedies at the
D.C. Jail as required by the PLRA. The
D.C. Court of Appeals joined its sister
circuits in holding that the PLRA’s exhaustion requirement did not apply to Lesesne
because he was not confined when he filed
his lawsuit, even though he had failed to
make that argument before the district
court. See: Lesesne v. Doe, 712 F.3d 584
(D.C. Cir. 2013).

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March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 68 of 90

Michigan Parole and Probation Supervision
Scrutinized; Three Officials Fired

T

he failure to properly supervise
parolees and probationers accused
of committing high-profile murders has
resulted in the firing of three Michigan
Department of Corrections (MDOC)
employees. The MDOC supervises around
20,000 parolees and 50,000 probationers.
“Our parole/probation staff performs
critical functions that are vital to ensuring
public safety,” MDOC director Daniel H.
Heyns said in a written statement to the
Detroit Free Press. “The overwhelming majority of these employees do excellent work
and help to make our communities safer.”
The burden on those employees has
increased in recent years as the MDOC
overhauled its parole system to release more
prisoners as a result of budget reductions.
The changes resulted in a decreased prison
population, saving the MDOC millions
of dollars and allowing it to close several
facilities. [See: PLN, June 2010, p.13; April
2009, p.1].
However, three incidents led to scrutiny as to how the MDOC is supervising
parolees and probationers. The first involved
the robbery and brutal murder of Nancy
Dailey, 80, in her Royal Oak home on November 20, 2011. She was discovered with
her hands bound and her throat slit.
Alan Wood, 49, and Tonia Watson, 40,
were charged with first-degree murder for
killing Dailey; both were on parole, and a
condition of their parole prohibited them
from associating with each other. A Free
Press investigation found that MDOC
employees had failed to violate their parole
despite knowing they were associating with
each other and were suspected of committing new crimes.
The parole agent supervising Wood
was fired and the agent supervising Watson received a 30-day suspension. UAW,
the union that represents Michigan state
employees, blamed the parole agents’ supervisors. “It was management who cut
Alan Wood free,” said UAW representative Rick Michael, a veteran probation
officer. “No agent can send a probationer
or parolee back to prison without management approval. This agent went to her
supervisors, and they’re the ones who said
‘Set him free.’”
Wood went to trial in January 2013.
March 2014

He was found guilty of first-degree murder,
felony murder, larceny in a building and
illegal use of a financial transaction device.
He received a mandatory life sentence the
following month, telling the judge to “just
get on with the sentencing and stop your
preaching.” Tonia Watson pleaded guilty,
testified against Wood and was sentenced
to 23 to 80 years in prison.
The second incident involving supervision errors by MDOC officials was
the January 31, 2012 murder of 12-yearold Kadejah Davis-Talton, who was shot
through the door of her home as the result
of an argument over a cell phone. Joshua
Brown, 19, was charged with her murder.
In September 2010, Brown had been
placed on probation for drug and home
invasion convictions. The judge ordered
him to wear an electronic monitor but his
probation agent never activated the device.
Four months before Davis-Talton’s murder,
Brown was a suspect in an armed home
invasion; his probation agent was aware of
the incident and wrote a report to the judge,
but it was unclear whether the report was
ever sent or received.
Brown’s probation agent and the
agent’s supervisor were later fired. Michael
said the agent was working to get Brown
a landline phone when Davis-Talton was
shot. “First of all, they have to have a telephone; we can’t hook them up without one,
and he was working on it,” Michael stated.
“He is a very good agent, and his supervisor
was aware of what was going on.”
On January 7, 2014, almost two years
after fatally shooting Davis-Talton and
following an initial mistrial, Brown was
sentenced to 24 to 50 years for seconddegree murder, 14 to 30 years for assault
with intent to murder to be served concurrently, and two years for using a firearm
during a felony.
The third incident involving MDOC
officials occurred after Tucker Cipriano,
19, was placed on probation following his
February 2012 release from jail on drug
charges. Cipriano and a friend attacked
his adoptive family with a baseball bat on
April 16, 2012, bludgeoning his father to
death and leaving his mother and brother
in critical condition.
An MDOC probation agent was

42

placed on paid leave for losing track of
Cipriano after he failed to show up for an
April 5 meeting with the agent. A Free Press
source said MDOC officials had trouble
keeping up with Cipriano, who claimed he
was homeless and staying in motels.
Cipriano pleaded no contest to felony
murder and was sentenced in July 2013 to
life without parole for killing his adoptive
father. His co-defendant, Mitchell Young,
also received a sentence of life without
parole.
Michael said the blame for inadequate
monitoring of parolees and probationers
falls upon the MDOC and its management. “I believe that the union will be able
to prove that there is a double standard
in MDOC and that management is not
capable of policing themselves,” he stated.
“There is a double standard – one for the
agent and one for the manager – and
when something goes wrong due to some
shortcoming with MDOC, the agents are
always blamed.”
The MDOC, in turn, said it was taking
action to increase supervision of parolees
and probationers.
“The governor has made it clear that
the level of violence in southeast Michigan,
Flint and Saginaw is unacceptable. The
Michigan Department of Corrections has
a role to play in reducing that violence,”
said MDOC director Heyns. “I am putting measures in place that will improve
supervision of parolees and probationers
throughout Michigan. The restructuring of
Ryan Correctional Facility to provide more
custody beds for parole violators, aggressively going after absconders, embedding
parole officers into police departments and
auditing case loads are examples of some
changes we are making that I believe will
enhance public safety.”
Sources: Detroit Free Press, www.theoaklandpress.com, Huffington Post

Hepatitis & Liver Disease:
A Guide to Treating & Living
with Hepatitis & Liver Disease
Revised ed. By Dr. Melissa Palmer
See page 61 for more information.
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 69 of 90

Prisoners’ Guerrilla Handbook to Correspondence Programs
in the United States and Canada, 3rd Edition
Jon Marc Taylor

Author Jon Marc Taylor’s brand new version is the latest in this

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43

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 70 of 90

The Federal Tort Claims Act: A Primer
by Derek Gilna

T

he Federal Tort Claims Act
(FTCA) is outlined in various sections
of Chapter 28 of the United States Code,
which describe the steps necessary to file
and maintain a tort action against the U.S.
government.
The FTCA is the exclusive remedy for
monetary damages for injuries “caused by
the negligent or wrongful act or omission
of any employee of the government while
acting within the scope of his office or employment, under circumstances where the
United States, if a private person, would be
liable to the claimant in accordance with the
law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b)(1).
This means that the FTCA is only
available to address acts or omissions by
federal employees that constitute torts
under state law. Constitutional violations are not actionable under the FTCA
unless they are also torts. For example,
deliberate indifference to serious medical
needs, which is a constitutional violation
under the Eighth Amendment, may also
constitute the torts of medical malpractice
or negligence.
The FTCA constitutes a limited waiver
of the United States’ sovereign immunity,
allowing claimants to sue the federal government; however, the FTCA does not
apply to acts by federal employees that are
outside the scope of their employment.
FTCA suits should not be confused
with § 1983 actions, commonly known
as civil rights complaints, which apply to
defendants acting under color of state –
not federal – law. FTCA claims are also
distinguishable from Bivens claims brought
under Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971), which provides a private action for monetary damages against
federal officials who commit constitutional
violations.
Failure to follow the requirements for
FTCA claims may lead to dismissal, with
prejudice, at an early stage of the proceeding – thereby preventing any recovery even
for serious personal injuries and financial
losses.
The most significant hurdles to be
cleared to prevent an early dismissal of
an FTCA action include the exhaustion
of administrative remedies and detailed
March 2014

notice requirements. The FTCA administrative process must be exhausted prior to
filing an FTCA complaint, which is subject to dismissal on jurisdictional grounds
if the claimant has failed to exhaust such
remedies. See: Plyler v. United States, 900
F.2d 41 (4 th Cir. 1990). Note that the
administrative process, described below,
is separate and distinct from the Bureau
of Prisons’ grievance procedure, and that
filing a grievance (i.e., a Form BP-9) does
not satisfy FTCA administrative exhaustion requirements.
FTCA claims involve an administrative process in which notice is presented to
a federal agency, then a separate complaint
(lawsuit) is filed in federal court if the
agency fails to resolve the claim administratively.
According to the FTCA, notices must
be written and directed to the appropriate
federal agency that the claimant asserts
is responsible for wrongdoing. U.S.C. §
2675(a). The notice must provide the agency
with sufficient information so it can carry
out an investigation to ascertain its potential
liability. The usual form of notice is Standard Form 95 (SF-95), but claimants are
not required to use that form.
The written notice does not have to
assert all elements of the cause of action
(i.e., all of the legal requirements for stating a claim), but a claimant’s suit may be
brought only on those facts and theories
of liability raised in the administrative
notice. See: Williams v. United States, 932
F.Supp. 357 (D.D.C. 1996). In other words,
a claimant should err on the side of caution by including all facts and supporting
information in the notice, to avoid possible
dismissal of the complaint if the agency fails
to settle the matter administratively. See:
Bembenista v. United States, 866 F.2d 493
(D.C. Cir. 1989).
Claimants also must request a sum
certain, and their potential for recovery
will be limited to no more than the amount
requested. 28 C.F.R. § 14.2(a). “Failure to
have specified a sum certain at the administrative stage is a defect that deprives the
court of subject matter jurisdiction over
the action.” See: Ahmed v. United States,
30 F.2d 514 (4th Cir. 1994); Kokotis v. U.S.
Postal Service, 223 F.3d 275 (4th Cir. 2000);

44

28 U.S.C. § 2675(b). A sum certain means
a specified dollar amount.
Claimants under the F TCA must
sign their notices or have them signed by
their attorneys or legal representatives.
If someone signs in their representative
capacity, “evidence of the representative’s
authority to sign ... must be shown.” 28
C.F.R. § 14.3(e); Kanar v. United States,
118 F.3d 527 (11th Cir. 1997). For example,
if the representative has a prisoner’s power
of attorney, a copy of the notarized power
of attorney should be submitted with the
notice. Failure to do so may result in dismissal of the claim, though some circuits
are split on that issue.
The claimant must present written
notice of the claim to the correct federal
agency, such as on SF-95, and obtain proof
that it was presented. 28 U.S.C. § 2675(a).
Written notice is effective on the date it
is received by the agency, not the date of
mailing. 28 C.F.R. § 14.2(a). The claimant
should attempt to ascertain the correct
agency whose employees’ acts or omissions
were the proximate cause of his injuries, and
submit the notice to that agency. However,
if the claimant inadvertently notices the
wrong agency, the agency that received
the notice “must transfer the claim forthwith to the appropriate agency and notify
the claimant of the transfer.” 28 C.F.R. §
14.2(b)(1).
Further, the claimant bears the burden
of presenting written notice of his claim
prior to the expiration of the statute of
limitations. FTCA claims will be barred
if they are not presented in writing to the
correct federal agency within two years of
the accrual of the claimant’s cause of action.
28 U.S.C. § 2401(b).
After the presentation of notice of the
claim, the claimant cannot file an FTCA
complaint in federal court until the agency
receiving the notice has had the claim for six
months, and the federal court lacks subject
matter jurisdiction until the six-month
period has expired or the agency has issued
a final denial of the claim. See: McNeil v.
United States, 113 S.Ct. 1980 (1993). If the
agency denies the claim, the claimant must
file a complaint in federal court within six
months of the date of the denial.
With respect to venue for filing FTCA
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 71 of 90

complaints, the proper venue is the district
where the claimant resides or where the act
or omission occurred. 28 U.S.C. § 1402(b).
The substantive law of the state in which
the act or omission occurred is the controlling authority for FTCA claims, and
the government’s liability is “in the same
manner and to the same extent as a private
individual under like circumstances....” 28
U.S.C. § 1346(b), 28 U.S.C. § 2674. In
some cases, state law presuit notice or expert
report requirements may apply, such as in
medical malpractice or negligence cases.
If state law does not permit recovery
for certain types of tort claims, an FTCA
complaint filed in that jurisdiction likewise will be barred from recovery. Further,
South Carolina attorney Joe Griffith has
noted that district courts are increasingly
enforcing state-imposed damages caps in
FTCA cases.
When filing an F TCA complaint,
the complaint and summons are served on
both the Attorney General in Washington,
D.C. and the U.S. Attorney’s Office for the
district in which the lawsuit is filed.
FTCA trials are held before a district
court judge, not a jury; relief may only take
the form of monetary damages, and equitable relief is not available. Damages may
not exceed the sum certain specified in the
administrative claim unless “the increased
amount is based upon newly discovered
evidence not reasonably discoverable at the
time of presenting the claim to the federal
agency.” See: 28 U.S.C. § 2675(b); Cole
v. United States, 861 F.2d 1261 (11th Cir.
1988). Punitive damages and prejudgment
interest are not allowable under the FTCA.
28 U.S.C. § 2674.
The United States – not federal departments, agencies or individual employees – is
the only proper defendant in an FTCA
claim. 28 U.S.C. § 2679. The alleged tortfeasor must be a federal employee acting
within the course and scope of his or her
federal employment, and must not be an independent contractor. 28 U.S.C. § 1346(b)
(1), 2675, 2672, 2679 and 2671. Thus, for
example, federal prisoners held at a facility
operated by a private contractor, such as
CCA or GEO Group, cannot file an FTCA
claim against the company or its employees,
as they are not federal employees.
The Supreme Court has held that a suit
against the United States under the FTCA
is the exclusive remedy for claims arising
from medical treatment and related funcPrison Legal News

tions provided by Public Health Service
(PHS) employees acting within the scope
of their employment. See: Hui v. Castaneda,
559 U.S. 799 (2010) [PLN, Oct. 2010, p.44].
PHS employees provide medical care in
some Bureau of Prisons and immigration
detention facilities.
Further, compensation from the Federal Prison Industries Fund (18 U.S.C. §
4126) is the exclusive source of compensation available for an injury sustained by a
prisoner in connection with work activities
at a federal prison. See: Vander v. U.S. Dept.
of Justice, 268 F.3d 661 (9th Cir. 2001).
FTCA claims concerning government
policy decisions are barred by the discretionary function exception – i.e., acts or
omissions of federal employees related to
a “discretionary function or duty” – as are
certain intentional torts. In general, only
claims of negligence are covered by the
FTCA rather than intentional misconduct.
The discretionary function exception applies even when decisions are intentionally
or negligently made, or the discretion is
abused. See: United States v. Gaubert, 499
U.S. 315 (1911).
However, the intentional acts or
omissions of an “investigative or law
enforcement officer,” including but not
limited to assault, battery, false arrest,
false imprisonment, abuse of process and
malicious prosecution, are covered by
the FTCA and may proceed. 28 U.S.C.
§ 2680(h); Millbrook v. United States,
133 S.Ct. 1441 (2013) (involving FTCA
claims against Bureau of Prisons employees) [PLN, June 2013, p.28].
Lastly, attorneys are prohibited from
receiving fees in FTCA cases that exceed
20% of an administrative settlement or
25% of a judgment or compromise settlement after a complaint is filed. 28 U.S.C.
§ 2678.

Editor’s Note: This article provides a brief
introduction to the FTCA and FTCA
claims. As the law is constantly changing,
claimants who plan to file FTCA claims
or complaints should research the most
recent case law related to such actions.
Special thanks to attorney John Boston for
reviewing this article.
Sources: “The Basics of the Federal Tort Claims
Act,” by Joseph P. Griffith, Esq. (www.joegriffith.com); www.usphs.gov; www.justice.org;
www.nolo.com; www.washingtonpost.com

45

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Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 72 of 90

O

Psst! Hey Man, Need Some Execution Drugs?

fficials in Delaware and 31 other
states that use lethal injection to execute prisoners are scrambling to find new
drugs to carry out death sentences, and in
some cases are procuring them through secret exchanges and confidential deals – and
from questionable sources.
Emails obtained by the Associated
Press (AP) revealed how the head of Delaware’s Department of Correction enlisted
a drugstore owner-turned-bureaucrat to
acquire pentobarbital, the sedative component of the state’s new three-drug execution
protocol since production of sodium thiopental ceased in the U.S. in early 2011. [See:
PLN, June 2011, p.1].
Delaware DOC Commissioner Carl
Danberg reached out to Alan Levin, the
state’s economic development director,
knowing that Levin used to own the Happy
Harry’s drugstore chain, which he sold in
2006 before becoming a state official. Aware
that Levin had spent more than a decade
cultivating connections in the pharmaceutical industry, Danberg asked him to make
a few calls.
According to the emails obtained by
the AP, in May 2011, Levin contacted Mike
Kaufmann, CEO of the pharmaceutical division of Cardinal Health, one of the largest
wholesale distributors of prescription drugs
in the United States.
“While I know this is a bit of a political
issue, since Cardinal is not located in Delaware, I believed it may be easier for Cardinal
to do this,” Levin wrote to Kaufmann. “Is
[pentobarbital] something that Cardinal
would be interested in selling to the state of
Delaware? If not, do you have any recommendations who else we can pursue?”
Once Levin hooked up Danberg with
his connection at Cardinal, “things fell into
place,” Danberg told the AP.
Officials said the drugs that Cardinal
shipped to the Delaware DOC in June 2011
– including pentobarbital, pancuronium
bromide and potassium chloride – were
enough to last for several executions, beginning with Shannon Johnson, a convicted
murderer who was put to death by lethal
injection in April 2012.
Levin told the AP that he was “happy
to help facilitate” the process of acquiring
the drugs, but that he, Danberg and other
state officials worked hard to conceal the
process so as not to jeopardize the possibilMarch 2014

ity of getting more drugs in the future.
“I did not want it getting outside the
smallest number of people as possible how we
were pursuing the chemicals because I wanted
to make sure we had a supply of the chemicals
first,” Danberg said, candidly. “I did not want
the supplier of the chemicals to go public, to
be publicly known, simply because I did not
want that source to dry up.”
Executions in many states have been
halted or postponed due to concerns that
replacement execution drugs do not meet
the constitutional prohibition against cruel
and unusual punishment, as they may result
in pain and suffering. In addition, death
row prisoners and advocacy groups have
filed a flurry of lawsuits stemming from
states’ efforts to find alternative sources for
the drugs.
Some states have turned to compounding pharmacies to obtain execution drugs
that are no longer available from manufacturers. Compounding pharmacies typically
custom blend small amounts of specific
drugs, but are not regulated by the federal
government and the safety or effectiveness
of the drugs is not verified by the U.S. Food
and Drug Administration. A compounding
pharmacy in Massachusetts was linked to an
outbreak of fungal meningitis in October
2012 that resulted in over 60 deaths due to
contaminated medication.
Three death row prisoners in Texas, the
state with the highest number of executions,
are challenging the state’s plan to use a drug
obtained from a compounding pharmacy.
“Use of compounded pentobarbital
would constitute a significant change in the
lethal injection protocol, a change that adds
an unacceptable risk of pain, suffering and
harm to the plaintiffs if and when they are
executed,” their lawsuit contends.
Medical experts note that compounded
drugs carry a high risk of contamination
and could subject prisoners to excruciating
pain, which one expert compared to rubbing
sandpaper on an open wound.
Further, a separate civil complaint filed
in federal court in October 2013 alleges
that officials with the Texas Department
of Criminal Justice (TDCJ) submitted
falsified prescriptions for pentobarbital
to Woodlands Pharmacy, a compounding
pharmacy in Houston, and used an individual employee’s credit card to buy the
drug instead of a state purchasing order.

46

Prison officials had previously tried
to obtain pentobarbital using the name
of the “Huntsville Unit Hospital,” even
though the Huntsville Unit, which houses
the state’s execution chamber, hasn’t had
a functional hospital for more than two
decades.
“We believe that TDCJ’s purchase of
compounded pentobarbital from Woodlands Pharmacy violates numerous state
laws,” said Maurie Levin, one of the attorneys representing death row prisoners in the
lawsuit. “The vast majority of compounded
drugs can only be mixed or sold pursuant
to a doctor’s prescription. TDCJ did not
get a prescription for its purchase of compounded drugs. There are exceptions to the
requirement, but TDCJ’s purchase does not
qualify for any of them.”
The pharmacy demanded that state
officials return the pentobarbital, but they
refused.
“The states are scrambling to find the
drugs,” noted Richard Dieter, who heads
the Death Penalty Information Center.
“They want to carry out these executions
that they have scheduled, but they don’t
have the drugs and they’re changing and
trying new procedures never used before
in the history of executions.”
As a result, unpredictable things can
happen with new, largely untested lethal
injection drugs. One example was the October 15, 2013 execution of Florida prisoner
William Happ, who was put to death for
the 1986 rape and murder of 21-year-old
Angela Crowley. Happ was injected with
the sedative midazolam hydrochloride,
the first-ever use of that drug to execute
a prisoner in the United States. The drug,
known commercially as Versed, was part of
a three-drug protocol.
According to the Associated Press,
Happ’s execution lasted twice as long as it
would have had pentobarbital been used; it
took 16 minutes before Happ was declared
dead, and he “remained conscious longer
and made more body movements after
losing consciousness than other people
executed recently by lethal injection.”
The execution prompted seven Florida
death row prisoners to file a federal lawsuit
challenging the “Midazolam Protocol”
used by the Florida Department of Corrections.
“We don’t even know if the new drug
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 73 of 90

[midazolam] is working or not,” said Dieter.
“Everything is a bit of an experiment with a
human subject. If this were ordinary medicine, that would not be allowed, but this is
the death penalty and that’s how it goes.”
As another example, when Michael
Lee Wilson, 38, was executed in Oklahoma
on January 9, 2014 by lethal injection, which
included pentobarbital and a combination
of other drugs, his final words were: “I feel
my whole body burning.”
In Ohio, the planned November 2013
execution of Ronald Phillips was put on
hold due to concerns about the use of a
combination of midazolam and hydromorphone, a powerful painkiller.
“We really don’t know what the effect
of using this drug cocktail will be, and that’s
the really scary thing,” said Mike Brickner
of the American Civil Liberties Union of
Ohio. “What we are proposing is basically
experimenting on human beings.”
This was the third time Ohio prison
officials had changed their lethal injection
drugs since 2009; previously, the state had
used sodium thiopental and then pentobarbital when the former drug was no longer
available.
“We don’t know how these drugs are
going to react because they’ve never been
used to kill someone,” said Fordham University law professor Deborah Denno, an
expert on lethal injections. “It’s like when
you wonder what you’re going to be eating
tonight and you go home and root through
your refrigerator to see what’s there. That’s
what these departments of corrections are
doing with these drugs.”
“You’re basically relying on the toxic
side effects to kill people while guessing at
what levels that occurs,” explained Professor
Jonathan Groner at the Ohio State University College of Medicine. He said there
are no guidelines for giving a lethal dose
of hydromorphone because the drug is not
designed to kill. An overdose could cause
the prisoner to experience symptoms such
as an extreme burning sensation, muscle
pain or spasms, seizures, hallucination and
vomiting, Groner said.
Ohio prisoner Dennis McGuire, 53,
was executed on January 16, 2014 with
an injection of midazolam and hydromorphone. According to news reports it
took McGuire around 25 minutes to die;
he struggled to breath, tensed his body
and made snorting sounds. His family has
since filed a lawsuit in federal court over
Prison Legal News

his prolonged death, while prison officials
claimed that McGuire’s attorney coached
him to fake that he was suffocating during
the execution.
Hospira, Inc., the manufacturer that
produces midazolam and hydromorphone,
announced in February 2014 that it opposes using the drugs in lethal injections.
“Hospira makes its products to enhance and
save the lives of the patients we serve, and,
therefore, we have always publicly objected
to the use of any of our products in capital
punishment,” the company stated. Ohio
prison officials had obtained the drugs
produced by Hospira from McKesson, a
pharmaceutical distributor based in San
Francisco.
Legal challenges have halted scheduled
executions in several states, including California, Missouri, Georgia, North Carolina,
Pennsylvania and Colorado.
In October 2013, Missouri announced
that it would use pentobarbital obtained
from a compounding pharmacy. That announcement followed the Missouri DOC’s
decision to return vials of propofol it had
planned to use for lethal injections to
Morris & Dickson, the company that had
supplied the drug. Morris & Dickson had
sold the propofol to the DOC in violation
of its agreement with the German manufacturer, Fresenius Kabi, which prohibits
the drug’s use in executions.
At least one execution in Missouri was
postponed pending the switch to pentobarbital, and in February 2014 a compounding
pharmacy in Oklahoma, the Apothecary
Shoppe, agreed to not sell the drug to the
Missouri DOC. Previously, prison officials
had paid the pharmacy $8,000 in cash for
each dose of pentobarbital.
California abandoned plans to use
a three-drug execution protocol in July
2013, and instead indicated it would use
a single-drug method. The state has not
had an execution since 2006, largely due
to legal challenges to its lethal injection
procedures.
Oklahoma prison officials reportedly
used petty cash accounts to buy lethal injection drugs, including an account used to
purchase bus tickets for released prisoners,
in order to minimize the paper trail and
avoid identifying the supplier of the drugs.
Other states likewise have tried to prevent
the disclosure of their sources for obtaining
execution drugs.
“There is absolute chaos among the

47

states,” said Professor Denno. “So, every
few months it seems we see a different state
using a different type of drug, or types of
drugs.”
“Recent restrictions imposed by pharmaceutical companies and the Food and
Drug Administration make procuring
these drugs challenging. We must ensure
that individuals facing the death penalty
are afforded certain guaranteed rights of
due process before a state proceeds with an
execution,” stated Colorado Governor John
Hickenlooper.
The Denmark-based drug manufacturer Lundbeck, which holds the sole license
to produce pentobarbital for the United
States, told prison officials as early as January 2011 that the drug was not intended
for lethal injections and asked for its use in
executions to cease.
Many states then turned to propofol
instead, but the European Union, which
opposes the death penalty, threatened to
restrict shipments of the drug to the U.S. if
it was used in executions. Propofol is a common anesthetic widely used by hospitals,
and import restrictions would potentially
impact patient health and safety.
“Our system is completely broken, and
I don’t know how to say it more bluntly
than that,” said Arkansas Attorney General
Dustin McDaniel. “It’s a complete impossibility. I can no more flap my arms and
fly across the state than I can carry out an
execution.”
Some states have considered abandoning lethal injection and returning to more
traditional forms of capital punishment.
For example, a bill to permit firing squads
was introduced in Wyoming, though the
state senate voted on February 11, 2014
not to consider the legislation. A similar
bill has been introduced in Missouri, while
lawmakers in several other states, including
Virginia, Louisiana and Tennessee, have
proposed reinstating the use of the electric
chair.

Sources: Associated Press, www.delawareonline.com, www.deathpenaltyinfo.org, www.
allgov.com, www.correctionsone.com, www.
correctionalnews.com, www.motherjones.com,
The Gainesville Sun, New York Times, CNN,
National Journal, Los Angeles Times, KUOW
Radio, The Raleigh News & Observer, www.
cleveland.com, TIME, www.abcnews.go.com,
www.mercurynews.com, Washington Post,
www.nola.com
March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 74 of 90

A Rare Look Inside the Maine State Prison’s “Supermax”
An almost-clean version of hell
by Lance Tapley

T

here was a stain of what looked
like blood on the floor of the otherwise shiny-clean, empty Mental Health
Unit isolation cell. “It’s Kool-Aid,” said
my minder, a deputy warden. He smiled.
But, as the saying goes, I hadn’t drunk the
Kool-Aid.
The cell faintly stank of shit. Mentally
ill prisoners and those made mentally ill by
prolonged solitary confinement are driven
to cut themselves and to try to throw their
feces at guards.
In one of the Administrative Segregation cellblocks – pure solitary confinement
– I heard undulating cries and saw shadowy faces behind the steel doors’ tiny
windows.
The Maine State Prison “supermax,”
or Special Management Unit, is an ugly
place. Are my photos ugly enough? Trying
to fit form to content, I used an old film
camera and grainy-image-producing 400speed, black-and-white film shot usually
without a flash under fluorescent lights.
There were big limitations. I was not supposed to photograph prisoners, and my
tour was rapid. That said, I was, possibly,
the first journalist to visit and photograph
the supermax – after eight years of writing
about it.
Super-harsh supermax (super-maximum-security) prisons and their central
feature of solitary confinement became a
correctional craze 30 years ago. They became dumping grounds for the mentally
ill and others who couldn’t follow prison
rules or who simply irritated guards. At
least 80,000 human beings are held in
them nationwide. Maine opened its supermax in the coastal town of Warren in
1992. Ten years later it built the new state
prison around it.
The supermax’s unforgiving conditions are not helpful, to put it mildly, in
improving prisoner behavior. The evidence
is overwhelming, in fact, that protracted
solitary confinement damages or destroys
prisoners’ minds. Human rights groups
consider it torture. And it costs taxpayers twice as much as “general population”
incarceration.
Maine corrections commissioner JoMarch 2014

seph Ponte has reduced the typical number
of prisoners in isolation from close to 100
to 40 or so in a 900-man prison. Of the
supermax’s four cellblocks or “pods,” two,
of Administrative Segregation, have 50 cells
each, and one is now empty. The Mental
Health Unit, where solitary confinement
has never been total, has two pods of 16
cells each, one for “acute” prisoners, one for
“stabilization.” Together they held 17 men
the day I was there.
Stays in the supermax also are much
shorter now, and there’s a lot less prisoner
“cutting up” and fewer brutal cell “extractions” by guards to tie prisoners into the
restraint chair. For his reforms, Ponte has
deservedly received national attention,
helping fuel a still-weak movement to limit
solitary confinement.
But the Maine supermax is still there,
and it’s still grim. While 40 prisoners may
not sound like many, it’s the total, according to one report, that England and Wales,
with 56 million inhabitants, keep in isolation – isolation less severe than in American
supermaxes.
And the supermax is part of a prison
from which I receive constant reports
of guard cruelty, inadequate medical
care, understaffing, deliberate mixing
of predators and the vulnerable, and –
currently – turmoil because scores more
men are being forced to double-bunk.
Corrections says the double-bunking is
being done for proper “classification” of
prisoners. Critics suspect it’s being done
to save money.
It’s hard to uncover the truth of what
goes on in prisons. Prisoners are always
unhappy, prisons are rumor mills and corrections officials are tight-lipped. But the
reports I get are consistent.
I wasn’t supposed to interview prisoners, but in the Mental Health Unit
a short, meek-looking prisoner, James
Brensinger, handed me a typed essay
describing his incessant cutting up (he
showed me deep scars on his arms),
suicide attempts, hallucinations and the
medical staff ’s failure to deal with his
condition. It ends: “I am begging someone to please hear my pleas and cries.”

48

In the other part of the unit, seven
prisoners, some seemingly heavily doped,
watched a TV high on a wall. I asked an
alert young man how prisoners occupied
themselves there. He silently pointed to
the TV. Then, he remarked, referring to the
cellblock: “Our mental health unit without
mental health.”
Here – to the supermax’s Mental
Health Unit – is where Republican Governor Paul LePage and the Democratic
legislature recently decided to send violence-prone patients from the state’s chief
psychiatric hospital, Riverview, in Augusta.
Unconvicted jail prisoners whom the courts
have concluded should be examined for
their sanity – people presumably innocent
until proven guilty – will also be sent to
this prison unit. Twenty more cells will be
opened.
There’s individual insanity, and
there’s social insanity. The writer Hannah Arendt famously coined the phrase
“the banality of evil” to describe Nazi
bureaucrat Adolf Eichmann, a “normal”
man who sat at his desk and calmly
signed papers that sent millions of Jews
to their death.
The Maine State Prison’s supermax,
with its polished floors only a little
stained with blood and, while I was there,
with its tranquility only occasionally
interrupted by a prisoner’s muffled cries,
is, to me, a physical manifestation of the
banality of evil. “A clean version of hell,”
as a former prison warden described another supermax.
To be more compassionate toward its
creators, however – to be less like those
who defend this uniquely American form
of mass torture – I should discard a word
like “evil” and describe the supermax as a
manifestation of social insanity, of a sick
society.
“It’s just crazy, this whole place,” the
young man in the Mental Health Unit
told me.
This article was originally published by The
Portland Phoenix (http://portland.thephoenix.
com) on November 8, 2013; it is reprinted with
permission of the author.
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 75 of 90

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Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 76 of 90

A

Video Visitation a Growing Trend, but Concerns Remain

growing trend toward the use
of video visitation at jails across the
country is drawing the praise of corrections
officials and prisoners’ family members
alike, though some advocacy groups worry
that video visits could pose an undue financial hardship on those least able to afford
it and possibly lead to the elimination of
in-person visits.
“I think it’s the way of the future,” said
Kane County, Illinois police commander
Corey Hunger. “In the next 20 years, I think
everyone will have it.”
At some jails, visitors can use video
screens to communicate with prisoners in
another part of the facility. Other systems
allow people to conduct visits via the Internet from a remote location, including
their own homes. Prisoners typically use
video monitors set up in cell blocks or other
designated areas; the visits are monitored
and recorded. [See: PLN, July 2013, p.44;
Sept. 2012, p.42; Nov. 2011, p.37; Jan.
2010, p.22].
But in Kane County and other jails, the
installation of video systems spelled the end
of in-person visits. Hunger said not having
to screen visitors and escort them through
the jail frees up guards to perform other
duties. Officials also claim that doing away
with face-to-face visits reduces confrontations among prisoners and the risk that
visitors will smuggle in contraband.
“[F]rom the standpoint of safety and
security, it’s a huge improvement,” stated St.
Clair County, Illinois Sheriff Rick Watson.
“Every pod has a video monitor and the
prisoners don’t have to be moved for visits,
which saves on staff time. And if you cut
down on movement of prisoners, you cut
down on dangerous incidents.”
Eliminating face-to-face visits worries
some prisoner advocacy groups.
“It’s a fundamental right to have
meaningful visits with loved ones,” said
John Maki, executive director of the John
Howard Association of Illinois, a Chicagobased organization. “If it’s to supplement
in-person visits, that’s great. I think the
danger in video visitation is using it to
replace in-person visits,” he added.
“I hate not being able to see him
face-to-face when I come to the jail,”
stated Sherry McCullough, whose son is
incarcerated at the St. Clair County Jail. “I
want to get a good look at him, to tell him
March 2014

to stand up and turn around so I can see
that he’s getting enough to eat and that he
hasn’t been hurt. Instead, I have to see his
cellmates marching around behind him in
their underwear.”
However, other family members have
complained about problems with in-person
visits, including long wait times, searches
and non-contact visits conducted through
a window using telephones.
“A lot of times you’re trying to talk to
your loved one and the phone on their end
doesn’t work,” said Marilyn Murphy. “I don’t
like it. I like it when you can physically see
them,” she added. However, Murphy said
visiting her son remotely through a home
computer would be welcome. “To sit in the
privacy of your home and visit a loved one?”
she said. “Oh, yes.”
Critics complain that video visits are
sometimes used to financially exploit prisoners and their families, and that service
providers often return a percentage of the
video visitation fees to correctional facilities.
Paul Wright, director of the Human
Rights Defense Center, the parent organization of Prison Legal News, described the
practice as a kickback. “They’re using this
as another revenue stream from people who
have the least ability to do anything about
it,” he said, comparing it to the “commission” model prevalent in the prison phone
industry. [See: PLN, Dec. 2013, p.1]. He
also noted that online video conferencing
for non-prisoners, such as Skype, is usually free.
The largest provider of video visits,
Securus, charges $1.00 per minute for the
service. Securus CEO Richard Smith said
the company anticipates adding another
100 video visitation sites by the end of
2014. According to the company’s website,
Securus already provides phone service to
about 2,200 correctional facilities housing
more than 850,000 prisoners in 45 states, as
well as 81 video visitation systems.
Global Tel*Link, the nation’s largest
provider of phone services in prisons and
jails, also offers video visitation – which is
typically fee-based, with prisoners’ families
paying the cost of the visits.
For example, the Del Valle jail in Travis
County, Texas ended in-person visitation
in 2013 except for attorney visits. Instead,
Securus installed a video system and charges

50

a $20 fee for a 20-minute visit. The county
gets a $4.60 cut from each fee.
At the Lake County, Illinois jail, a
30-minute video visit costs $25.95 and the
county receives 20% of the revenue generated from visitation fees. The Shawnee
County Jail in Kansas eliminated in-person
visits in January 2014 and now charges
$20 for a 20-minute video visit. Other jails
that have recently adopted video visitation,
charging fees that typically range from $.40
to $1.00 per minute, include those in Alachua County, Florida; Hamilton County,
Tennessee; Cumberland County, New
Jersey; Chippewa County, Wisconsin; and
Maricopa County, Arizona.
While the cost of video visitation may
seem steep, when prisoners’ family members can visit over the Internet from their
homes it eliminates the time and expense
of traveling to the jail, plus allows them to
accommodate work or school schedules.
The non-profit Prison Policy Initiative
has urged the Federal Communications
Commission (FCC) to regulate the fees for
video visits in the same way it has regulated
prison phone rates. The Massachusettsbased organization warned in a December
20, 2013 comment filed with the FCC that
video visitation fees shared with corrections
officials provide “perverse incentives” to
eliminate in-person visits.
“The bottom line is that prison visits are
a basic right that needs to be disconnected
from a profit motive, both for private companies and the jails,” stated John Maki.
Despite such concerns, video visitation
has gained support from both jailers and
prisoners’ family members.
“I liked it because the privacy is better, said Karla Maldonado, who visits her
brother at the Cook County jail. “Now you
can hear what he’s saying.”
The Cook County jail complex eliminated in-person visits at a new building
following the installation of a $1 million
video visitation system, though face-to-face
visits are still allowed in older units at the
complex.
All 25 Illinois state prisons are scheduled to begin using video visitation this
spring, officials said, with an estimated cost
of $30 per visit. But Illinois Department of
Corrections spokesman Tom Shaer stressed
the state will not use the system, provided by
Global Tel*Link, as a revenue source.
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 77 of 90

“Any money that comes to us will be
applied to offset our costs,” he noted. “There
is no profit motive for us. But we have so
many families wishing to do this we may
need more staff hours to make the service
available.”
Shaer said the state also has no plans to
eliminate in-person visits. “I can’t imagine
the scenario in which someone would travel
to a prison and then wish to communicate
through a video screen rather than see a
prisoner face-to-face,” he said. “All research
shows in-person visits absolutely benefit the
mental health of both parties; video can’t
match that.”

Certainly, free or reasonably-priced
video visitation offered in conjunction
with in-person visits can benefit prisoners’
families who must travel long distances or
otherwise have difficulty participating in
face-to-face visits. But eliminating in-person visits and charging for video visitation
is just another way to monetize the corrections system and financially exploit
prisoners and their family members.
“With proper regulation and oversight,
prison and jail video communication has
the potential to offer additional avenues for
critical family communication. But if left
unregulated, this market could follow the

trajectory of the infamously broken prison
telephone industry, dominated by the same
corporations,” warned Prison Policy Initiative executive director Peter Wagner. “In
that market, companies compete not based
on price or service, but rather on who can
charge families the most and kick back the
largest share of the revenue to the facility
that awarded the monopoly contract.”
Sources: Chicago Tribune, South Jersey Times,
Chicago Sun-Times, https://securustech.net,
St. Louis Post-Dispatch, Arizona Republic,
Phoenix New Times, www.wcjb.com, www.
cjonline.com

Online Gaming Accounts of New York Registered
Sex Offenders Restricted or Closed

A

ccording to New York Attorney
General Eric T. Scheiderman, around
5,600 online gaming accounts belonging to sex offenders registered with the
State of New York have been restricted or
canceled. Gaming companies Microsoft,
Sony, Blizzard, Electronic Arts, Warner
Brothers, Disney, Funcom, THQ, Gaia
Online, NCSoft and Apple all cooperated in “Operation: Game Over,” resulting
in the closure of sex offenders’ gaming
accounts or revocation of their online communications privileges. The move was an
initiative of the Entertainment Software
Association.
New York requires registered sex offenders to list all of their email addresses,
screen names and similar online identifiers
in order to limit their access to certain websites such as Facebook. Scheiderman said
sexual predators had been using the voice
and text chat features in online games to
identify and lure potential victims.
“The Internet is the crime scene of
the 21st century, and we must ensure that
online video game platforms do not become
a digital playground for dangerous predators,” he said. “That means doing everything
possible to block sex offenders from using
gaming systems as a vehicle to prey on
underage victims.”
As one example, Richard J. Kretovic,
a 19-year-old resident of Monroe County,
New York, pleaded guilty to sexually abusing a 12-year-old boy he met online on
XBox Live in 2011. He lured the boy to his
house, where the abuse occurred. Kretovic
was sentenced to a six-month jail term and
Prison Legal News

10 years’ probation in May 2012.
The logic of banning registered sex offenders from online gaming forums is hard
to understand, though, as it does not affect
unregistered offenders and will drive sexual
predators to open accounts using pseudonyms and anonymous email addresses.
Meanwhile, sex offenders who were not

abusing their online gaming account privileges – including those whose offenses did
not involve children – are being collectively
punished by having their accounts restricted
or canceled.
Sources: New York Times, CBS6 Albany,
www.gamespot.com

PLRA Does Not Permit Waiver
of Court-ordered Answer

A

n Illinois federal district court
has condemned a practice employed
by the Illinois Attorney General when
representing defendants in lawsuits brought
by prisoners. The district court concluded
that a motion for leave to waive an answer
is unnecessary, and that the assertion of affirmative defenses in a pleading purporting
to be a “waiver” of the defendants’ obligation to file an answer is not permitted by
statute or rule.
In the case at issue, the defendants’
motion for leave to waive an answer was
filed in response to the court’s order that
they answer the complaint. The motion
relied upon the language of 42 U.S.C. §
1997e(g)(1). The district court noted that
that provision of the Prison Litigation
Reform Act (PLRA) “allows defendants
to conserve resources by waiving their
right to reply to potentially frivolous or
meritless claims.” It does not require the
defendants to request a waiver to file an
answer unless ordered to do so by the court
upon a finding the claim has a reasonable

51

chance of prevailing on the merits.
Once a district court orders an answer
from the defendants they must comply,
and the PLRA does not provide that their
answer may deviate from the Federal Rules
of Civil Procedure. Moreover, the PLRA
states the court may not grant relief to a
prisoner-plaintiff until the defendants file
an answer, making the answer essential to
the litigation.
The district court noted the defendants
may generally deny the allegations in a
complaint under Rule 8(b)(3), but may not
respond by continuing to waive their answer
“while simultaneously purporting to plead
affirmative defenses.” The defendants’ motion, the court held, failed to comply with
its order to answer the complaint.
The district court gave the defendants
one week to file an answer and said failure to
do so would result in their having “admitted
the allegations of the amended complaint.”
See: Boclair v. Hardy, U.S.D.C. (N.D. Ill.),
Case No. 11-cv-05217; 2013 U.S. Dist.
LEXIS 14278.
March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 78 of 90

New Hampshire Prisoners Suspected of
Breaching Prison Computer System

N

ew Hampshire officials are investigating a suspected “breach” of the
Department of Corrections (DOC) computer system at the State Prison for Men in
Concord. The investigation began when a
staff member noticed a cable linking a computer used by prisoners to a staff computer
with access to the DOC’s data system.
“I’m told an inmate, or inmates, were
able to hack into the CORIS system,” said
Mark Jordan, a former president of the
guards’ union. “Once they are in there, they
could have access to parole dates, sentencing
information, programming schedules for
inmates, staff information. And they could
change any of that. They could delete [detainer] information from other states.”
The Corrections Information System
(CORIS) was installed in 2008 by Abilis
New England. “CORIS connects relevant
stakeholders through a single electronic
offender record and centralized database,
thereby providing a holistic view of the
offender’s status, history, and risk profile,”
a news release stated when CORIS was
installed.
When the cable was noticed on August 24, 2012, the DOC called the State
Police to assist in the investigation. “It’s a
really complex investigation,” said DOC
spokesman Jeffrey Lyons. “We don’t know
whether any data was compromised. Maybe
none was.”
Officials did not have many details
about the breach. “We don’t know for certain when it occurred. We don’t know how
long ago it may have occurred,” Lyons said.
“We don’t know how it occurred.”
He added, “CORIS is password protected and only certain staff have the ability
to add to or otherwise change the data that
is maintained there. Most other data on the
DOC network is password protected and
anyone who attempted to access that would
be blocked unless they had the appropriate
password. Appropriate disciplinary action
will be taken when all of the facts are gathered at the conclusion of the investigation.”
The breach occurred in an area of the
Correctional Industries program, which
employs about 200 prisoners in a furnituremaking shop, printing shop, license plate
shop, woodworking shop and sign-making
shop. Prisoner workers in the industries
March 2014

program use about two dozen computers
in a closed network to track contracts and
billing.
The investigation includes a forensic
computer crimes investigator. According to
DOC spokesman Lyons, contacted by PLN

on March 4, 2014, “This is still an ongoing
investigation that is being handled by the
NH State Police Major Crimes Unit.”
Sources: Associated Press, New Hampshire
Union Leader

Businesses, Members of Congress
Not Happy with UNICOR
by Derek Gilna

W

hen a powerful U.S. Senator
takes interest in an issue, even a
bureaucratic government agency like the
Bureau of Prisons (BOP) pays attention.
Kurt Wilson, an executive with American Apparel, Inc., an Alabama company
that makes military uniforms, and Michael Marsh of Kentucky-based Ashland
Sales and Service Co., found that out after
they learned that UNICOR, which runs
prison industry programs for the BOP, was
considering bidding on contracts for business that their companies already had. A
public statement from U.S. Senator Mitch
McConnell, who sits on the Senate Appropriations Committee, led UNICOR to
change its mind.
Like many other initiatives of the
federal government, UNICOR, formally
known as Federal Prison Industries, Inc.,
started off as well-intentioned. Prisoners
earning from $.23 to $1.15 an hour are
trained to work in factories supervised by
BOP staff, where in theory they learn job
skills that will help them find employment
following their release. However, UNICOR
has become not only a job training program but a manufacturing behemoth that
employs some 12,300 prisoners and made
approximately $606 million in gross revenue in fiscal year 2012 – yet still reported
a net loss of $28 million. [See: PLN, Nov.
2013, p.52].
With that kind of size, purchasing
power and cheap prisoner labor, it is almost impossible for small businesses to
compete. Indeed, several companies have
lost federal contracts due to competition
from UNICOR, resulting in job losses
among freeworld workers. [See: PLN,
Feb. 2013, p.42]. This has made some

52

business owners nervous – and angry.
American Apparel has to compete
head-to-head with UNICOR on almost all
of its contracts with the federal government,
and the company said unfair competition
from low-paid prisoner labor forced it to
close a plant in May 2012 and lay off 175
workers. “We pay employees $9 on average,”
Wilson stated. “They get full medical insurance, 401(k) plans and paid vacation. Yet
we’re competing against a federal program
that doesn’t pay any of that.”
Ashland Sales and Service Co. has
been making windbreakers for the U.S. Air
Force for 14 years, according to Marsh, and
competition from UNICOR is endangering 100 jobs at the company, which is the
largest employer in Olive Hill, Kentucky.
“That’s 100 people buying groceries. We use
trucking companies in the town; buy parts
and light bulbs there every day. That’s all lost
when prisons take away contracts.”
UNICOR has 81 factories in BOP
facilities around the country and does far
more than supply products and services
for prisons and prisoners’ needs. It manufactures goods in six industry categories
– clothing and textiles, electronics, fleet
and industrial products, office furniture,
recycling, and data entry and other services
– with clothing being its mainstay.
In the past, legislation gave UNICOR
an advantage in obtaining various federal
contracts, but the law was amended by
Congress from 2002 to 2005, and again
through Section 827 of the National Defense Authorization Act of 2008, to limit
that preferential advantage.
Kurt Courtney, director of governmental relations at the American Apparel
and Footwear Association, said UNICOR
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 79 of 90

is “a federal program [that is] tanking our
industry.... The only way for workers to get
jobs back is to go to prison. There’s got to
be a better way to do this.”
U.S. Representative Bill Huizenga
sponsored a bill in 2011 to do just that – HR
3634, the Prison Industries Competition in
Contracting Act. “This is a threat to not just
established industries; it’s a threat to emerging industries,” Rep. Huizenga stated at the
time. “We know that in the [economic]
recovery, many new jobs are coming out of
small businesses, and it makes no sense to
strangle them in the cradle.”
Manufacturing in America has changed
over the decades but UNICOR does not use
state-of-the-art manufacturing techniques
because it has no need or motivation to do
so – even though this means prisoners employed in UNICOR programs don’t receive
modern job training that will help them
obtain post-release employment.
As for quality, when UNICOR steps
outside of its comfort zone and attempts
to compete in areas other than prisoner
goods and services, it sometimes falls flat.
Even though it landed a federal contract to
supply helmets for the U.S. military based

Prison Legal News

upon a preferential bidding process, 44,000
of the helmets were recalled in 2010 due to
quality issues. UNICOR then won a nobid contract the following year to produce
body armor to be supplied to Pakistan’s
military. [See: PLN, Sept. 2011, p.46; Jan.
2011, p.20].
Although the BOP has cited statistics
claiming that UNICOR workers have
lower recidivism rates, such data has been
questioned. In 2013, the Congressional
Research Service noted that “... questions
about the methodology used in most evaluations of correctional industries means that
there is no definitive conclusion about the
ability of correctional industries to reduce
recidivism.”
John Palatiello, president of the Business Coalition for Fair Competition, said
his organization comprised of businesses
and taxpayer groups is sympathetic to the
BOP’s goals of providing job training to
prisoners and reducing recidivism, but that
such goals should not be accomplished at
the expense of small businesses and their
employees who face unfair competition
from UNICOR.
HR 3634 failed to pass and was reintro-

53

duced on May 22, 2013 as HR 2098, which
has 15 cosponsors and is currently pending
in committee. Among other provisions,
the legislation would require UNICOR
to compete for its contracts, “minimizing
its unfair competition with private sector
firms and their non-inmate workers and
empowering Federal agencies to get the
best value for taxpayers’ dollars.”
HR 2098 would further require UNICOR’s board of directors to, “not later than
September 30, 2014, increase the maximum
wage rate for inmates performing work for
or through Federal Prison Industries to an
amount equal to 50 percent of the minimum
wage,” and “not later than September 30,
2019, increase such maximum wage rate to
an amount equal to such minimum wage.”
However, the bill also provides that up to
80% of prisoners’ gross wages may be deducted for taxes, fines, restitution, family support,
a savings fund or other purposes.

Sources: www.money.cnn.com; www.govtrack.us; www.businessinsider.com; “Federal
Prison Industries: Overview and Legislative
History,” by Nathan James, Congressional
Research Service ( Jan. 9, 2013)

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 80 of 90

Ninth Circuit Holds Staff Sexual Abuse Presumed Coercive;
State Bears Burden of Rebutting Presumption

T

he Ninth Circuit Court of Appeals
has held that a district court erred
when finding a prisoner could not state
an Eighth Amendment sex abuse claim
because he “consented” to a relationship
with a prison guard.
In 2002, Idaho prisoner Lance Wood
and guard Sandra De Martin began a romantic, but not sexual, relationship. Within
a few months, however, Wood heard “rumors that Martin had gotten married.” She
denied being married but Wood said he
wanted to end the relationship.
Shortly thereafter, Martin entered
Wood’s cell and “cupped her hand on [his]
groin ... enough to excite [him].” Wood
pushed her away and said “you need to back
off on this.”
Wood again tried to end the relationship but Martin pursued him and subjected
him to “aggressive pat searches” on several
occasions. Wood went so far as to ask another guard for help, but Martin continued
to pursue him.
After Wood ended the relationship,
Martin again entered his cell and “grabbed
ahold of [his] penis and started to stroke
it.”
Martin continued to harass Wood after
that incident, but he did not initially report
her due to fear of retaliation. Eventually he
did report Martin and was transferred to a
different prison the next day.
Wood then filed suit in federal court,
alleging sexual harassment, retaliation
and failure to protect claims. The district
court granted summary judgment to the
defendant prison officials on Wood’s retaliation claim and his claims that Martin
had entered his cell, cupped his groin and
stroked his penis.
The district court relied on Ault v.
Freitas, 109 F.3d 1335 (8th Cir. 1997) to
hold that “welcome and voluntary sexual
interactions, no matter how inappropriate,
cannot as a matter of law constitute ‘pain’ as
contemplated by the Eighth Amendment.”
Under that standard, the court concluded
that Wood could not establish an Eighth
Amendment violation.
The Ninth Circuit disagreed, first recognizing the indisputable proposition that
a guard’s sexual harassment or abuse of a
prisoner violates the Eighth Amendment.
March 2014

Noting that whether a prisoner can consent
to a relationship with a guard was a matter of first impression, the appellate court
observed that “because of the enormous
power imbalance between prisoners and
prison guards, labeling a prisoner’s decision
to engage in sexual conduct in prison as
‘consent’ is a dubious proposition.”
The Court of Appeals declined to
follow Ault because it “utterly failed to recognize the factors which make it inherently
difficult to discern consent from coercion
in the prison environment.”
While the Ninth Circuit was “concerned about the implications of removing
consent as a defense for Eighth Amendment claims,” it found that “allowing
consent as a defense may permit courts
to ignore the power dynamics between a
prisoner and a guard and to characterize the
relationship as consensual when coercion is
clearly involved.”
Ultimately, the Court of Appeals adopted a bright-line rule which establishes a
presumption that alleged sexual misconduct
by prison staff is not consensual. While
declining to exhaustively define coercive
factors, the Court noted that obvious factors
include “explicit assertions or manifesta-

T

tions of non-consent” and “favors, privileges,
or any type of exchange for sex.”
The appellate court held that the
state bears the burden of rebutting “this
presumption by showing that the conduct
involved no coercive factors.... Unless
the state carries its burden, the prisoner
is deemed to have established the fact of
non-consent.”
Applying this rule, the Ninth Circuit
held Wood had established non-consent for
purposes of surviving summary judgment,
because his “objective conduct demonstrates
non-consent and the state cannot overcome
its burden.” See: Wood v. Beauclair, 692 F.3d
1041 (9th Cir. 2012).
Following remand, a jury trial was held
in December 2012, resulting in a mistrial.
On April 8, 2013 the district court denied
Wood’s motion to hold the defendants in
contempt for “allegedly recording his attorney phone calls, monitoring his attorney
visits, and opening and reviewing his legal
mail,” finding they had legitimate security
reasons for doing so. The court also denied
his motion for a protective order and for appointment of counsel. See: Wood v. Martin,
2013 U.S. Dist. LEXIS 52305 (D. Idaho
2013).

Lawsuits filed over Oregon Jail Death

he mother of a deceased prisoner
has sued jail and hospital officials over
the death of her son at the Marion County
Jail (MCJ) in Salem, Oregon.
On June 14, 2010, Robert Haws was
arrested for several criminal offenses and a
probation violation, according to court records.
He was held at the MCJ pending trial.
A month later, Haws was playing
basketball with other prisoners at 9:30
a.m. During an argument, fellow prisoner
Robert Dailey punched Haws in the jaw,
knocking him unconscious and causing his
head to hit the concrete floor. Dailey and
the other prisoners fled.
Guards did not witness the altercation or see Haws lying unconscious on the
basketball court. Approximately fifteen
minutes later, Dailey and a few other prisoners returned to check on him.
They dragged Haws to the edge of

54

the court and propped him up. He was
barely conscious, vomiting and urinating
on himself and bleeding from the nose.
Unbeknownst to guards, one prisoner made
several trips to the laundry room to replace
Haws’ bloody clothing.
Guards did not notice Haws on the
video monitor until 10:40 a.m. When
they finally responded, he was disoriented,
unresponsive and exhibiting signs of delusion, according to a federal lawsuit filed by
his mother, Diane Bernard. See: Bernard
v. Myers, U.S.D.C. (D. Ore.), Case No.
11-cv-00608-HZ.
Haws was handcuffed and taken to
segregation by wheelchair. Guards later
placed him in leg restraints, even as he continued to vomit and bleed from his mouth
and nose. Jail officials finally called 911
sometime after 11:15 a.m., and paramedics
arrived fifteen minutes later.
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 81 of 90

“Security officers and medical staff
present said that Haws probably had a
seizure and conducted no medical exam
for evidence of trauma or other causes,”
the suit alleged.
A jail nurse told paramedics that Haws
may have suffered a seizure, and a guard
who rode in the ambulance falsely informed
paramedics that Haws had been suicidal
two days prior to the incident and “had
lots of access to over-the-counter drugs.”
His medical history and symptoms did not
support those claims, and the possibility of
head trauma was never discussed.
Haws finally reached the emergency
room at Salem Health about 12:00 p.m.
but his condition was not classified as a true
emergency. Doctors treated Haws “as if he
were an overdose patient despite the rather
ample evidence of head trauma,” according
to court records.
In a separate state court suit, Bernard
alleged that hospital employees were negligent in diagnosing and treating her son. She
claimed, for example, that Haws remained
chained to a gurney, without a head scan,
from noon until evening.
“A critical factor in overall outcome
from acute subdural hematoma is the timing of operative intervention,” the lawsuit
stated. “Those operated on within four
hours of injury may have mortality rates as
low as 30 percent. Those operated on after
four hours of sustaining the injury have
mortality rates around 90 percent.”
“The hospital allowed him to languish
for about nine hours in the ER,” said Michelle Burrows, a longtime prisoners’ rights
attorney who represents Bernard. “That is
somewhat inexplicable by the hospital.”
When an X-ray was finally performed
at about 7:00 p.m., it revealed that Haws
had a subdural hematoma. He was rushed
into emergency brain surgery but emerged
five hours later in a coma; he remained on
life support for four days and died a week
after the surgery.
“Defendants failed to adequately evaluate and diagnose [Haws] by assuming facts
not present and treating [him with] less
than the standard of care, because [he] was
an inmate,” the suit filed by his mother
alleged.
When Haws was admitted, hospital
staff misidentified him as having come from
the Oregon State Penitentiary, according to
court documents. While such a mistake may
seem innocuous, the evidence suggested
Prison Legal News

that the lack of adequate care provided to
Haws was the result of prisoner bias and
mistreatment by hospital staff. A jail nurse
admitted during her deposition testimony
that she had debated sending Haws to a
different hospital because she had “so many
long-term concerns with Salem Health and
the way they treat prisoners.”
Bernard is suing the hospital and its
staff for medical malpractice, wrongful
death and civil rights violations for the
delay in providing adequate medical care.
She said she filed separate actions because
she did not want to sue the Marion County
Sheriff ’s Office in Marion County Circuit
Court, and wasn’t sure if a suit against
the hospital and staff could be brought in
federal court.

A jury trial has been requested in
both cases. Unsurprisingly, both hospital
spokesman Mark Glyzewski and sheriff ’s
office spokesman Don Thomson declined to
comment, citing the pending litigation.
The case in federal court was remanded
to the Marion County Circuit Court in
May 2013, where it remains pending with
a status hearing scheduled for June 3,
2014. See: Bernard v. Salem Health, Marion
County Circuit Court (OR), Case No.
12C18741.
Robert Dailey ultimately pleaded
guilty to criminally negligent homicide for
causing Haws’ death, and was sentenced to
five years in prison.
Source: Statesman Journal

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March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 82 of 90

News in Brief

Arizona: Two prisoners at the Yavapai
County Jail have been sentenced for their involvement in a fraudulent tax refund scheme.
James Borboa pleaded guilty and on September 8, 2013 received an additional term of 18.5
years in prison for using other prisoners’ IDs
to file tax returns for 2010, 2011 and 2012.
Justin Eugene Shaw Young, who also participated in the scheme, pleaded guilty in August
2013 and received a mitigated sentence of 6
years. Borboa and Young offered kickbacks of
about $1,000 to each prisoner whose ID was
used in the tax scam.
California: On August 23, 2013, Robert Eugene Vasquez, 36, was sentenced to
life in prison without the possibility of parole for the stabbing death of his neighbor,
Bobby Ray Rainwater, Jr. Vasquez had been
told by his mother that Rainwater was a
child molester, though actually he had been
required to register as a sex offender for an
offense that did not involve a child. Vasquez
attacked Rainwater in their mobile home
park, punched him in the back of the head
and then stabbed him until he was nearly
decapitated.
California: A veteran prison guard
at the California Men’s Colony was sentenced to 30 days in jail in August 2013
for accepting bribes. Kevin Jon Venema, 50,
was confronted by internal affairs officers
who accused him of selling tobacco and
cell phones to prisoners. Venema, initially

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March 2014

charged with three felonies, pleaded no
contest to one count of accepting a bribe as
a correctional officer. His sentence included
three years of probation in addition to the
jail term.
California: Santa Barbara County
jail guards Robert Kirsch and Christopher
Johnson pleaded not guilty on August 30,
2013 to charges of assaulting a prisoner.
They were released on their own recognizance and had no comment after their
arraignment. “Our agency does not tolerate
the unnecessary or excessive use of force. I
am saddened by these allegations,” Sheriff
Bill Brown said in a statement.
Colorado: In a 400-page report, the
Colorado Bureau of Investigation concluded that wrongdoing by jail officials was
not responsible for the in-custody death of
Zackary Dean Moffitt, 33, who suffered a
cardiac arrest during a confrontation with
deputies at the Summit County Jail. As a
result of the report, the 5th Judicial District
Attorney’s Office issued a declination letter
on August 26, 2013, confirming that they
would not pursue criminal charges related
to Moffitt’s death.
Florida: A Pasco County Jail nurse’s
assistant was fired and arrested on August
27, 2013 after she used her agency laptop
to hack into the email accounts of Sheriff
Chris Nocco and other top jail staff. Diedre
Devonne Fitzgerald, 24, was released on
$15,000 bail after she admitted to unlocking
passwords and using the hacked accounts to
obtain confidential material. She had worked
at the jail for almost two years.
Georgia: On September 9, 2013,
Georgia state prisoner Jesse Barrett Mainor
was charged with impersonating a police
officer in connection with a telephone
scam. Mainor had made phone calls to at
least nine Alabama residents, claimed they
had outstanding warrants and attempted to
get them to send him money on Green Dot
Moneypak cards. A grand jury will decide
whether Mainor, who also has outstanding
charges in Florida, will face trial on eight
other charges related to the phone scam.
Georgia: At a hearing in Bibb County
Superior Court on August 26, 2013, former
jail guard Nazon Eo’ne Johnson, 22, was
sentenced to four years’ probation for bringing alcohol into Central State Prison and
violating his oath of office. Another guard,
Paris Dewayne Watson, who pleaded guilty

56

to the same charges, admitted the alcohol
was for consumption while on duty. Both
guards were sentenced as first-time offenders, and must surrender their Peace Officer
Standards and Training certification and
pay fines and attorney fees in addition to
their terms of probation.
Illinois: Kenneth Conley, who escaped
from the Metropolitan Correctional Center
in December 2012 while facing federal
bank robbery charges, was sentenced to a
prison term of 41 months on February 24,
2014. Conley, 40, and fellow prisoner Joseph
Banks had used bed sheets and dental floss
to rappel 17 stories from a window at the
high-rise jail; they then escaped in a cab.
Banks was caught two days later while
Conley remained on the run for 18 days.
At his sentencing hearing, while the judge
was explaining the 41-month sentence for
the escape charge, Conley told him, “You
can take your analogy and shove it right
up your ass.”
India: On September 2, 2013, Jai
Shankar, also known as “Psycho Killer
Shankar,” a convicted murderer and rapist,
escaped from the high-security Parappana
Agrahara jail with the help of a duplicate
key and a bed sheet, which he used to
climb down a wall. Shankar also allegedly
scaled two 15-foot walls and wore a police
uniform when he absconded. Eleven jail
employees were suspended in connection
with the escape.
Indiana: Michael Snow, a shift supervisor at the Marion County Jail, was
bitten by prisoner Deondre Langston on
August 22, 2013. Guards were trying to
transfer Langston to the medical unit for a
psychological evaluation when he resisted
and charged at Snow with his head down.
He then wrapped his arms around Snow’s
legs and bit him on the thigh. Snow was
treated for the bite wound, which broke
the skin and caused bruising; he plans to
file charges against Langston.
Indiana: On July 30, 2013, Marcus
Crenshaw, a guard at the Indiana State
Prison, was caught bringing three-quarters
of a pound of marijuana into the facility. He
was suspended without pay and charged
with trafficking with an offender, a Class C
felony. Crenshaw was stopped and searched
at the start of his shift and found to be in
possession of approximately 343 grams
of marijuana that DOC officials said was
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 83 of 90

intended for delivery to a prisoner.
Indiana: Two unnamed Indiana State
Prison guards were hospitalized following
an August 22, 2013 incident in which they
were stabbed by prisoner Terrance Swann.
One was injured so severely that he had to
be airlifted to Wishard Memorial Hospital
in Indianapolis; the other guard was treated
at a Michigan City hospital and returned
to work later that same day. The prison was
placed on lockdown after the attacks and
Swann was transferred to the Westville
Correctional Facility.
Kentucky: A contract food service
worker was charged with rape and promoting contraband at the Henderson County
Detention Center on September 11, 2013.
Britanny L. Murch, 26, was jailed on two
felony counts of third-degree rape and two
felony counts of first-degree promoting
contraband. State police said Murch had
sex with a prisoner and brought him methamphetamine and alcohol. She pleaded
guilty to the charges and was sentenced on
February 25, 2014 to concurrent terms of
12 months on each count of rape and three
years on each contraband charge.
Louisiana: As a result of a joint investigation involving the Louisiana State
Police and Lincoln Parish Sheriff ’s Office,
prison guard Danny Henshaw was charged
with using excessive force against a prisoner
during a disturbance at the Lincoln Parish
Detention Center. Henshaw resigned from
the Sheriff ’s Office and turned himself
in on August 22, 2013. The prisoner was
examined by medical staff at the facility
but did not report any injuries as a result

of the incident.
Maryland: Prince George’s County
deputy sheriff Lamar McIntyre pleaded
guilty on August 15, 2013 to two counts of
sexual misconduct. He was initially charged
with rape, but the charges were reduced
after the female prisoner he had been accused of assaulting told investigators the
sex was consensual. A $15 million lawsuit
was filed against the former deputy by the
34-year-old prisoner, who said the incident
occurred inside a holding cell while she
awaited a court hearing.
Mexico: A prison in the Mexican
town of Nuevo Laredo, across the border
from Laredo, Texas, was the site of yet
more violence in Mexico’s overcrowded
prison system. On August 29, 2013, eight
prisoners were murdered with homemade
knives after being transferred to the facility; it was unclear whether the killings
were gang-related. In October 2013, PLN
reported a violent disturbance at a prison
in the central Mexican state of San Luis
Potosi that left 11 prisoners dead and more
than 65 injured.
Michigan: Derreck White, also known
as Abraham Pearson, attacked Deputy
Harrison Tolliver in a holding cell near a
Detroit courtroom on September 9, 2013.
Using a sharpened comb to stab the guard
three times in the neck, White handcuffed
Tolliver and left the courthouse wearing
his uniform; he then carjacked a minivan
and escaped. White was captured later
the same night while walking along I-94.
Harrison was treated at a local hospital
and released.

Mississippi: Tyler Smith, 20, beat fellow prisoner Clifton Majors, 35, to death at
the Central Mississippi Correctional Facility on September 1, 2013, because he feared
that Majors and other prisoners planned to
harm him. MDOC Commissioner Christopher Epps said “breaches in security” in
the maximum-security area of the prison
allowed the deadly assault to occur. Investigators said there was no indication Smith
had used a weapon in the attack.
Mississippi: As many as 90 prisoners
were released from their cells on August 24,
2013 after an altercation between a guard
and a prisoner resulted in the prisoner gaining control of the keys to many of the pods
in C Building at the Lauderdale County
Jail. Sheriff Billy Sollie said six prisoners
were charged with arson, escape, simple assault and aiding escape in connection with
the disturbance. Surveillance video helped
investigators identify the prisoners involved
in the incident.
Nevada: There’s the Mile High Club,
then there’s the 2.9 Mile Drive Club. That’s
the distance between the Clark County
Detention Center (CCDC) and the city jail,
which provided prisoners Carlisa Brookins
and Alexis Garcia enough time to engage in
oral sex while they were being transported
in a jail van on August 8, 2013. After the
tryst was discovered, Brookins and Garcia
were returned to the CCDC where they
were charged with voluntary sex with an
inmate. Brookins said she performed the
act to “make the guys in the back of the
bus jealous.”
Nevada: Michael Marcel Law pleaded

(Void in New York)

Airway Heights, WA.)

Prison Legal News

57

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 84 of 90
News In Brief (cont.)
guilty on January 7, 2014 to felony battery
charges stemming from an incident at the
Clark County Detention Center. Law walked
into the jail with an aluminum baseball bat
in September 2013 and proceeded to attack
jail guard Darren McCray, who was the first
officer he encountered. Law told detectives
he was seeking revenge against the police for
failing to conduct a proper investigation after
he was robbed. He was sentenced to 3–10
years on March 3, 2014.
New Hampshire: On September
4, 2013, the New Hampshire Executive
Council rejected a pardon request from
Thomas Schoolcraft, a former Cheshire
County jail guard who was convicted in
2004 for a series of home burglaries. The
Council voted 3-2 to deny the pardon,
with Councilmember Christopher Sununu
stating that Schoolcraft’s crimes were still
“fresh in the minds” of his victims. Schoolcraft is currently pursuing a master’s degree
in criminology and had hoped a pardon
would allow him to resume working in law
enforcement.
New York: While incarcerated at the
St. Lawrence County Correctional Facility,

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Joshua Henderson entered another prisoner’s cell, pushed him down and allegedly
reached into the victim’s pants and grabbed
his genitals. Henderson, 24, was charged
with forcible touching and second-degree
harassment in connection with the August
30, 2013 incident.
New York: On August 25, 2013, Robert Smalls, an off-duty prison guard, shot
his 17-year-old son. There were conflicting
accounts regarding what happened. Smalls
told investigators he thought there was
an intruder and felt he was in immediate
danger; his son, Quasaun, told police the
two had been arguing. Quasaun fled the
hospital before being treated for the gunshot wound, and his father was charged
with felony assault and criminal possession
of a weapon.
North Dakota: New Castle Correctional Facility prisoner Michael Howard
Hunter mailed a threatening letter to
federal judge Rodney Webb on December
12, 2012. He was charged with sending the
letter even though Judge Webb had died
more than three years earlier, and pleaded
guilty on September 2, 2013. He faces up
to 10 years in federal prison.
Ohio: On August 16, 2013, federal
prosecutors filed charges against Marlon

Tayor, a former guard at the Lorain County
Jail, for repeatedly striking a prisoner and
causing him bodily injury. The Lorain
County Sheriff ’s Office had previously
released surveillance video of the incident.
[See: PLN, Jan. 2013, p.50]. Tayor was
charged with one count of deprivation of
rights under color of law.
Ohio: Death row prisoner Billy Slagle’s
August 4, 2013 suicide was accomplished
with an “item of permissible property,” according to Department of Rehabilitation
and Correction spokeswoman JoEllen
Smith. Slagle killed himself hours before
he was scheduled to be placed on 24-hour
suicide watch in advance of his execution for the 1988 stabbing death of Mari
Anne Pope during a burglary. Officials at
the Chillicothe Correctional Institution
would not say what the item was and did
not provide details regarding the manner
of Slagle’s death.
Ohio: According to Richland County
Assistant Prosecutor Brent Robinson, on
August 12, 2013, Robert A. Picklesimer, 54,
a food service supervisor at the Mansfield
Correctional Institution, was indicted on
one count of sexual battery, one count of
theft in office and two counts of bribery.
“He was permitting these inmates to have

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Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 85 of 90

food in exchange for allowing him to touch
them in sexual ways,” Robinson stated.
Oklahoma: Prison officials said Donald Lee Grayson, 61, gained access to a
laptop from his prison cell and filed false
tax returns using the names and bank accounts of fellow prisoners. In August 2013,
Grayson received concurrent sentences of
18 months for each of three counts of filing
false returns, and will be required to pay
restitution. A guard discovered the scheme
after noticing a power cord in Grayson’s cell.
Investigators said he received fraudulent tax
refunds in the amount of $14,226.
Oklahoma: A lawsuit filed on August 13, 2013 claims that prisoner Philip
Thomas Burris, Jr. was forced to have sex
with female prison employee Kasey McDonald “50 to 100” times at the Joseph
Harp Correctional Center. McDonald
was arrested and charged with engaging
in sexual misconduct – the fifth such case
involving a Joseph Harp employee since
2008. The lawsuit also alleges that Burris’
former case manager supplied him with
cell phones and marijuana. “These things
happen,” said Corrections Department
spokesman Jerry Massie.
Oklahoma: Mark Gregory Valadez
faces additional charges after he was

booked into the Oklahoma County jail on
September 1, 2013 with a loaded derringer concealed in his rectum. He managed
to avoid a metal detector and was only
caught after bragging to other prisoners
about smuggling the weapon into the
facility. Valadez was hospitalized to have
the pistol removed and now faces felony
charges of possession of contraband in a
penal institution.
Pennsylvania: On September 12,
2013, a jury acquitted former veteran
federal prison guard Lamont Lucas of
having sex with a female prisoner after
the defense argued that the prisoner was a
habitual liar. [See: PLN, Sept. 2013, p.17].
The jury rejected the prisoner’s story and
was presented with powerful character
evidence in support of Lucas. An attorney
for the defense said Lucas, who had been
suspended without pay following the accusations, was unlikely to return to his job
with the Bureau of Prisons.
Tennessee: A dietitian at the Unicoi
County Jail was arrested on September 6,
2013 and charged with introducing drugs
into a penal facility. Faith A. Smith allegedly met with a prisoner’s family member
who provided the drugs that she brought
into the jail.

Texas: Justin P. MacDonald, 29, was
in the Dallas County Jail on a probation
violation and just wanted some fresh air.
He walked out the front doors of the facility
while taking out the trash on July 26, 2013,
which prompted a lockdown. MacDonald
was spotted walking outside in jail-issued
pants with no shirt, and quickly captured.
He now faces a felony escape charge. “The
investigation is ongoing to determine how
the inmate made it to the outside of the
facility,” said sheriff ’s department spokesman Raul Reyna.
Tunisia: On September 2, 2013, police
and soldiers searched for 49 prisoners who
had escaped from a facility in the southern
coastal town of Gabes. Colonel Hicham
Ouni, security director for Tunisia’s prisons,
told the Associated Press that the prisoners
were mostly young and none were incarcerated for terrorism-related crimes. Tunisia’s
prison system is at more than triple capacity,
with around 22,000 prisoners.
Utah: Christopher Stein Epperson, a
former Wasatch County sheriff ’s deputy,
was charged with taking advantage of his
position as a jail guard to physically abuse
two female prisoners. [See: PLN, April
2012, p.1]. He pleaded guilty to the federal
charges on August 29, 2013, and faces up to

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Prison Legal News

59

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 86 of 90
News In Brief (cont.)
10 years in prison for each of two counts of
deprivation of rights under color of law.
Virginia: Former Augusta Correctional Center guard Brian Peduto was
three months into serving a suspended
sentence for attempting to have sex with
a 12-year-old girl when he began having a
sexual relationship with a minor. He was not
spared prison the second time, and received
a three-year sentence on August 26, 2013.
Peduto apologized before he was sentenced,

saying, “It’s time for me to stay away from
girls in general.”
Washington: A riot broke out at the
Pend Oreille County Jail on July 7, 2013,
and ten prisoners now face additional
charges as a result. Two cells were flooded
during the disturbance, which caused
water damage in an adjoining courtroom.
Although no serious injuries were reported,
one prisoner allegedly attacked a guard,
another intimidated a witness and there
were two prisoner-on-prisoner assaults.
The jail was locked down for several hours
following the riot.

Washington: Sarah Brooks, a prison
therapist specializing in sexual deviancy
treatment, was charged with engaging in
sexual activity with a sex offender. [See:
PLN, Sept. 2013, p.17]. Brooks pleaded
guilty on August 20, 2013 to a lesser offense and was sentenced to 24 months on
probation. As part of the plea deal she must
also complete alcohol treatment and mental
health counseling. According to prosecutors, Brooks developed a sexual relationship
with a male prisoner; however, he did not
want to press charges, which resulted in the
reduced charge and plea deal.

Criminal Justice Resources
ACLU National Prison Project

The Exoneration Project

Just Detention International

Handles state and federal conditions of confinement claims affecting large numbers of prisoners.
Publishes the NPP Journal (available online at:
www.aclu.org/national-prison-project-journalfall-2011) and the Prisoners’ Assistance Directory
(write for more information). Contact: ACLU NPP,
915 15th St. NW, 7th Fl., Washington, DC 20005
(202) 393-4930. www.aclu.org/prisons

The Exoneration Project is a non-profit organization dedicated to working to free prisoners who
were wrongfully convicted. The Project represents
innocent individuals in post-conviction legal
proceedings; typical cases involve DNA testing,
coerced confessions, police misconduct, the use of
faulty evidence, junk science and faulty eyewitness
testimony, and ineffective assistance of counsel
claims. Contact: The Exoneration Project, 312 North
May Street, Suite 100, Chicago, Illinois 60607 (312)
789-4955. www.exonerationproject.org

Formerly Stop Prisoner Rape, JDI seeks to end
sexual violence against prisoners. Provides
counseling resources for imprisoned and released
rape survivors and activists for almost every state.
Contact: JDI, 3325 Wilshire Blvd. #340, Los Angeles,
CA 90010 (213) 384-1400. www.justdetention.org

Amnesty International
Compiles information about prisoner torture,
beatings, rape, etc. to include in reports about
U.S. prison conditions; also works on death
penalty issues. Contact: Amnesty International, 5
Penn Plaza, New York NY 10001 (212) 807-8400.
www.amnestyusa.org

Center for Health Justice
Formerly CorrectHELP. Provides information
related to HIV in prison – contact them if you are
not receiving proper HIV medication or are denied
access to programs due to HIV status. Contact: CHJ,
900 Avila Street, Suite 102, Los Angeles, CA 90012.
HIV Hotline: (214) 229-0979 (collect calls from
prisoners OK). www.centerforhealthjustice.org

Centurion Ministries
Works to exonerate the wrongfully convicted, in
both cases involving DNA evidence and those that
do not. Centurion only takes 1-2 new cases a year
involving actual innocence. They do not consider
accidental death or self-defense murder cases, he
said/she said rape cases, or child abuse or child sex
abuse cases unless there is physical evidence. All
case inquiries must be from the prisoner involved,
in writing. Contact: Centurion Ministries, 221
Witherspoon Street, Princeton, NJ 08542 (609)
921-0334. www.centurionministries.org

Critical Resistance
Seeks to build an international movement to
abolish the Prison Industrial Complex, with offices in Florida, California, New York, Texas and
Louisiana. Publishes The Abolitionist newsletter.
Contact: Critical Resistance, 1904 Franklin Street
#504, Oakland, CA 94612 (510) 444-0484. www.
criticalresistance.org

March 2014

Family & Corrections Network
Primarily provides online resources for families
of prisoners related to parenting, children of
prisoners, prison visitation, mothers and fathers in
prison, etc. Contact: F&CN, 93 Old York Road, Suite
1 #510, Jenkintown, PA 19046 (215) 576-1110.
www.fcnetwork.org

FAMM
FAMM (Families Against Mandatory Minimums)
publishes the FAMMGram three times a year,
which includes information about injustices resulting from mandatory minimum laws with an emphasis on federal laws. Recommended donation
of $10 for a subscription. Contact: FAMM, 1612 K
Street NW #700, Washington, DC 20006 (202) 8226700). www.famm.org

The Fortune Society
Provides post-release services and programs for
prisoners in the New York City area and occasionally publishes Fortune News, a free publication for
prisoners that deals with criminal justice issues,
primarily in New York. Contact: The Fortune
Society, 29-76 Northern Blvd., Long Island City, NY
11101 (212) 691-7554. www.fortunesociety.org

Innocence Project
Provides advocacy for wrongly convicted prisoners whose cases involve DNA evidence and are at
the post-conviction appeal stage. Maintains an
online list of state-by-state innocence projects.
Contact: Innocence Project, 40 Worth St., Suite
701, New York, NY 10013 (212) 364-5340. www.
innocenceproject.org

60

Justice Denied
Although no longer publishing a print magazine,
Justice Denied continues to provide the most
comprehensive coverage of wrongful convictions
and how and why they occur. Their content is
available online, and includes all back issues of
the Justice Denied magazine and a database of
more than 3,000 wrongly convicted people. Contact: Justice Denied, P.O. Box 68911, Seattle, WA
98168 (206) 335-4254. www.justicedenied.org

National CURE
Citizens United for Rehabilitation of Errants (CURE)
is a national organization with state and special
interest chapters that advocates for rehabilitative
opportunities for prisoners and less reliance on
incarceration. Publishes the CURE Newsletter. $2 annual membership for prisoners. Contact: CURE, P.O.
Box 2310, National Capitol Station, Washington, DC
20013 (202) 789-2126. www.curenational.org

November Coalition
Publishes the Razor Wire, a bi-annual newsletter
that reports on drug war-related issues, releasing
prisoners of the drug war and restoring civil
rights. A subscription is $10 for prisoners and $30
for non-prisoners. Contact: November Coalition,
282 West Astor, Colville, WA 99114 (509) 6841550. www.november.org

Prison Activist Resource Center
PARC is a prison abolitionist group committed to
exposing and challenging all forms of institutionalized racism, sexism, able-ism, heterosexism and
classism, specifically within the Prison Industrial
Complex. PARC produces a free resource directory for prisoners, and supports activists working
to expose and end the abuses of the Prison
Industrial Complex and mass incarceration.
Contact: PARC, P.O. Box 70447, Oakland, CA 94612
(510) 893-4648. www.prisonactivist.org

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 87 of 90

Prison Legal News Book Store
Fill in the boxes next to each book you want to order, indicating the quantity and price. Enter the Total on the Order Form on the next page.
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Prison Profiteers, edited by Paul Wright and Tara Herivel, 323 pages.
$24.95. This is the third book in a series of Prison Legal News anthologies that examines the reality of mass imprisonment in America. Prison
Profiteers is unique from other books because it exposes and discusses
who profits and benefits from mass imprisonment, rather
than who is harmed by it and how.
1063
With Liberty for Some: 500 Years of Imprisonment in America, by Scott Christianson, Northeastern University Press, 372 pages. $18.95. The best overall history of
the American prison system from 1492 through the 20th Century. A must-read for
understanding how little things have changed in U.S. prisons over
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1026
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Herivel and Paul Wright, 332 pages. $35.95. PLN’s second anthology
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1041
The Celling of America, An Inside Look at the U.S. Prison Industry,
edited by Daniel Burton Rose, Dan Pens and Paul Wright, 264 pages.
$22.95. PLN’s first anthology presents a detailed “inside”
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1001
Prisoners’ Guerrilla Handbook to Correspondence Programs in the
U.S. and Canada, updated 3rd ed. by Jon Marc Taylor, Ph.D. and edited
by Susan Schwartzkopf, PLN Publishing, 221 pages. $49.95. Written by
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information and descriptions of high school, vocational, paralegal and college courses by mail.
1071

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Protecting Your Health and Safety, by Robert E. Toone, Southern
Poverty Law Center, 325 pages. $10.00. This book explains basic rights
that prisoners have in a jail or prison in the U.S. It deals mainly with
rights related to health and safety, such as communicable diseases and
abuse by prison officials; it also explains how to enforce
your rights, including through litigation.
1060
Spanish-English/English-Spanish Dictionary, 2nd ed. Random House.
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from A to Z; includes Western Hemisphere usage.
1034a
Writing to Win: The Legal Writer, by Steven D. Stark, Broadway Books/Random
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1035
Actual Innocence: When Justice Goes Wrong and How to Make it Right,
updated paperback ed., by Barry Scheck, Peter Neufeld and Jim Dwyer; 403 pages.
$16.00. Describes how criminal defendants are wrongly convicted. Explains DNA
testing and how it works to free the innocent. Devastating critique
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1030
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has updated geographical and biographical entries. Includes
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1033
Everyday Letters for Busy People, by Debra Hart May, 287 pages.
$18.99. Hundreds of sample letters that can be adapted for most any purpose, including letters to government agencies and officials.
Has numerous tips for writing effective letters.
1048

The Criminal Law Handbook: Know Your Rights, Survive the System, by
Attorneys Paul Bergman & Sara J. Berman-Barrett, Nolo Press, 608 pages.
$39.99. Explains what happens in a criminal case from being arrested to sentencing, and what your rights are at each stage of the process. Uses an
easy to understand question-and-answer format.
1038

Roget’s Thesaurus, 717 pages. $8.95. Helps you find the right word for
what you want to say. 11,000 words listed alphabetically with over 200,000
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1045

Represent Yourself in Court: How to Prepare & Try a Winning Case, by
Attorneys Paul Bergman & Sara J. Berman-Barrett, Nolo Press, 528 pages.
$39.99. Breaks down the civil trial process in easy-to-understand steps so you
can effectively represent yourself in court. The authors explain
what to say in court, how to say it, etc.
1037

Beyond Bars, Rejoining Society After Prison, by Jeffrey Ian Ross, Ph.D.
and Stephen C. Richards, Ph.D., Alpha, 240 pages. $14.95. Beyond Bars is a
practical and comprehensive guide for ex-convicts and their families for
managing successful re-entry into the community, and includes information
about budgets, job searches, family issues, preparing for
release while still incarcerated, and more.
1080

Law Dictionary, Random House Webster’s, 525 pages. $19.95. Comprehensive
up-to-date law dictionary explains more than 8,500 legal terms.
Covers civil, criminal, commercial and international law.
1036
The Blue Book of Grammar and Punctuation, by Jane Straus, 110 pages. $14.95. A guide to grammar and punctuation by an educator with experience teaching English to prisoners. 1046
Legal Research: How to Find and Understand the Law, by Stephen Elias
and Susan Levinkind, 568 pages. $49.99. Comprehensive and easy to understand guide on researching the law. Explains case law, statutes
and digests, etc. Includes practice exercises.
1059
Deposition Handbook, by Paul Bergman and Albert Moore, Nolo Press, 352
pages. $34.99. How-to handbook for anyone who conducts a
deposition or is going to be deposed.
1054
Criminal Law in a Nutshell, by Arnold H. Loewy, 5th edition, 387 pages.
$43.95. Provides an overview of criminal law, including punishment, specific crimes, defenses & burden of proof. 1086

Jailhouse Lawyers: Prisoners Defending Prisoners v. the U.S.A., by
Mumia Abu Jamal, City Lights Publishers, 280 pages. $16.95. In Jailhouse
Lawyers, Prison Legal News columnist, award-winning journalist and deathrow prisoner Mumia Abu-Jamal presents the stories and reflections of
fellow prisoners-turned-advocates who have learned to use
the court system to represent other prisoners.
1073
The Habeas Citebook: Ineffective Assistance of Counsel, by Brandon
Sample, PLN Publishing, 200 pages. $49.95. This is PLN’s second published book, written by federal prisoner Brandon Sample, which covers
ineffective assistance of counsel issues in federal habeas
petitions. Includes hundreds of case citations!
1078
Complete GED Preparation, by Steck-Vaughn, 922 pages. $24.99. This
useful handbook contains over 2,000 GED-style questions to thoroughly
prepare students for taking the GED test. It offers complete coverage of
the revised GED test with new testing information, instructions and a practice test.
1099

* ALL BOOKS SOLD BY PLN ARE SOFTCOVER / PAPERBACK *
Prison Legal News

61

March 2014

Case 2:15-cv-02245-BSB Document 1-1 Filed 11/06/15 Page 88 of 90
Hepatitis and Liver Disease: What You Need to Know, by Melissa Palmer,
MD, 457 pages. $17.95. Describes symptoms & treatments of hepatitis B & C and
other liver diseases. Includes medications to avoid, what diet to follow
and exercises to perform, plus a bibliography.
1031

Our Bodies, Ourselves, by The Boston Women’s Health Book Collective,
944 pages. $26.00. This book about women’s health and sexuality has been
called “America’s best-selling book on all aspects of women’s
health,” and is a great resource for women of all ages. 1082

Arrested: What to Do When Your Loved One’s in Jail, by Wes
Denham, 240 pages. $16.95. Whether a defendant is charged with misdemeanor disorderly conduct or first-degree murder, this is an indispensable
guide for those who want to support family members, partners or friends facing criminal charges.
1084

Arrest-Proof Yourself, by Dale Carson and Wes Denham, 288 pages.
$14.95. This essential “how not to” guide written by an ex-cop explains
how to act and what to say when confronted by the police to minimize the
chances of being arrested and avoid additional charges. Includes information on basic tricks that police use to get people to incriminate themselves.
1083

Prisoners’ Self-Help Litigation Manual, updated 4th ed. (2010), by John
Boston and Daniel Manville, Oxford Univ. Press, 960 pages. $39.95. The
premiere, must-have “Bible” of prison litigation for current and aspiring
jail-house lawyers. If you plan to litigate a prison or jail civil
suit, this book is a must-have. Highly recommended!
1077
How to Win Your Personal Injury Claim, by Atty. Joseph Matthews, 7th
edition, NOLO Press, 304 pages. $34.99. While not specifically for prisonrelated personal injury cases, this book provides comprehensive information on how to handle personal injury and property damage claims arising from accidents.
1075
Sue the Doctor and Win! Victim’s Guide to Secrets of Malpractice
Lawsuits, by Lewis Laska, 336 pages. $39.95. Written for victims of medical malpractice/neglect, to prepare for litigation. Note that this book addresses medical malpractice claims and issues in general, not
specifically related to prisoners.
1079

Nolo’s Plain-English Law Dictionary, by Gerald N. Hill and Kathleen
T. Hill, 496 pages. $29.99. Find terms you can use to understand and access
the law. Contains 3,800 easy-to-read definitions for common
(and not so common) legal terms.
3001
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Wayne R. LaFave, 7th edition, 603 pages. $43.95. Intended for use by law
students, this is a succinct analysis of constitutional standards
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Circle the index(es) you are ordering: 1990-1995, 1996-1998,
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Prison Legal News

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Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 1 of 67

EXHIBIT C

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 2 of 67
~ AR IZONA DEPARTMENT OF CORRECTI ONS

~

Notice of Result-Publication Review

Review Date

Name Of Publication

ISBN or VoliN

Publication Date

5/9/2014

PRISON LEGAL NEWS

V. 25 N. 3

MARCH 2014

The Office of Publication Review has reviewed the above-mentioned individual publication and has determined that the individual publication will be:

D

[8J

Allowed

Excluded

Per DO 914.08 Inmate Mail-Unauthorized Publications and Material,itis determined that this individual publication is excluded .
For th e com plete ex clusion ex planation s. refer to pO 914 di rectly . The "X" indicates the specific viol ation( s),

X

Policy #

Description

X

1.1.1

RiotslWork
Stoppages/Resistance

1.1.2

Sending/Receiving

X

Contraband

1.1.3

Street Gang/STG

1.1.4

Locks/Security Devices

1.1 .5

Hands, Feet, or Head as
Weapons/Fighting
T echn iq ues/Self-Defense

1.1 .6

Drug Promotion/Manufacture
or Cultivation of Drugs,
Narcotics, Poisons/Brewing
Alcohol

X

Policy #

Desc ription

1.1 .12

Policy #

Description

Survival Skills

1.1.24

Violation of Policy/Law

1.1.13

Gambling

1.1 .25

ScenUCanine Search

1.1.14

Tatoo/Skin Modification

1.1.26

Making of Incense

1.1.15

Cipher/Code

1.1.27

Sale/Manufacturel
Concealment of Tools

1.1.16

Promote Violence

2.2

Advertisement Promotion

1.1 .17

Graphic Violence

914.07

Sexually Explicit Material

1.1 .18

Unacceptable Sexual or
Hostile Behaviors

1.1.19

Intelligance/lnvestigative
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1.1.7

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1.1 .20

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1.1.21

Medical Publications

1.1 .8

Sale/Manufacture/
Concealment of Weapons

1.1.22

Health/Fire Risk

1.1.9

Computer/Electronics/
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1.1.23

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Idendity Theft

1.1.11

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X

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• Refer to the revised DO 914, Inmate Mail for information on Second Reviews as the policy has changed to include two separate
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OTHER EXCLUSION :

JU . I(CJ:l·( ON1CALLV ~

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tile

914-6
9/1/11

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 3 of 67

EXHIBIT D

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 4 of 67

Prison Legal News
VOL. 25 No. 4

Dedicated to Protecting Human Rights

ISSN 1075-7678

April 2014

An Interview with Noam Chomsky on
Criminal Justice and Human Rights

O

n February 5, 2014, P rison Legal
News editor Paul Wright interviewed
Noam Chomsky, 75, at his home in Lexington, Massachusetts. Professor Chomsky
is the foremost dissident intellectual in the
United States, and for decades has been
a prominent critic of U.S. foreign policy,
human rights abuses, imperialism and the
media’s facilitation of same. He is also one
of the world’s eminent linguists and has
been a professor of linguistics at the Massachusetts Institute of Technology since
1955. He was arrested and jailed for antiwar activism in the 1960s.
The author of dozens of books on
politics, media analysis, foreign policy and
other issues, Professor Chomsky was also
one of PLN’s earliest subscribers and has
corresponded with Paul on various topics

since the early 1990s. However, in his books,
essays and interviews, Professor Chomsky
has rarely addressed human rights abuses in
the United States with respect to policing
and prisons – until now.
While Professor Chomsky agreed to be
interviewed by PLN, scheduling was difficult due to his extensive travel and speaking
schedule. It turned out that the day of the
interview was also the day a massive snowstorm hit Boston, and he did not come into
work. He graciously agreed to conduct the
interview at his home, and Paul and PLN
advertising director Susan Schwartzkopf
made an adventurous cab ride through the
snowstorm to his house.
We extend our thanks to Professor
Chomsky for this interview and to his
assistant, Beverly Stohl, for making the
necessary arrangements.

Inside

•••

From the Editor

16

Prison Food Allergy Policies

18

$15 Million Settlement in NM

20

Recidivism & Family Communication

24

Arkansas DOC Suing Prisoners

30

TASERs May Cause Heart Attacks

34

Mass Incarceration by the Numbers

36

GPS Monitoring Problems in LA

40

Book Review: The Redbook

43

PLN Awarded Fees, Costs in OR Suit

44

Prisoner Organ Transplants, Donations

52

Excessive Force Claims in Oregon

54

News in Brief

56

PAUL WRIGHT: I think one of the
things that’s interesting is I’ve been reading your work since I was in high school,
and I would say that for at least 30 years
now, 30-plus years, I’ve been reading your
work and all the interviews that you’ve
done, and very few people ever ask you
about domestic issues.
NOAM CHOMSKY: Really?
PW: Yes. About domestic stuff, in
terms of ... you know, they ask you about
human rights in other countries, but not
about human rights in this country. I
think you did one interview in the mid90s which we reprinted in Prison Legal
News.
NC: There are many. I don’t know what
happens to them. There are so many, I can’t
keep track. There’s several a day.
PW: Okay. My first question, Professor Chomsky, is the United States

Noam Chomsky
talks about human rights abroad but not
domestically. Why is that? Why aren’t
Americans deemed to have human rights
while people overseas are?
NC: Well, first of all, it’s not true that
people overseas are. We talk about human
rights in enemy states, but we don’t talk
about them in our own client states. So, for
example, compare, say, Eastern Europe and
Latin America. Eastern Europe was Soviet
domain in the post-Stalin, post-Second
World War period, up until 1990. Eastern
Europe was dominated by the Soviet Union.
And there’s an enormous amount of discussion about human rights in Eastern Europe.
Human Rights Watch, the organization,
pretty much grew out of Helsinki Watch,
which was concerned specifically with
Eastern Europe.
Well, what about the U.S. domains
during the same period? Say, roughly 1960

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 5 of 67

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2

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 6 of 67

Prison Legal News

a publication of the
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www.humanrightsdefensecenter.org
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Prison Legal News

Noam Chomsky Interview (cont.)
to 1990? You take a look at the scholarly
literature, it’s quite straight. Human rights
in the U.S. domains of Latin America were
under vastly greater attack than in Eastern
Europe. It’s true whether you look at the
murders, torture, incarceration, slaughters
the U.S. was carrying out, including a
major war against the Church. The story
after Vatican II, really, there were lots of
religious martyrs.
So in 1989, the Berlin Wall falls. A lot
of, you know, justified excitement; there’s
liberation in Eastern Europe. And what
happens in Central America at that time?
Well, shortly after the Berlin Wall fell, a
Salvadoran brigade, the Atlacatl Brigade,
U.S.-trained, U.S.-armed, f resh f rom
renewed training at the John F. Kennedy
School of Counter-Insurgency Warfare,
under the orders of the high command,
broke into the university and murdered six
leading Jesuit intellectuals, leading Latin
American intellectuals. Anything like that
happen in Eastern Europe? I mean, people
were, you know, Václav Havel was in prison,
but he didn’t have his head blown off. And
this is the record all the way through. Is it
discussed? No.
PW: And I think it’s interesting that
you use the example of Eastern Europe
because we can note that since the collapse of the Soviet Union and Eastern
bloc countries, I think it’s no coincidence
that we now learn that Eastern European
countries, like Poland, Lithuania and
elsewhere, are leading rendition states
for the United States to set up its secret
torture prisons where people can be
kidnapped and tortured with impunity,
which, arguably, did not happen under
the Soviet Union.
NC: That’s very interesting, in fact, because there was a study by the Open Society
Forum of countries that had been involved
in the U.S. rendition programs, and these,
as you say, are kind of at the extreme end
of commitment to torture. Taking suspects
and sending them to countries like Syria
or Egypt or Libya, where you know they’re
going to be tortured. Who participated?
Well, of course, European countries mostly
participated. The former Eastern European
domains and Soviet Union did. The Middle
East, of course, participated. That’s where
they were sending them to be tortured. One

3

region of the world didn’t participate.
PW: Latin America.
NC: Latin America. What happened
is in the past 10 years, roughly 10-15 years,
Latin America has pretty much extricated
itself from U.S. domination. Not entirely,
but substantially. This is a dramatic example
of it. It’s kind of doubly interesting because
during the period when Latin America
was pretty much controlled by the United
States, it was one of the world centers of
torture. And now that it’s somewhat, pretty
much liberated itself, it didn’t participate
in the massive U.S. torture programs. And
actually it shows up in other ways, too.
The U.N. Economic Commission for
Latin America [recently] published a report
on poverty reduction in Latin America. I
don’t think it was reported here. But it’s
striking. What it basically shows is the
usual. The more countries that were free of
U.S. control, free to carry out reforms, the
more they carried out extensive poverty
reduction. So Venezuela, Brazil, other countries had a very sharp reduction in poverty.
You get closer to home, say, Guatemala
and Honduras, poverty remains extreme.
Now the interesting case is Mexico. A
rich country, relatively speaking, under
the NAFTA umbrella, and practically the
only country where poverty substantially
increased last year.
These are very systematic properties.
But are they discussed? No. So it’s not just
human rights in the United States that
aren’t discussed, it’s in U.S. domains even
when it is really dramatic. Like, for example,
Central America.
As you know, the huge increase in
incarceration in the United States was
mostly since around 1980, and during those
years Central America was subjected to
really massive atrocities, all backed by the
United States or carried out by the United
States. Hundreds of thousands of people
slaughtered. All kinds of torture. The murder atrocities. I mentioned one case, but it’s
vastly greater. Now you take a look at, say,
immigration today; there’s a big immigration problem in the United States. So, for
example, people are coming to the United
States illegally, undocumented aliens from
the Mayan highlands in Guatemala. Why?
Because they were practically wiped out in
the early ‘80s by a really genocidal attack
backed by President Reagan, who assured
us that the general in charge was a nice
guy committed to democracy and so on. So
April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 7 of 67
Noam Chomsky Interview (cont.)
now the people in the areas that we helped
destroy are fleeing for refuge to the United
States, and President Obama has sent back
[deported] two million, not just from there
but from other places. None of this gets
discussed except kind of at the margins.
PW: One of the things, too, is what I
think of as a discussion of human rights
and slaughters, and I think one of the
things that’s interesting with Guantanamo seems to be almost a quantitative
departure. For over 60 years the United
States ran a very successful counterinsurgency program around the world
which consisted of kidnapping people,
torturing whatever information they
had out of them, murdering them and
disappearing the bodies. They did this
very successfully in the Philippines and
Central America, as you know, with less
success in Southeast Asia.
NC: Oh, there was plenty of success
in Southeast Asia. Tiger cages in South
Vietnam were major torture chambers.
PW: Sure. Exactly. But at some point,
one of the things I find interesting is that
with Guantanamo they’ve publicly acknowledged capturing people, though not
always, hence the secret rendition prisons. But at least in Guantanamo they’re
publicly acknowledging that they’ve
kidnapped people. They’ve pretty much
publicly acknowledged that they tortured
them extensively. And continue to torture
them. But they aren’t killing them and

dumping the bodies, as they did for decades before that. Do you have any idea
why that changed?
NC: Well, there is a difference. Some of
the major scholarly work done on torture is
done by Alfred McCoy, a historian.
PW: Yes. We’ve published his work.
NC: He’s pointed out that there is a
difference. The U.S. used to delegate torture
to subsidiaries. It was sometimes carried
out by U.S. operatives, but usually it was
kind of delegated. The last couple of years
it’s been carried out by the U.S. It’s pretty
much the same thing, as you say, but there’s
a difference in direct participation. And in
fact, he also points out that you could make
a case that George Bush’s resort to extensive
torture is not illegal by U.S. law.
PW: No. It isn’t.
NC: The U.S. never really signed or
ratified the torture convention. There is a
U.N. torture convention which the U.S.
technically ratified, but after rewriting it
to exclude the methods that are used by
the CIA.
PW: Actually, the second question
I was going to ask you was that the U.S.
routinely signs international treaties on
issues like torture and prisoners’ rights.
Then it holds there’s no private causes of
action for them and, of course, as you’re
noting right now, it doesn’t fully ratify
them or creates critical exemptions that
prevent enforcement. So my question is,
why sign them?
NC: Well, there are two steps. Signing and ratifying. Ratifying is what counts,
otherwise nothing happens. But the U.S.

has ratified very few international conventions. I mean, even ones like the rights of a
child and things like that; I think the U.S.
and Somalia are the only countries that
didn’t ratify it. And in the very rare cases
where the U.S. ratifies a convention, there’s
a reservation attached. It’s called “non selfexecuting,” which means, “inapplicable to
the United States.” So, for example, the U.S.
did finally sign the genocide convention
after 40 years, but with a condition: “not
applicable to the United States.”
That’s actually been upheld by the
World Court. Because under the Court
rules, a country can be prosecuted only if
it’s accepted the jurisdiction of the Court.
When Yugoslavia brought a case against
NATO after the bombing in 1999, the
United States withdrew from the case. And
the Court accepted that because one of the
charges was genocide and the U.S. is not
susceptible to charges of genocide.
And this runs right through the record.
In fact, even in 1946, when the U.S. pretty
much led the establishment of the International Court of Justice, the World Court,
it added a condition that the U.S. is not
subject to any charges under international
treaties such as the OAS Charter and the
U.N. Charter. And the foundation of the
U.N. Charter, of course, bars threats or use
of force in international affairs. But the U.S.
is not susceptible to that rule. And, in fact,
that’s kind of tacitly understood. So, for
example, President Obama, high officials
and others are constantly threatening force
against Iran. That’s what it means to say “All
options are open.”

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4

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 8 of 67

PW: Sure. And every other country
in the world, too.
NC: Well, they can do what they want,
but if the U.S. were brought to the Court
under that charge, they would appeal that
it’s not applicable. And, in fact, that was
done. Nicaragua brought the United States
to the World Court.
PW: For the mining of its harbors.
NC: Well, that was what the final
charge was, because the main charges were
thrown out by the World Court since they
were charges of violations of the Organization of American States treaty against
intervention. But the Court pointed out
you can’t charge [under the OAS treaty].
The U.S. is free from that.
PW: And, obviously, I think for
Prison Legal News readers sitting in prison
the idea that you’re only susceptible to a
criminal court’s jurisdiction if you agree
to it sounds like a pretty good deal.
NC: A pretty good deal. But, of course,
if we go back to Guantanamo, the torture
at Guantanamo was horrible. But it’s kind
of standard in American prisons.
PW: Actually, it is. When Abu Ghraib
first happened, one of the things I’ve no-

Prison Legal News

ticed over the many years of publishing
Prison Legal News is that human rights
abuses that occur overseas will get a lot
of American media attention. But when
the same abuse occurs in American prisons, being done by American officials to
Americans, it gets very little attention or
is largely ignored.
NC: It gets nothing. Take isolation. The
U.N. and other authorities consider that
torture. And, in fact, as is known, a short
amount of [solitary confinement] drives
people completely crazy.
PW: And we’ve done this for several
hundred years.
NC: Yes. But that’s standard in America, in American prisons. Almost total
isolation for prisoners if they want to, and
other treatment, too. There’s a general
principle that if we carry out a crime, it
doesn’t happen.
PW: Or it’s not a crime.
NC: Either it’s not a crime, or it doesn’t
happen. It literally doesn’t happen. And
that’s true of the media. It’s largely true of
scholarship.
PW: Do you believe that Americans
have fewer or more rights vis-à-vis state

5

power than the citizens of other industrialized countries?
NC: We do, in fact. It’s an unusually
free country. Despite all of these crimes,
which are real, it is nevertheless quite a
free country for people who are relatively
privileged. Not if you’re a black kid in the
slums of Boston. But if you’re, say, living
where we’re talking now, you’ve got lots
of rights. In many respects, more so than
other countries. For example, freedom of
speech, which is after all a crucial right, is
protected in the United States to an extent
beyond maybe any other country. Certainly
other western countries.
PW: I find it ironic that you say that
because our organization is involved right
now, for example, ... we’re going to trial
in Georgia to protect our right to send
prisoners letters where the jail bans all
books and magazines. They only allow
prisoners to send and receive postcards.
And it’s ironic in the age of the Internet,
we’re defending a 15th century means of
communication.
NC: Yes, well, life is complex. Both
things are true. The U.S. has set formally
high standards for protection of freedom

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 9 of 67
Noam Chomsky Interview (cont.)
of speech, and they are pretty well implemented to the extent that you have a degree
of privilege. Prisoners in Georgia are down
at the opposite end. They don’t gain the
rights.
PW: Okay. The past 40 years have
seen a massive increase in the U.S. prison
population. The U.S. now imprisons
more people than any other country in
the world ever has, even including, you
know, the Soviet Union at the height of
the collectivization in the 1930s, even
Nazi Germany. In your view, what has led
to the rise of mass imprisonment in the
United States?
NC: Primarily the drug war. Ronald
Reagan, who was an extreme racist, barely
concealed it under his administration. There
had been a drug war but it was reconstituted
and restructured so it became basically a
race war. Take a look at the procedures of
the drug war beginning from police actions.
Who do you arrest? All the way through the
prison system, the sentencing system, even
to the post-release system.
And, here, Clinton was involved.
Taking away rights of former prisoners,
say, to live in public housing and so on.
The lack of any kind of rehabilitation.
The impossibility of getting back into
your own community, into a job, essentially it demands recidivism. So there’s a
system in place, mostly directed against
black males – although by now it’s also
African-American women, Hispanics and
so on – but it’s overwhelmingly been black
males, which essentially criminalizes black
life. And it has led to a huge increase in
incarceration and essentially no way out.

It started with the Reagan years and goes
on right up to the present.
PW: And what do you think is the
basis for that?
NC: Well, it’s kind of striking. First
of all, it has a historical parallel which is
worth thinking about. After the Civil War
there were Constitutional amendments that
freed slaves. And there was a brief period,
roughly ten years, in which freed slaves had
formal rights.
PW: Right, Reconstruction.
NC: The Reconstruction period. And
it was not insignificant, like you had black
legislators and so on. After the Reconstruction period, roughly a decade, there was a
north-south compact which effectively
permitted the former slave states to do
essentially what they liked, and what they
did was they criminalized black life. So, for
example, if a black man was standing on
a corner he could be accused of vagrancy
and charged some fee which he couldn’t
pay, so he went to jail. If he was looking
at a white woman the wrong way, somebody claimed attempted rape, you know.
A bigger fine. Pretty soon they had a very
large part of the black population – black
male, mainly – in jail. And they became a
slave labor force.
A large part of the American Industrial
Revolution was based on slave labor in the
post-Civil War period. And for U.S. steel
and mining corporations and others, it was a
wonderful labor force. I mean, much better
than slavery. Slavery is a capital investment;
you’ve got to keep your slave alive. [But]
you can pick them up from the state system
for nothing. They’re docile. They’re obedient. They can’t unionize. They can’t ask for
anything. I mean, we’re familiar with the
chain gangs, but that’s only the agricultural
aspect of it. There was also an industrial as-

pect. This went on almost until the Second
World War when there was a demand for
free labor for the war industry. And we’re
essentially reconstituting it.
PW: Well, we’ve reported extensively
on prison slavery in both the former, the
older types as well as the modern ones.
Prison Legal News has broken some of the
major stories on that, but I think one of
the bigger impacts now isn’t the prisoners working. It’s not the 5,000 prisoners
working for private corporations or the
60,000 working for prison industries. It’s
the 2.3 million who aren’t working at all.
That’s the impact on labor markets.
NC: Yes. But that’s the difference between now and the latter part of the 19th
century. The latter part of the 19th century
was a period of the Industrial Revolution.
Now it’s quite different. It’s industrial antirevolution.
PW: Or devolution.
NC: In fact, what’s really happening
is this is a superfluous population. A lot of
the working class is basically superfluous at
a time when multi-national corporations
can shift their production operations to
northern Mexico or Vietnam or somewhere.
And the black population has never escaped
the effects of slavery; I mean, the first slaves
came to the United States in the early 17th
century. By 1620, there were slaves. And the
effect of slavery has never been overcome,
in all sorts of ways, so the most superfluous
population is the black male population.
Fine. So we stick them in prison. Get rid
of them.
PW: One of the things, too, as you say
this, there’s obviously a number of black,
racial minority political organizations in
this country, and for the most part they’ve
all been pretty silent about criminal justice policies over the past 40 years. If you

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Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 10 of 67

look at a lot of the major organizations
like the NAACP, the Urban League,
folks like that, they’ve been pretty silent
on criminal justice issues, and today we
have President Obama, who obviously is
black. So is our Attorney General. And,
you know, while the Attorney General
has made some noises on criminal justice
issues, if you look at actual practices,
nothing’s really changed. So to an extent it
seems that the political black community
has largely been silent or supportive of
mass incarceration.
NC: Well, yes. They have their own
reasons. But there has been progress in civil
rights which for the more privileged sector
of the black community has meant more
rights. And while I don’t like to criticize
them – as I said, they have their own reasons – I can see why they might want to try
to expand the range of rights that they’ve
achieved and not take on issues that would
be unacceptable to the ruling groups.
Take a look at what happened to Martin Luther King, for example. It was very
striking. When you listen to the oratory
on Martin Luther King Day, it typically
ends with his “I have a dream” speech in

Washington, in 1963. But he didn’t stop
there. He went on to the north. He went
on to northern racism, to class issues,
urban problems in Chicago, then he was
assassinated supporting a public workers’
strike. That part of his life has been kind
of wiped out. In fact, he lost his northern
liberal popularity at that point. As long as
he was attacking racist sheriffs in Alabama
it was acceptable. When he started talking
about racist and class-based oppression in
the north, that was beyond the limits.
After all, when he was killed he was
on his way to organizing a party of the
poor. Not of the blacks. Of the poor. And
that’s beyond the pale when you do that.
So, how much this kind of understanding
resonates in the minds of black leadership
I don’t know, but they can’t be oblivious to
the phenomenon.
PW: And I guess one of the things,
too, it’s not just the black leadership of
civil organizations, but we pretty much
have a bipartisan consensus on mass
imprisonment. I think it’s like U.S. foreign policy, just like it has a bipartisan
consensus. And we can see that over the
past 40 years, to use your slavery analogy,

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looking back to recent modern history
of 1980 or so, no one law at a time but
thousands of laws every year around the
country have led to mass imprisonment.
There’s never been one sweeping law,
for example. But within mainstream
political parties there’s been no opposition to mass incarceration, whether it’s
mandatory minimums, draconian prison
conditions or whatever. And why is there,
for lack of a better term, mass consensus
within the political elite and within the
legislative bodies of this country on mass
imprisonment?
NC: We’re talking about a period of
kind of a major neoliberal assault on the
population which had all kinds of effects.
One of them is that both political parties
drifted to the right. There used to be a quip
that the United States is a one-party state,
the business party, which has two factions,
the Democrats and the Republicans. It’s
not really true anymore. It’s still a oneparty state, the business party. But it has
only one faction, and it’s not Democrats.
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Prison Legal News

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April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 11 of 67
Noam Chomsky Interview (cont.)
Meanwhile, the Republican Party
has just drifted off the spectrum. The
distinguished political conservative analyst, Norman Ornstein of the American
Enterprise Institute, speaking from the
right, describes the contemporary Republican Party as just what he calls a radical
insurgency which has abandoned any commitment to functioning as a parliamentary
party. It’s just dedicated to extreme wealth
and power. Period. And it’s had to kind of
mobilize popular forces of the kind that
hadn’t been politically mobilized much in
the past, which is why you see what you do.
But as both parties drifted to the right, yes,
you get the consensus on rightwing policies.
As I mentioned, Clinton’s policies just made
the incarceration system even harsher.
PW: Well, Clinton remains, I think,
the worst thing that’s happened to American prisoners not just in living memory
but in American history. The laws that he
passed, the Prison Litigation Reform Act,
the Anti-terrorism and Effective Death
Penalty Act among them. The elimina-

tion of Pell Grants for prisoners to get
an education in prison. And, you know,
again, it’s all happened with bipartisan
consensus.
NC: I wouldn’t call it bipartisan because we’ve lost the concept of [two parties].
There was a narrow spectrum of bipartisan
division under the framework of the business party, and that’s pretty much gone. The
only question is, how rightwing are you?
And somebody like Richard Nixon would
be regarded as a liberal today.
PW: You know, he had some pretty
good ideas, like the Environmental
Protection Agency. I wouldn’t see that
passing today.
NC: In fact, they’re attacking it now.
The earned income tax credit, OSHA, you
know. Nixon’s reforms would be considered
way off the spectrum now.
PW: In your view, what’s the Obama
administration’s track record on domestic
human rights issues?
NC: Well, I never frankly expected
much of Obama.
PW: Neither did I.
NC: I wrote about him before the primaries even, in 2008, just using his own web

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April 2014

page. But there was one thing that surprised
me, and that’s his attack on civil liberties.
I don’t understand it. It’s gone way beyond
anything I expected, and I don’t even think
he gets any political gain from it. I just don’t
understand what’s driving it.
PW: Well, he did campaign as being
a better technocratic manager.
NC: Yes, but why the attack on civil
liberties? I mean, some of these attacks
aren’t even discussed much.
PW: Well, I think if you look at the
rise of militarized policing, and that in
this country the ruling class is fully geared
up for a full-blown counter-insurgency.
They barely have protests, much less
resistance. It seems like they’re just not
taking any chances.
NC: That I can understand. But take
something like one of the most extreme
attacks, which barely gets discussed – the
Humanitarian Law Project case. Here’s
a case where the Obama administration
brought it to the courts, went up to the
Supreme Court. They won. And what it
does is expand the concept of material assistance to terrorism. Like if you’re on the
terrorist list and I give you a gun, so, okay,
I’m complicit. The Obama administration
expanded that to advice. To talk. The case
in question [involved] a group that was
giving legal advice to some group that’s
on the terrorist list, but the colloquy in the
court extends it way beyond that.... That’s a
tremendous attack on civil liberties.

8

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 12 of 67

PW: And the right to free speech or
the notion of....
NC: Of free speech. Yes. But it’s barely
even discussed. Incidentally, the whole concept of the terrorist list is a scandal which
should never be accepted. The terrorist list
is by executive order. No recourse.
PW: And no due process right as to
how you get on or how you get off.
NC: Nothing. If you look at the record,
it’s appalling. Like, for example, Nelson
Mandela was on it until a couple of years
ago. And Saddam Hussein was taken off
it because Reagan wanted to support him
during the Iraq invasion of Iran.
PW: One of the things you’ve written extensively about is the impunity of
American client state torturers in other
countries, specifically like in East Timor
and Indonesia and Central America. And
yet here in the United States human rights
abusers such as policemen kill unarmed,
innocent civilians. In Prison Legal News,
we report routinely in every issue of our
magazine about prisoners who are just
outright murdered, directly through use
of excessive force by prison and jail staff,
as well as much more commonly through

Prison Legal News

medical neglect, through the withholding of adequate medical care. And yet the
government officials who do this enjoy
virtual impunity. Occasionally there are
a few criminal prosecutions. There are
civil suits, but government officials have
a broad range of immunities. And, again,
those only seek money damages and,
statistically, are not very successful. So in
your view, what accounts for this virtual
impunity for American and domestic human rights abusers?
NC: In part, impunity is automatic if
it’s not discussed. It’s barely even discussed.
Who talks about it?
PW: No one. Well, Prison Legal News
does, but....
NC: Yes, I know, but anywhere near the
mainstream there’s just no discussion of it.
The number of people in the country who
even know about it outside the prisoners’
families is very slight. And if things are
not even a topic of discussion, sure, there’s
going to be impunity. And all of this reflects
the fact that it’s simply accepted in the elite
culture.
We want to protect ourselves – privileged white people. What happens to the

9

rest, this is not our business. You know,
Guantanamo itself is pretty remarkable.
So, for example, the first case that came up
under Obama was the Omar Khadr case.
He was kidnapped in Afghanistan. He happened to be a Canadian citizen, [and] was a
15-year-old kid who was in a village which
was attacked by American troops.
PW: And, also, it was interesting
since when are soldiers on the battlefield
deemed to be war criminals when defending themselves on the battlefield?
NC: This is a 15-year-old child. Foreign soldiers are attacking his village. And
he’s accused of defending it. So he was
taken, he was kidnapped. He was put in
Bagram, which is worse than Guantanamo,
I think, for several years. Then he was moved
to Guantanamo. More torture. Finally, he
came to trial where he was given a choice.
Of course, his lawyers have to make the
choice. The choice was, plead innocent and
you’ll stay in Guantanamo forever, or worse.
Or plead guilty and you’ll only have to stay
for eight more years. And it was public. Did
you see any outcry about it? I mean, the very
idea of kidnapping a child for the crime of
defending his village from aggression, it’s

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 13 of 67
Noam Chomsky Interview (cont.)
so scandalous you don’t know what to say
about it.
PW: Well, we follow Guantanamo
fairly closely, and one of the things I
think is interesting now is that as soon
as the prisoners start talking about being
tortured or how they’ve been tortured,
the judges immediately cut off the sound
system. And so they can’t even talk about
the torture they’ve endured, so it’s not
even ... you know, we’ve got multiple layers
of impunity.
NC: It goes beyond that. So, for example, there’s one Australian citizen, David
Hill, who was kidnapped in Afghanistan,
sold by bounty hunters to the American
army. He was held in prison for years in
Afghanistan, Bagram and other prisons,
and finally Guantanamo. Horrible prison
story. Finally, after a lot of negotiations, the
Australian government began to intervene
slightly. They hadn’t done much. And he
was released.
He wrote a book about it – a detailed
book describing his years of torture, humiliation, how it worked in Afghanistan, what
it was like in Guantanamo. Did you read
a review of it? It’s more than the judges
cutting off testimony. It’s when material
is published in our open, free society, it
is deep-sixed. This is not the only case by
any means.
PW: This is in the context, as you’re
mentioning atrocities that are occurring

today, that if you look at The New York
Times, for example, books that are being published, I was recently reading a
review not too long ago, by, I think, Applebaum, about human rights violations
under Stalin. And it’s like, okay, so The
New York Times is still mulling over human rights violations that happened 70
years ago in the Soviet Union, but nary
a word or very little about what’s actually occurring today by the American
government.
NC: And again, I think maybe one of
the most striking cases is just the comparison
of post-Stalin Eastern Europe with U.S.
domains in the same period, like Central
America or South America. It’s almost not
discussed. I mean, some of the things that
happened are kind of mind-boggling. Like,
for example, right after the murder of the
Jesuit intellectuals, something which never
happened in Eastern Europe post-Stalin....
PW: Even under Stalin, I don’t think
they were....
NC: Well, not that way. I mean, there
were plenty of purges and monstrosities.
PW: They weren’t doing it openly.
NC: Yes, but remember, this is under
the orders of the high command, very close
to the American Embassy. The troops had
just returned from further training in the
United States and they carried out this
atrocity. Okay. A couple of days after that,
there was a visit to the United States by
Václav Havel, a Czech dissident who suffered under....
PW: And became president.

NC: Yes. And he addressed a joint
session of Congress, and he received massive applause, standing ovations when he
praised the United States as the defender
of freedom – the defender of freedom that
was just responsible for the slaughter of
half a dozen of his counterparts in Central
America. You take a look at the press after
that; the liberal press was just swooning
with admiration. Why can’t we have wonderful intellectuals like this who praise us
for being defenders of freedom, and we’ve
just carried out huge atrocities? Anthony
Lewis wrote about how we’re in a romantic
age, you know, and there’s no comment on
this. It just passes as if it’s normal.
I mean, it’s happening right at this
moment. Take the crimes going on in Iraq,
especially in Fallujah. In Fallujah, there’s
an insurgent force being attacked by the
Iraqi army. There are many laments here
in the press about “the pain we suffer after
American boys fought to liberate Fallujah.
Look what’s happening.” How did American boys fight to liberate Fallujah? It’s one
of the major war crimes of the 21st century.
You take a look at the record, even as it was
just reported in the press.
PW: Yes. They flattened the city.
NC: They surrounded the city. They cut
off food. They allowed people to escape but
kept the male population inside, and then
they went in and mostly slaughtered them.
We don’t know how many because we don’t
count our crimes.
PW: And the U.S. has been doing that
since at least the 1850s.

(Void in New York)

Somers, CT.)

April 2014

10

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 14 of 67

NC: Well, you know, but now we suffer
pain because the American boys fought to
liberate it. I mean, there’s no comment on
this. And, in fact, people here don’t know
what happened. Or in England, incidentally.
There was just a poll in England recently,
people were asked how many Iraqis they
thought had died during the war. The mean
answer was 10,000.
PW: If you ask them how many Jews
died in the Holocaust, everyone knows
those numbers.
NC: Yes, I mean, that’s like you know
probably 5% of the number. There were
some efforts to get the British press to
publish something about it. Most were
rejected.
PW: Let me ask you this while we’re
on the subject of people dying. Why are
the U.S. and Japan the only industrialized
countries that judicially execute their own
citizens through use of the death penalty?
And notice I didn’t say “kill” because
we’re going to leave out the extra-judicial
murders and death squads which most
governments engage in when they’re
threatened.
NC: That’s true that most countries

have abandoned the death penalty.
PW: Formally.
NC: The United States is different,
sometimes in interesting ways. I happened
to be in Norway a couple of times last year.
I was there fortuitously, you remember the
Anders Breivik massacre?
PW: Yes.
NC: So I was there just at the time
when he was captured and identified. And
then I was there again at the time when he
was sentenced. And it was very interesting
to see just the attitudes of the population.
The question of the death penalty never
arose. He was treated as a human being who
had carried out a horrible crime, but he’s a
human being. At the court proceedings he
was permitted to rave and rant on as long
as he wanted. The sentence finally was, I
think, 21 years.
PW: Which was the maximum allowed under Norwegian law.
NC: Which was the maximum, with
the possibility of rehabilitation. The circumstances of his imprisonment would
seem like a luxury hotel by U.S. standards.
And this was accepted, you know? It wasn’t
bitterly denounced. The attitude was, well,

yes, we have to treat people humanely even
when they’ve carried out a shocking massacre. He killed, I think, what, 70 children?
Can you imagine what would have happened here?
PW: I don’t know. It’s interesting
because I was imprisoned in Washington
State, and you have Gary Ridgway who
ultimately pleaded guilty to kidnapping,
raping and murdering, I think it was 51
women, mostly prostitutes, and ultimately he was sentenced to life without
parole. And yet at the same time you
have people in Washington State, which
has the three-strikes law, on their third
offense they’re sticking their finger in
their pocket, pretending it’s a gun and
robbing an espresso stand. And they get
life without parole. So you can say that
the equivalency of the punishment for
sticking your finger in your pocket and
pretending it’s a gun to rob someone is
the same whether you’re doing that or if
you’re killing 51 people.
NC: Well, as soon as you have any
contact with the prison system, what you
discover is appalling. I don’t have to tell
you. For example, in one of the demonstra-

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Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 15 of 67
Noam Chomsky Interview (cont.)

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Since 1959
April 2014

tions in the early ‘60s in the south, I was
with Howard Zinn. We went to Jackson,
Mississippi for a demonstration and at one
point we were able to get the police chief to
take us through the Jackson prison, which,
I should say, by the standards of northern
prisons, wasn’t too bad. I’ve been in worse
ones. Just, you know, under civil disobedience arrests.
But as we were walking through the
halls, of course they were all black men, you
know, a child tapped on the bars. He was in
the prison and he asked me if he could have
a drink of water. So I asked the police chief,
“Can I get him a drink of water?” He said,
“Okay.” When we got back to his office, I
asked did he know why that child was in the
jail? So he asked some secretary who looked
it up, and it turned out that the child had
been found in the streets and they didn’t
know who he was, and they had nothing
special to do with him, so they put him in
jail.... How much of this goes on?
PW: Actually, it still goes on. Prison
Legal News has reported cases of mentally
ill children in Florida who, for lack of any
place to care for them, they wind up in the
prison system.
NC: This kid wasn’t even mentally
ill. They just didn’t know what happened.
Maybe he got lost, or whatever it might
have been. If it had been a white kid, he
wouldn’t have been put in jail.
Save
on IPrescription
PW:
Yes. And
think that one of the
things we’ve
seen increasingly
in the last
Eyeglasses
& Shades
30 years – it goes back to what you talk
for aofFREE
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about asSend
a system
class and
race conMoney
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trol – is that
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prison. We
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but we’ve
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prisons.
10954
NW
Ave I think
it goes back to
Governor
Cuomo using
Dept:
LN0812
HUD fundsMiami,
for low-income
housing to
FL 33168
build prisons, which, in a grotesque way,
is low-income
housing.
Inquiries
from Friends
NC: Unfortunately
true. A lot of it.
and Family Welcome
And the racism
is
really
severe and can’t
1-800-637-4104
be overlooked. The whole record of white
www.prismoptical.com
supremacy in the United States is beyond
contact@prismoptical.com
anything
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PW: Well, one of the things that I
find interesting is that Prison Legal News
has sued a number of jails around the
country, and when you go to jurisdictions
1959
like the DistrictSince
of Columbia,
Atlanta

12

and places like Birmingham, we find
that the prisoners are still mostly black
but the elected officials, the sheriffs, the
prosecutors, the mayors, the judges, huge
portions of the police force and most of
the guards, they’re all black too, and the
conditions are as bad if not worse than
they were under Bull Connor, their white
counterparts, 40 or 50 years ago.
NC: That’s pretty common. If you go to
South Africa, remember, the worst crimes
were carried out by black forces mobilized
by the white government. It’s the way coercive systems operate.
PW: So, basically, what’s more important is who’s doing it rather than the color
of who’s doing it.
NC: There are all kinds of reasons why
people, individuals do what they do, but it’s
very standard to co-opt oppressed people
to carry out crimes and atrocities for the
government. I mean, take, say, England
and India. Some of the worst crimes were
carried out by Indian troops, Indian Sikh
police. In fact, England sent them all over
the world to impose imperial rule.
PW: One of the things you’ve talked
about is race, and yet we’ve got two-anda-half million people in prison and even
when we talk about race, no one is claiming that wealthy black people or Hispanics
are being herded into prison in significant
numbers. So what accounts for the virtual absence of the wealthy from the U.S.
prison population?
NC: The virtual absence of....
Save
on Prescription
PW: Of
the wealthy
from the prison
population?
That should be
easy quesEyeglasses
&anShades
tion. Well, they’re rich.
Send
for ahave
FREE
CatalogI’ll
NC: Do
I even
to answer?
Back
Guarantee
give you anMoney
anecdote.
We’re
living in a
pretty well-to-do suburb, right? You can
Prism
Optical,
Inc. we
see that when
you walk
around. Once
were away, the10954
neighbors
called
told us
NW
7thand
Ave
there was a broken
window
in the house.
Dept:
LN0812
So we came back
and took
look, and it
Miami,
FL a33168
turned out somebody had broken in. We
called the local
police and
they
came and
Inquiries
from
Friends
the first thingand
theyFamily
asked usWelcome
was, “is there a
pillowcase missing?”
So we looked upstairs,
1-800-637-4104
and yes, there was a pillowcase missing.
www.prismoptical.com
Then they said, “We want you to take a look
contact@prismoptical.com
in your medicine
cabinet.” So we looked,
and yes, somebody had rummaged through
the cabinet. And they said, “Well, we know
who’s doing this. This is teenage kids who
live here, and they’re going sort of house
1959
to house, and if theySince
find one
that’s easy to
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 16 of 67

break into, they’ll go in and see if they can
get drugs.” They said, “We know who they
are, and we could arrest them. But it’s no
use. Their parents will have them out of jail
tomorrow.” That’s a typical example.
Or, say, let’s go way high up. Last week
there were news reports about the fact that
Jamie Dimon, CEO of JPMorgan Chase,
just had his salary almost doubled. Why? It
was in gratitude because he had saved the
bank directors from going to prison and
they were only fined $20 billion for criminal
activities. Well, $20 billion, first of all, a lot
of it’s tax deductible and the rest is kind of a
statistical error on their accounts. Now here’s
a guy who was supervising criminal activities
serious enough to cause a $20 billion fine. Is
anybody in jail? What would have happened
if this was a kid who robbed a store?
PW: Yes, that’s the joke. Rob the 7-11
for $20 and get 20 years. And, you know,
rob other people of $20 billion and you
get a raise.
NC: That’s class-based justice.
PW: Do you see the criminal justice
system, police and prisons, as a tool of
class war domestically?
NC: Class war and race war. It’s been

very clearly, especially since Reagan; it’s very
hard to see it as anything other than a kind
of race war. There is kind of a reasonably
close class-race correlation in the United
States, to some extent you can’t....
PW: The racial minorities are disproportionately poor.
NC: Yes. But it goes beyond that. I
mean, as I said, from police practices up
till post-sentencing, it’s sharply racially
discriminatory. But, you know, it’s a racist
country since its origins. I mean, it’s even
familiar in scholarship. There’s a major
study of white supremacy by George
Frederickson, a well-known historian. He
basically compares South Africa and the
United States, but it’s really a comparative
study. His conclusion is there is nothing
anywhere in South Africa or anywhere
else to compare with the horror of white
supremacy in the United States. Actually, it
is so deeply ingrained that none of us even
notice it. I mean, for example, take President Obama. He’s called a black president.
In Latin America he wouldn’t be called a
black president.
PW: Right.
NC: He’d be called one of the various

gradations of mixed race. But the United
States still has kind of tacitly, not formally,
the principle of one drop of black blood.
That’s deep-seated racism.
PW: I have a black Cuban friend. We
were in prison together, and he once told
me that he didn’t know he was black until
he came to the United States. He said in
Cuba he was just Cuban. And then he
comes here and....
NC: Or mulatto. There’s a whole bunch
of gradations of mixed race, but here the
racism is extreme. You can see it coming
back to Reagan. So he opened his 1980
campaign in Philadelphia, Mississippi. A
tiny little town. Why pick that? Nobody
knows anything about it except one thing.
They murdered civil rights workers there.
Did that affect the campaign?
PW: Yes. Arguably, that’s what led to
him winning the Presidency.
NC: It leads to Obama calling him a
great transformative figure, you know.
PW: My final question is at this
point, after 40 years of mass incarceration
with militarization of the police, we’ve
had a massively expanding prison and
jail system. We’ve seen some small dips

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Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 17 of 67
Noam Chomsky Interview (cont.)
in [prison population] numbers in the
last year or two in the United States. It’s
too soon to tell if that’s just a statistical
anomaly.
NC: I don’t think it’s an anomaly. I
think it’s just gotten to a point where it’s
kind of economically unfeasible to maintain it.
PW: My question is, do you see any
prospect of permanent change in U.S.
prison and criminal justice policies and
practices in the near future?
NC: Sure. I mean, if you went back
60 years, you couldn’t have predicted the
achievements of the Civil Rights Movement.... You couldn’t have predicted the
women’s movement, which completely
changed things for half the population.
After all, if you go back to the early days
of the Republic, under law, women were

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not persons. They were property. A woman
was the property of her father, transferred
to her husband.
And in fact it wasn’t until 1975 – not
that long ago – that the Supreme Court
recognized that women were peers. They
had a legal right to serve on federal juries.
Prior to that they weren’t peers. And that’s
sort of the core of being a person under
law. You couldn’t have predicted it. And you
can’t predict what will happen in the future;
it depends how people act. If they become
organized, militant, active, the system of
coercion is pretty fragile and I think it can
crack very quickly.
PW: Do you know who Thomas Mathiesen is? The Norwegian criminologist?
NC: Yes.
PW: One of his quotes that I’ve
always thought about, and this is in the
context that I recall when the Soviet
Union collapsed and I have a degree in
Soviet history, is that no one predicted
that one coming.
NC: One of the people who didn’t
predict it was [former CIA director] Robert
Gates, who was a Soviet specialist. He didn’t
predict it even after it was happening.
PW: And, you know, Mathiesen’s
comment is that systems of repression
appear to be stable right up until the moment they collapse.
NC: That’s right.
PW: And so do you think that’s possible?
NC: This is a very fragile system here.
I think it can crack very easily.

PW: Why do you say it’s fragile?
NC: Because there is very little coercive
force behind it. By comparative standards,
the state in the United States has quite limited capacity for violent repression. I mean,
what happens is unacceptable, but again, by
comparative standards it is not high.
PW: By comparative standards, are
you referring to....
NC: Western countries.
PW: So you would say, for example, in
England, that their police and military has
more domestic repressive capacity?
NC: I think so. And, in fact, they have
much harsher constraints on even things
like freedom of speech.
PW: Yes. The libel laws are pretty
outrageous.
NC: Horrifying. And how fragile
it is, let’s take Norway again, which you
mentioned. The famous Norwegian criminologist Nils Christie wrote a history of
punishment.
PW: I’ve read it. It’s one of my favorite books.
NC: Right. And if you remember, in
the early 19th century, Norway was outlandish.
PW: All the Scandinavian countries
were.
NC: Horrifying, horrifying crimes.
And now they’re remarkably humane.
Things can change.
PW: Okay. Well, this is one of the few
times we end anything on an optimistic
note in Prison Legal News. Thank you
very much.

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Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 18 of 67

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April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 19 of 67

From the Editor
by Paul Wright

T

his month’s interview with Noam
Chomsky is part of PLN’s ongoing
series of interviews with notable people
who have diverse views of the U.S. criminal
justice system. Prior interviews have been
conducted with well-known actor Danny
Trejo, media mogul and millionaire Conrad
Black, and wrongfully convicted former
prisoner Jeff Deskovic. We hope that these
interviews serve to further what passes for
discussion and debate on this country’s
criminal justice system in general and
prisons in particular.
We still need to expand our circulation
in order to keep our subscription rates as
low as possible; since most publishingrelated costs are fixed, the higher our
circulation the lower our per-issue expenses
for things like printing, postage and layout,
which helps keep our costs – and thus our
subscription rates – low.
How can you help? First, you can subscribe to PLN for four years and get a copy
of The Habeas Citebook: Ineffective Assistance
of Counsel for free! This $49.95 value is yours
if you subscribe for four years or extend your
existing subscription for four years. Second, if
you know someone who would benefit from
PLN, purchase a gift subscription for them.
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April 2014

If you write to PLN, please try to be
as concise as possible as our office staff is
limited and it saves time if you can let us
know the purpose of your letter in the opening paragraph. We are always interested in
reporting lawsuit wins by prisoners, including verdicts, settlements and judgments,
so let us know when you prevail in a case.
Informing us that you have filed a lawsuit
is not useful until there has been a ruling
on the merits, at a minimum.
Lastly, look in this issue of PLN for

full-page ads for the Washington Prison
Phone Justice Campaign and how you can
take action on prison phone contracts in
other states that are up for renewal or rebids. PLN and our parent organization, the
Human Rights Defense Center, continue to
advocate for lower phone rates and reform
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Enjoy this issue of PLN and please consider renewing your subscription or purchasing
gift subscriptions for others who are interested
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$2.25 Million Jury Verdict against
LCS in Texas Prisoner Death Suit
by Matt Clarke

O

n October 24, 2012, a federal jury
in Texas awarded $2.25 million to the
estate and survivors of a prisoner who died at
a facility operated by LCS Corrections Services
(LCS), after finding the company was 100% at
fault. The district court subsequently reversed
its dismissal of § 1983 claims against LCS and
granted a new trial as to those claims.
Mario A. Garcia was incarcerated at the
Brooks County Detention Center (BCDC)
in Falfurrias, Texas, owned and operated by
LCS, when he died of a seizure on January 12,
2009. After Garcia was booked into BCDC,
his wife delivered a supply of clonazepam, a
prescription anti-anxiety medication he had
been using for years, to the facility. BCDC
officials received the medication but did not
give it to Garcia because they allegedly had a
policy of refusing to allow prisoners to take
any controlled substances, even bona fide
prescription medications.
Garcia began shaking badly later that
day. He was taken to the emergency room,
treated and returned to BCDC. The prison’s
contract physician, Dr. Michael Pendleton,
saw Garcia twice – the last time on January 8, 2009. After the second visit with Dr.
Pendleton, Garcia’s condition deteriorated
rapidly; he was admitted to the prison’s
medical unit with uncontrollable shaking
on January 10 and remained there until he
had a seizure and died two days later.
Garcia’s estate, widow, son and parents
filed a civil rights action pursuant to 42
U.S.C. § 1983 in federal court that alleged

16

failure to provide adequate medical care
plus state law claims of wrongful death and
gross negligence. Garcia’s father died a few
months prior to trial, after which his mother
agreed to a confidential settlement.
The district court had previously
dismissed the § 1983 claims against LCS,
finding that because Garcia was a federal
prisoner the company was acting under
color of federal law – and § 1983 claims
only apply to deprivations of rights under
color of state law.
At trial on the plaintiffs’ remaining
claims, experts testified that Garcia could
have been saved had he been taken to a
hospital on January 10, and might not have
had the seizure at all had he not been denied
his medication. LCS named Dr. Pendleton
as a responsible third party and claimed
he was 75% at fault. The jury found that
neither Pendleton nor Garcia was at fault,
but rather LCS was 100% responsible for
Garcia’s death.
The jury awarded Garcia’s estate
$500,000 for personal injury and past pain
and suffering. His widow received a total of
$500,000 in damages, and the jury awarded
Garcia’s son $1.25 million for loss of companionship and mental anguish. The total
award against LCS was $2.25 million plus
prejudgment interest at a rate of 5%.
On March 25, 2013, Garcia’s widow filed
a motion for a new trial on the § 1983 claims
that had been dismissed, noting that another
federal court in the Southern District of Texas
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 20 of 67

had found LCS was a state actor because it
derived its authority to operate a prison from
the State of Texas, even though the facility
housed federal prisoners.
The district court agreed, reversing its

dismissal of the § 1983 claims and granting the motion for a new trial as to those
claims against LCS. The new trial remains
pending; the plaintiffs are represented by
Corpus Christi attorneys Craig Henderson

and Kathryn A. Snapka. See: Garcia v. LCS
Corrections Services, U.S.D.C. (S.D. Tex.),
Case No. 2:11-cv-00004.

Additional source: www.verdictsearch.com

Ohio: Attorney General May Not Increase
Sex Offender’s Registration Requirements

I

n April 2013, an Ohio appellate
court ruled that a sex offender, who was
required by virtue of a California conviction to register his address annually for ten
years, could not subsequently be indicted,
after moving to Ohio and being reclassified
under the Adam Walsh Act, for failing to
register every 90 days.
Ansuri Ameem was convicted in
California of sexual assault and pandering.
Classified as a sexually-oriented offender
under the former Megan’s Law, Ameem
was required to register his address annually
for ten years.
In July 2007, after moving to Ohio,
that state’s attorney general reclassified
Ameem as a Tier III offender under the
Adam Walsh Act. The reclassification sub-

jected Ameem to an increased obligation to
register – specifically, every 90 days for life.
Ameem failed to register as required and
was indicted in July 2010.
After unsuccessfully moving to have
the indictment dismissed on grounds that
the Ohio attorney general’s reclassification
was unconstitutional, Ameem pleaded no
contest to failing to register.
On appeal, the Eighth Appellate
District of the Court of Appeals held that
the attorney general’s reclassification of
Ameem from Megan’s Law to the Adam
Walsh Act was invalid. Relying on Ohio
Supreme Court precedent, the appellate
court found that the reclassification violated
the separation of powers doctrine because it
would allow the executive branch to review

or overrule a decision made by the judicial
branch.
The Court of Appeals further noted
that Ameem’s case was not affected by the
Ohio Supreme Court’s decision in State v.
Brunning, 2012 Ohio 5752, 983 N.E.2d
316 (Ohio 2012), which held that “despite
an offender who was originally classified
under Megan’s Law being wrongly reclassified under the Adam Walsh Act, the state
could still maintain a prosecution for a
violation of the reporting requirements as
long as the alleged violation also constituted
a violation of Megan’s Law.”
Accordingly, Ameem’s conviction for
failure to register was reversed. See: State
v. Ameem, 2013 Ohio 1555 (Ohio Ct. App.
2013); 2013 Ohio App. LEXIS 1448.

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Prison Legal News

17

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 21 of 67

The Inadequacy of Prison Food Allergy Policies
by Jamie Longazel and Rachel Archer

M

ichael Saffioti was arrested on
a misdemeanor marijuana charge and
held at the Snohomish County Jail (SCJ)
in Washington State. On the morning of
July 2, 2012, he arrived at the center of his
module where breakfast was being served.
Because he had a severe dairy allergy,
Saffioti examined very closely the pancake
and oatmeal he was given. Video footage
obtained by local news agency KIRO-7
showed him discussing his food with
guards, servers and fellow prisoners. This
was not the first time Saffioti was held at
the SCJ, so his allergy was on record. Yet
jail staff had brought no special diet trays
to his module that morning; they instead
simply removed the pancake from his tray
and assured him the oatmeal would be safe
to eat.
After taking just a few bites, Saffioti
began to experience shortness of breath.
Video footage showed him approaching
a guard’s desk, where reports say he asked
for his inhaler and to see a nurse. He was
given the inhaler but his request for a nurse
was denied, and shortly afterwards he was
sent back to his cell. Once there, according
to a subsequent lawsuit, he pressed his call
button and repeatedly asked when the nurse
would arrive. By looking closely at the video
footage, one can see how he later began
jumping up and down in his cell, seeking
assistance. Thirty-five minutes later a guard
found Saffioti unconscious. After attempts
to perform CPR were unsuccessful, he was
rushed to a nearby hospital where he was
pronounced dead.
Saffioti’s tragic death raises many

important questions about food allergy
policies in U.S. prisons and jails – a subject that has been relatively overlooked,
likely to the detriment of many prisoners.
The federal Bureau of Prisons (BOP) estimates that 0.2% to 3.5% of all prisoners
suffer from food allergies. And a recent
study by the Centers for Disease Control
and Prevention reported a 50% increase in
food allergies among children since 1997.
With approximately 2.2 million people
confined in U.S. prisons and jails today,
this means prison food allergy policies
impact as many as 77,000 prisoners and
likely many more in years to come, including some like Saffioti whose allergies are
so severe that meal choices can literally
mean life or death.
As far as we can tell, there is no reliable
data on how common it is for prisoners
with food allergies to die or otherwise suffer
from unmet dietary needs. We do know that
prisoners file a fair number of lawsuits pertaining to food allergies each year. Given the
many legal obstacles confronted by those
challenging the conditions of their confinement, these cases are likely just the tip of the
iceberg. In an effort to shine more light on
the issue, we sent public records requests to
all fifty states (we received responses from
39), asking about the food allergy policies
used in their prison systems.
Three observations become apparent
after analyzing these policies. The first
is that many are lacking – in some cases,
substantially. The implication is that some
prisoners likely suffer from food allergies that the facilities at which they are

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confined do not recognize. An official in
Kansas responded to our inquiry by noting
that they “do not have a procedure in place
on this subject.” California – whose prison
system houses more than 117,000 people
(as many as 4,000 with food allergies, if
the BOP’s estimate is accurate) – has a
very vague policy that places limits on the
therapeutic diets that physicians are able to
order for prisoners. Neighboring Oregon
only recognizes food allergies that are “life
threatening.” This policy thus excludes
prisoners who suffer from soy allergies, for
example, a condition that the Mayo Clinic
notes is “rarely ... life threatening” but could
nonetheless cause substantial discomfort
with symptoms that include tingling in
the mouth, hives, swelling, abdominal pain,
diarrhea, nausea or vomiting.
New Hampshire’s policy identifies only
certain allergies as “acceptable” – specifically,
the “main food allergies (i.e. onion, tomato,
egg, and peanut).” Saffioti’s severe dairy allergy would not have been recognized under
this policy, nor would someone suffering
from a wheat or gluten allergy, among many
others. Georgia draws a slightly different
line between allergies that are acknowledged and those that are not. They “honor
the following Food Allergies: Milk, Egg,
Wheat, Gluten, Fish/Shellfish, Peanut/Nut,
Chocolate, and Tomato.”
The second observation is that even
among states that do acknowledge an array of allergies, prisoners face a substantial
burden in becoming eligible for alternative
diets. Many states require that an allergy
be “verifiable and documented,” and that

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18

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 22 of 67

“written medical proof ” be provided. This
means either that prisoners must have had
access to allergy tests before their confinement – which for the uninsured can cost
hundreds of dollars – or that they be tested
while behind bars. In the latter case, the
trouble is that some states impose limits on
who can be tested for food allergies.
For example, Arizona’s policy stipulates: “Inmates should only be allergy tested
when there is sufficient evidence to do so.”
This raises concern for those who suffer
from allergies where physical symptoms
are absent, such as celiac disease. As the
National Digestive Diseases Information
Clearinghouse points out, “People with
celiac disease may have no symptoms but
can still develop complications of the disease over time. Long-term complications
include malnutrition – which can lead
to anemia, osteoporosis, and miscarriage,
among other problems – liver diseases, and
cancers of the intestine.” In other words,
a diet can be doing substantial harm to a
prisoner’s body and some existing food allergy policies provide no means by which
that harm can be avoided.
At least one state has a policy in place
that actually deters prisoners from being
tested for food allergies. Kentucky’s policy
permits prisoners to take an allergy test,
but stipulates that prisoners will be charged
for tests that come up negative. One can
assume that this is an attempt to root out
false claims, but even if it succeeds in doing
so, the policy may disaffect those who really
do suffer from allergies. As Food Allergy
Research and Education points out, allergy
tests “do not always provide clear-cut answers” and patients “may have to take more
than one test before receiving [a] diagnosis.”
Even under the circumstances when all the

hoops are jumped through and prisoners
do manage to furnish acceptable “proof ”
of their allergy, a number of states require
continual renewal of such proof, usually
every 90 days.
A final observation is that the burden
is often on the prisoner to make choices
about their food. This is not to say that
prisoners with food allergies should not
be well aware of their condition and have
a firm understanding of how to respond in
the event of an allergic reaction, but rather
to point out the lack of institutional support for food allergy issues. Choices about
what to eat and what to avoid are especially
difficult to make when prisoners are served
food they did not prepare. Yet some institutions tell prisoners to fend for themselves,
often without recognizing how difficult
doing so can be.
Take Oregon’s policy, for example:
“We encourage inmates to self-select from
the line. For example, if an inmate has a
peanut allergy and we are serving peanut
butter & jelly sandwiches, they may select
the meal alternative tray which consists of
beans, rice, vegetables, fruits, and bread.”
South Carolina’s policy similarly states
little more than the obvious: “If an inmate
notifies medical staff of a food allergy, the
medical staff will instruct the inmate to
avoid that allergy in his/her food choices.”
Georgia’s policy is that once a prisoner
receives a food tray, they are considered
compliant. This policy also brings Saffioti’s
case to mind, for technically after servers
handed him the pancake and oatmeal
breakfast tray, he would have been considered compliant and his desperate attempts
to learn the contents of the food would
have been irrelevant in a lawsuit.
In conclusion, our content analysis of

prison food allergy policies provides cause
for alarm. Granted, it is possible that prison
staff go beyond what is listed on policy
forms in helping prisoners meet their dietary needs. However, given the conditions
of confinement that have characterized our
nation’s overcrowded prisons in this era of
mass imprisonment, we have little reason
to be so optimistic. Consider that in the
realm of health care, containment has taken
precedent over healing, as was recently
exposed in California’s sweeping Brown v.
Plata class-action lawsuit.
Along similar lines, cost cutting rather
than nutritional adequacy seems to be
increasingly emphasized in the realm of
prison food. A recent Prison Legal News article, for example, detailed the great lengths
that Aramark – a company that contracts
with more than 600 correctional facilities
– goes through to cut costs. A class-action
lawsuit filed by prisoners in Illinois protesting the high amounts of soy in their diet is
another example of providing prison food
“on the cheap” to the detriment of prisoners’
health. The likelihood that prisoners with
food allergies have their needs met is thus
diminished as they confront not just a set
of inadequate policies, but also a system
whose main concern is not their health and
well-being.
Jamie Longazel is an Assistant Professor of Sociology at the University of Dayton, Ohio. He
is co-author (with Benjamin Fleury-Steiner)
of the book, The Pains of Mass Imprisonment
(Routledge, 2013). Rachel Archer is a Criminal Justice Studies major at the University
of Dayton who has research interests in the
areas of food allergies, law and prison conditions. They provided this article exclusively for
Prison Legal News.

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California State Bar Board of Specialization

Certified Criminal Law and
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523 West Sixth Street, Suite1109
Los Angeles, CA. 90014
marileemarshallandassociates.com

If you have a California case
you need a California lawyer!
(213) 489-7715
Prison Legal News

19

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 23 of 67

Kitchen Supervisor Gets Prison Time for
Sexually Abusing Two Prisoners

A

civilian prison employee’s sexual
abuse of two prisoners at a federal facility in Phoenix, Arizona was made public after
an FBI surveillance camera captured the
lascivious details of their ménage à trois.
According to a rather explicit criminal
complaint filed on August 29, 2012 in U.S.
District Court, Carl David Evans, the
kitchen supervisor at FCI-Phoenix, traded
packs of cigarettes for oral sex with two
male prisoners identified only as “J.I.” and
“E.D.” Evans was charged with two counts
of sexual abuse of a ward and one count of
providing contraband.
Prison officials learned in June 2012
that Evans was “engaged in a sexual
relationship” with at least one prisoner,
according to FBI Agent Tyler Woods. Investigators hid a video camera in the food
storage area in the kitchen where the alleged
sex acts were taking place, and recorded
Evans’ work shifts for an entire week.
Woods then reviewed the video and
discovered footage showing Evans, J.I. and
E.D. entering the storage area. E.D. was
heard asking Evans and J.I. if they were
“ready to suck some dick.” Evans locked the
door, and the trio then had mutual fellatio
on top of some food sacks.
E.D., who worked as a cook, told FBI
investigators that beginning in April 2012,
Evans gave him a pack of cigarettes every
two weeks that he sold to other prisoners for

as much as $150 each. Evans exacerbated
the relationship when he became “aggressive physically,” according to E.D., asking
him to take off his shirt and then proceeding to play with his nipples.
E.D. estimated that Evans performed
oral sex on him 15-20 times. Once, E.D.
alleged, Evans brought K-Y gel and placed
a condom on him, and the men briefly engaged in anal sex before E.D. had a change
of heart.
J.I. told investigators that he engaged
in oral sex with Evans and E.D. three times,
only because he knew that E.D. had access

to food and “benefited from his relationship
with Evans,” according to the complaint.
Evans pleaded guilty to five of the
federal charges in February 2013, and
seven other charges were dropped. He was
sentenced on July 3, 2013 to 36 months in
prison, three years of supervised release and
a $5,000 fine. Evans has since appealed his
sentence to the Ninth Circuit. See: United
States v. Evans, U.S.D.C. (D. Ariz.), Case
No. 2:12-cr-01634-SRB.
Additional sources: Arizona Republic, www.
thesmokinggun.com

$15.5 Million Settlement for Mentally Ill
Jail Detainee Held in Solitary Confinement

A

mentally ill detainee who was
placed in solitary confinement in a New
Mexico county jail for nearly two years,
without adequate medical or mental health
care, accepted a $15.5 million settlement for
violations of his civil rights.
Stephen Slevin, 59, served almost 22
months in solitary confinement between
2005 and 2007 at the Doña Ana County
Detention Center in Las Cruces, New
Mexico. On January 24, 2012, a federal
jury awarded him $22 million. The award
was upheld by a federal judge after county
officials challenged it as being excessive, but

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Slevin decided in February 2013 to accept a
$15.5 million settlement and end the legal
battle without further appeals.
“It has been a long and hard fight to
bring Mr. Slevin justice,” said one of his attorneys, Matthew Coyte. “This settlement,
although very large, does not give back to
Mr. Slevin what was taken from him, but
if it prevents others from enduring the pain
and suffering he was subjected to, then the
fight has been worthwhile.”
Slevin’s ordeal began on August 24,
2005, when he was booked into the jail on
charges of driving while intoxicated and

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April 2014

20

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 24 of 67

receiving or transferring a stolen vehicle.
“He was driving through New Mexico
and arrested for a DWI, and he allegedly
was in a stolen vehicle. Well, it was a car he
had borrowed from a friend; a friend had
given him a car to drive across the country,”
said Coyte.
Slevin had a lifelong history of mental
illness. He was found to have suicidal tendencies by former Doña Ana County Detention
Center medical director Daniel Zemek. As
a result, Slevin was placed alone in a bare,
padded cell for a few days, then moved to
the medical center and finally transferred to
solitary confinement in October 2005. He
remained there for the next 18 months.
When he entered the jail, Slevin “was
a well-nourished, physically healthy, adult
male with a mental illness.” On May 8,
2007, he was transferred to the New Mexico
Behavioral Health Institute (NMBHI) for
a psychiatric review.
According to Slevin’s civil rights complaint, when he was admitted to NMBHI
he smelled, his beard and hair were overgrown and he had a fungal skin infection.
He was also malnourished, weighed only
133 pounds and complained of paranoia,
hallucinations, bed sores and untreated
dental problems. He was disoriented and
clueless to the fact that he had spent the last
18 months in solitary confinement.
Slevin received mental health care at
NMBHI, and the reintroduction to human interaction and socialization brought
back his alertness and awareness. After
only 14 days of treatment, however, Slevin

was returned to the Doña Ana Detention
Center where he was again placed in solitary
confinement.
As before, his mental health began to
deteriorate. The failure of jail officials to act
on his requests for dental care forced Slevin
to pull his own tooth while in his cell. His
toenails “grew so long they curled under his
toes,” the Albuquerque Journal reported.
Slevin was finally released on June 25,
2007 after the charges against him were
dismissed. He claimed he had never seen a
judge and was placed in solitary confinement
with no explanation from jail officials.
Slevin sued for deprivation of his civil
rights. At trial, Zemek admitted that he
couldn’t remember ever having visited
Slevin in solitary confinement during the
time he worked as the jail’s medical director, and accepted responsibility for being
the person who was supposed to oversee
Slevin’s health care.
“There were circumstances beyond my
control that contributed to that, my failure.
I take the blame, yes,” he testified. Zemek
also said he had informed county officials
that he felt the jail did not have enough
medical staffing.
At the conclusion of the six-day trial,
the jury found Doña Ana County Detention Center director Christopher Barela
liable for depriving Slevin of his constitutional rights to humane conditions of
confinement, adequate medical care and
procedural due process, awarding Slevin $3
million in punitive damages.
The jury found Zemek liable for $3.5

million in punitive damages for the same
types of violations, and also found that a
municipal policy, implemented by the Board
of Commissioners for the County of Doña
Ana, resulted in violations of Slevin’s rights
under the Americans with Disabilities
Act as well as various torts, including false
imprisonment. The jury awarded $15.5
million in compensatory damages against
the defendants.
The Las Cruces Sun-News reported in
early 2013 that the County of Doña Ana
is responsible for paying $9.5 million of
the settlement, while the county’s insurance provider will cover the remaining
$6 million. See: Slevin v. Board of County
Commissioners for the County of Doña Ana,
U.S.D.C. (D. NM), Case No. 1:08-cv01185-MV-SMV.

Sources: www.huffingtonpost.com, Las Cruces
Sun-News, Santa Fe Reporter, Albuquerque
Journal



APPEALS, POST-CONVICTION,
HABEAS, § 2255, PAROLE
IDAHO ONLY
Craig H. Durham, Attorney at Law
910 W. Main Street, Suite 328
Boise, ID 83702
chdlawoffice.com

Experienced Civil Rights Attorney dedicated to seeking
justice for those who are incarcerated
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One Pine West Plaza, Suite 109
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Albany, NY 12205-5531
518.434.1718
www.keachlawfirm.com
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Member, Multi-Million Dollar Advocates Forum
Outside Counsel, Prison Legal News
National Practice

Prison Legal News

Custodial Death Cases • Wrongful Arrest and Incarceration
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21

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 25 of 67

Colorado Prisoner who Murdered Guard
Gets Life Without Parole

L

ast month, P r ison L egal N e ws
reported that the parents of a slain
Colorado prison guard did not want the
prisoner who murdered him to face the
death penalty. Edward Montour, who beat
Lima Correctional Facility guard Eric Autobee to death in October 2002, was initially
sentenced to death but that sentence was
overturned in 2007.
Montour faced the death penalty again
in a retrial, but Eric Autobee’s parents, Bob
and Lola, who now oppose capital punishment, wanted to provide a victim impact
statement to the jury urging them not to
impose a death sentence.
“A lot of people think because I forgave
him [Montour], I don’t want to hold him
accountable or have him punished,” Bob
Autobee stated. “That’s not true. People
that do these things have to be punished,
but death is not the answer.”
Eighteenth Judicial District Attorney
George Brauchler objected to the Autobees’
request to provide a victim impact statement, arguing that such statements could
only be for punitive and not mitigating
purposes. [See: PLN, March 2014, p.24].
Before murdering Eric Autobee,
Montour was serving a life sentence for
killing his 11-week-old daughter, Taylor,
which he claimed was an accident when
she fell and hit her head. On February 27,
2014, the El Paso County coroner’s office
changed the cause of Taylor’s death from
homicide to undetermined, and a group
of experts retained by Montour’s defense
counsel said her injuries were consistent
with an accident.

Defense attorneys had intended to
argue at trial that Montour’s mental illness became worse after he was wrongfully
convicted of killing his daughter, culminating in his fatal attack on Eric Autobee
in the kitchen at the Lima Correctional
Facility.
However, on March 6, 2014, Montour
pleaded guilty to murdering Autobee in
exchange for a sentence of life without pa-

role; he said he owed the plea to Autobees’
parents. Even if he is eventually exonerated
in his daughter’s death, he still must serve a
life sentence for killing Eric Autobee.
“I had to get as much justice out of
this situation as I could,” Brauchler said
in reference to offering the plea bargain to
Montour.
Sources: www.kdvr.com, Denver Post

U.S. Supreme Court: District Courts Can
Make Federal Sentences Consecutive or
Concurrent to Future State Sentences

O

n Mar c h 28, 2012, t he U.S.
Supreme Court held that a federal
district court may impose a federal prison
term that is consecutive to an anticipated
future state court sentence. In February
2014, the Third Circuit ruled that a district
court’s ability to impose such a sentence
only applies at the time when the federal
sentence is imposed.
Monroe Ace Setser was on probation
for a drug charge when he was arrested in
Texas on a new charge of possession with
intent to deliver a controlled substance.
After Setser was indicted on the new drug
charge, the state moved to revoke his probation. A federal grand jury then indicted
him on the federal offense of possession
with intent to distribute 50 grams or more
of methamphetamine, based on the same
incident that had resulted in the new state
drug charge.

This did not constitute double jeopardy
based on the legal fiction that it is permissible to pursue state and federal charges for
the same criminal conduct under the “dual
sovereignty” doctrine.
Setser pleaded guilty to the federal
charge and was sentenced to 151 months
in prison. The federal judge made Setser’s
sentence consecutive to the sentence he
would receive in the probation revocation
proceedings, but concurrent with the sentence he would receive for the new state
drug charge.
Setser appealed. While his appeal was
pending, the state sentenced him to five
years in prison for the probation revocation and 10 years for the new drug charge,
with both sentences to run concurrent.
This made it impossible to implement
the federal sentence as ordered by the
district court.

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April 2014

22

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 26 of 67

Regardless, the Fifth Circuit Court
of Appeals affirmed his federal sentence,
holding that the district court had the authority to run a sentence consecutive to a
future state sentence that had not yet been
imposed, and that the sentence was reasonable even if “partially foiled” by the state
court’s decision to make the state sentences
concurrent. Setser filed a petition for writ
of certiorari in the U.S. Supreme Court,
which was granted.
The Supreme Court held that the traditional broad discretion that federal judges
enjoy when imposing sentences includes the
ability to make a sentence consecutive to an
anticipated state sentence, and that such a
determination is not left for the Bureau of
Prisons to decide. However, in this case the
sentence pronounced by the federal judge
could not be carried out because the state
court had made the probation revocation
and new drug charge sentences concurrent.
In such a case, the Supreme Court held
that the Bureau of Prisons “ultimately has
to determine how long the District Court’s
sentence authorizes it to continue Setser’s
confinement. Setser is free to urge the Bureau to credit his time served in state court
based on the District Court’s judgment
that the federal sentence run concurrently
with the state sentence for the new drug
charges. If the Bureau initially declines to
do so, he may raise his claim through the
Bureau’s Administrative Remedy Program.
See 28 CFR § 542.10 et seq. (2011). And if
that does not work, he may seek a writ of
habeas corpus.”
The judgment of the Fifth Circuit
upholding Setser’s federal prison sentence
was therefore affirmed. See: Setser v. United
States, 132 S.Ct. 1463 (2012).
On February 12, 2014, the Third Circuit Court of Appeals applied the ruling in
Setser to find that while a district court can
decide whether to run a federal sentence
concurrent or consecutive to a future state
sentence that has not yet been imposed, it
can do so only at the time of sentencing on
the federal charges.
Defendant Michael Sharpe was
sentenced to 144 months in federal
prison in 2004; he expired his sentence
in May 2013 and was remanded to
Pennsylvania officials for a parole violation. He then filed a motion in the
district court seeking reconsideration
of his federal sentence, requesting that
Prison Legal News

the court run it concurrent with his
subsequently-imposed Pennsylvania
state sentence.
The district court held it did not have
jurisdiction to modify Sharpe’s sentence,
which was affirmed on appeal. The Third
Circuit found that Setser “holds merely that
district courts have such authority” at the
time the federal sentence is imposed when
deciding whether federal sentences are to
be made concurrent or consecutive to future
state sentences.
The appellate court further noted that

23

“even if the District Court had been authorized to modify Sharpe’s federal sentence,
that is not really what he was asking the
court to do. Sharpe’s federal sentence has
expired and he is now serving a state-court
sentence. Thus, Sharpe is really seeking to
modify his state sentence on the ground
that it should (or should have) run concurrently with his federal sentence. That is a
matter for Pennsylvania authorities, not the
federal courts.” See: United States v. Sharpe,
2014 U.S. App. LEXIS 2653 (3d Cir. 2014)
(unpublished).

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 27 of 67

Lowering Recidivism through Family Communication
by Alex Friedmann

T

here are currently 2.2 million
people held in prisons and jails in the
United States,1 and an estimated 95% of
prisoners currently in custody will one day
be released. Based on 2012 data, around
637,400 people are released annually from
state and federal prisons.2
According to an April 2011 report by
the Pew Center on the States, the average
national recidivism rate is 43.3%.3 Based
on that average rate, an estimated 276,000
released prisoners can be expected to recidivate each year, many committing new
crimes and returning to prison.
This negatively impacts our communities in several ways, including the societal
costs of more crime and victimization as
well as the fiscal costs of reincarcerating
ex-prisoners who commit new offenses –
at an average annual cost of $31,286 per
prisoner, according to a 2012 report by the
Vera Institute.4
Studies have consistently found that
prisoners who maintain close contact with
their family members while incarcerated
have better post-release outcomes and lower
recidivism rates.
These findings represent a body of
research stretching back over 40 years.
For example, according to “Explorations
in Inmate-Family Relationships,” a 1972

study: “The central finding of this research
is the strong and consistent positive relationship that exists between parole success
and maintaining strong family ties while in
prison. Only 50 percent of the ‘no contact’
inmates completed their first year on parole
without being arrested, while 70 percent of
those with three visitors were ‘arrest free’
during this period. In addition, the ‘loners’
were six times more likely to wind up back
in prison during the first year (12 percent
returned compared to 2 percent for those
with three or more visitors). For all Base
Expectancy levels, we found that those
who maintained closer ties performed more
satisfactorily on parole.”5
These findings still ring true. An article
published in August 2012 in Corrections
Today, a publication of the American Correctional Association, titled “The Role of Family
and Pro-Social Relationships in Reducing
Recidivism,” noted that “Family can be a
critical component in assisting individuals
transitioning from incarceration because
family members provide both social control
and social support, which inhibit criminal
activity.... In contrast, those without positive
supportive relationships are more likely to
engage in criminal behavior.”6
Further, a Vera Institute study, published
in October 2012, found that “Incarcerated
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April 2014

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24

men and women who maintain contact with
supportive family members are more likely
to succeed after their release.... Research on
people returning from prison shows that
family members can be valuable sources
of support during incarceration and after
release. For example, prison inmates who
had more contact with their families and
who reported positive relationships overall
are less likely to be re-incarcerated.”7
Another Vera Institute report, published in 2011, stated: “Research shows that
incarcerated people who maintain supportive relationships with family members have
better outcomes – such as stable housing
and employment – when they return to the
community. Many corrections practitioners
and policy makers intuitively understand
the positive role families can play in the
reentry process, but they often do not know
how to help people in prison draw on these
social supports.”8
According to research published in
Western Criminology Review in 2006, “a
remarkably consistent association has been
found between family contact during incarceration and lower recidivism rates.”9
Correctional practices that “facilitate
and strengthen family connections during
incarceration” can “reduce the strain of parental separation, reduce recidivism rates,
and increase the likelihood of successful
re-entry,” according to a 2005 report by the
Re-Entry Policy Council.10
A 2003 study by the Washington,
D.C.-based Urban Institute, “Families Left
Behind: The Hidden Costs of Incarceration
and Reentry,” as revised in 2005, noted:
“Research findings highlight the importance of contact among family members
during incarceration. Facilitating contact
has been shown to reduce the strain of
separation and increase the likelihood of
successful reunification. Studies comparing
the outcomes of prisoners who maintained
family connections during prison through
letters and personal visits with those who
did not suggest that maintaining family ties
reduces recidivism rates.”11
Also, a 2004 study by the Urban
Institute stated, “Our analysis found that
[released prisoners] with closer family
relationships, stronger family support, and
fewer negative dynamics in relationships
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 28 of 67

with intimate partners were more likely to
have worked after release and were less likely to have used drugs.” The study authors,
Christy Visher, Vera Kachnowski, Nancy
La Vigne and Jeremy Travis, concluded, “It
is evident that family support, when it exists,
is a strong asset that can be brought to the
table in the reentry planning process.”12
It is thus abundantly clear that maintaining close family relationships during
incarceration results in lower recidivism
rates and therefore less crime, which benefits society as a whole. Yet in spite of this
clear correlation, corrections officials often
do little to encourage contact between prisoners and their family members.
There are three primary forms of communication available to prisoners: letters,
visits and phone calls.
With respect to letters, many prisoners are illiterate or functionally illiterate,
which frustrates correspondence. A 2007
report by the National Center for Education Statistics found that 39% of prisoners
scored “below basic” for quantitative literacy
testing, while another 39% scored at only
a “basic” level.13
Other studies likewise have found high
levels of illiteracy or poor written communication skills among prisoners, which
makes letter-writing as a means of regular
contact between prisoners and their families
problematic.
Further, an increasing number of jails
are adopting postcard-only policies, whereby
prisoners can only receive, and sometimes
send, mail in the form of postcards – a very
limited means of correspondence. [See:
PLN, Nov. 2010, p.22]. Such policies place
additional burdens on communication
between prisoners and their families; PLN
and other organizations have challenged
postcard-only policies in various jurisdictions, including Florida, Tennessee, Oregon,
Washington and Michigan. [See: PLN, Jan.
2014, p.42; Nov. 2013, p.24;June 2013, p.42;
Jan. 2012, p.30; Sept. 2011, p.19].
In regard to visitation, a November
2011 study by the Minnesota Department
of Corrections examined recidivism rates
for 16,420 ex-prisoners over a five-year
period, comparing rates for those who
received visits while incarcerated and those
who didn’t. The study found that “Any visit
reduced the risk of recidivism by 13 percent
for felony reconvictions and 25 percent
for technical violation revocations, which
reflects the fact that visitation generally
Prison Legal News

had a greater impact on revocations. The
findings further showed that more frequent
and recent visits were associated with a
decreased risk of recidivism.”14 [See: PLN,
May 2013, p.1].
However, prison officials often make
visitation an unpleasant process, including
lengthy waits, onerous searches, restricted
visitation times and rigid enforcement of
often petty rules. For example, one female
attorney said she was told by prison officials
that she could not visit a prisoner because
her underwire bra set off the metal detector.

25

After leaving, removing her bra and then
returning, she was told she could not visit
because she wasn’t wearing a bra.
According to the 2011 Vera Institute
study, “Many family members also indicated
that prison rules and practices – including
searches, long waits, and inconsistent interpretations of dress codes for visitors – can be
unclear, unpleasant, too restrictive, and even
keep people from visiting again.”
Due to such problematic issues with
visitation, and because prisoners are frequently housed at facilities located far from

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 29 of 67
Lowering Recidivism (cont.)
their families which makes in-person visits
difficult (federal prisoners, for example, may
be held at any federal prison in the United
States), phone calls are a primary means of
maintaining family contact.
As acknowledged by the largest prison
phone company in the nation, Global
Tel*Link: “Studies and reports continue
to support that recidivism can be significantly reduced by regular connection and
communications between inmates, families
and friends – [a] 13% reduction in felony
reconviction and a 25% reduction in technical violations.”15
Kevin O’Neil, president of Telmate,
another phone service provider, agreed,
stating, “The more inmates connect with
their friends and family members the less
likely they are to be rearrested after they’re
released.”16
When the Federal Communications
Commission voted in August 2013 to
reduce the cost of interstate prison phone
calls nationwide, the issue of rehabilitation
and recidivism played a contributing role in
the FCC’s decision.
As stated by FCC Commissioner
Mignon Cylburn: “Studies have shown
that having meaningful contact beyond
prison walls can make a real difference in
maintaining community ties, promoting
rehabilitation, and reducing recidivism.
Making these calls more affordable can facilitate all of these objectives and more.”17
The FCC’s order imposing rate caps
on interstate prison phone calls went into
effect on February 11, 2014, though other
parts of the order have been stayed by the
D.C. Circuit Court of Appeals. [See: PLN,
Feb. 2014, p.10].
Notably, numerous corrections officials filed objections to the FCC’s plan to
impose rate caps, and intrastate (in-state)
prison phone rates, which were not affected by the FCC’s order, remain high.
Meanwhile, prisons and jails nationwide
have received hundreds of millions of dollars in “commission” kickbacks from prison
phone companies, and such kickbacks have
long resulted in inflated phone rates that
create financial barriers to communication between prisoners and their family
members. [See: PLN, Dec. 2013, p.1; April
2011, p.1].
In conclusion, although research has
April 2014

consistently found that regular contact
between prisoners and their families results in better post-release outcomes and
lower recidivism rates, corrections officials
have done little to facilitate – and have
sometimes deliberately frustrated – such
communication with respect to written correspondence, visitation and phone calls.
Investments in prison-based literacy
programs and less restrictive mail policies,
revising visitation policies to encourage
visits by family members, and reducing
intrastate prison and jail phone rates would
provide prisoners with greater opportunities
to maintain close relationships with their
families, leading to lower recidivism rates
and less crime in our communities.
Few corrections officials seem willing
to take such actions, though, which is a
strong indicator that reducing recidivism –
thus reducing the size of our nation’s prison
population and the associated costs – is not
one of their priorities.

Endnotes
1 http://www.bjs.gov/content/pub/pdf/cpus12.pdf
2 http://www.bjs.gov/content/pub/pdf/
p12tar9112.pdf
3 http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/sentencing_and_corrections/

State_Recidivism_Revolving_Door_America_Prisons%20.pdf
4 w w w. v e r a . o r g / s i t e s / d e f a u l t / f i l e s /
resources/downloads/Price_of_Prisons_updated_
version_072512.pdf
5 http://www.fcnetwork.org/reading/holt-miller/
holt-millersum.html
6 https://www.aca.org/fileupload/177/ahaidar/
Flower.pdf
7 http://www.vera.org/files/the-family-andrecidivism.pdf
8 http://www.vera.org/sites/default/files/resources/
downloads/Piloting-a-Tool-for-Reentry-Updated.pdf
9 http://wcr.sonoma.edu/v07n2/20-naser/naser.
pdf (citing other sources)
10 http://csgjusticecenter.org/wp-content/
uploads/2013/03/Report-of-the-Reentry-Council.pdf
11 http://www.urban.org/UploadedPDF/
310882_families_left_behind.pdf
12 http://www.urban.org/UploadedPDF/
310946_BaltimorePrisoners.pdf
13 http://nces.ed.gov/pubs2007/2007473.pdf
14 http://www.doc.state.mn.us/pages/files/largefiles/Publications/11-11MNPrisonVisitationStudy.pdf
15 Petitioners’ Opposition to Petition for Stay of
Report and Order Pending Appeal, FCC WC Docket
No. 12-375, Exhibit D, page 6 (October 29, 2013)
16 www.telmate.com/oregon-doc-installatio
17 http://transition.fcc.gov/Daily_Releases/
Daily_Business/2013/db0926/FCC-13-113A2.txt

Iowa: Parole Agreement Does Not
Constitute Voluntary Consent that
Justifies Warrantless Search

L

ast year the Supreme Court of
Iowa reversed a parolee’s conviction on
drug charges, holding that his acceptance
of a search condition in a parole agreement
did not constitute voluntary consent, and
therefore a warrantless, suspicionless search
of his car was unreasonable and violative
of his rights under the search and seizure
clause of the state constitution.
While on parole in 2009, Isaac A.
Baldon III was subjected to a search of
his person, the motel room where he
was staying and his car, all pursuant to a
consent-to-search provision in the parole
agreement that Baldon, like all Iowa parolees, was required to sign as a prerequisite to
being released on parole. The police found
a large quantity of marijuana in Baldon’s
car and charged him with drug-related
offenses.
Baldon moved to suppress the mari-

26

juana from the search of his vehicle, arguing
that his signing of the parole agreement did
not constitute voluntary consent to searches
of his person or property. The district court
denied the motion and found him guilty
of the charges.
On appeal, the Iowa Supreme Court
reversed the judgment. Analyzing the issue
of consent on state constitutional grounds,
the Court concluded, in a thoughtful
opinion, that the standard search provision
contained in Baldon’s parole agreement did
not represent a voluntary grant of consent
to searches. Notably, this finding rested on
provisions in the Iowa constitution, and the
Supreme Court noted that many courts in
other jurisdictions “have concluded that
consent-search provisions in probation
agreements constitute a waiver of searchand-seizure rights.” See: State v. Baldon, 829
N.W.2d 785 (Iowa 2013).
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 30 of 67

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April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 31 of 67

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April 2014

Update on Missouri Incarceration
Reimbursement Act Case

P

L e g a l N e w s p r e v io u s ly
reported a decision by the Bankruptcy
Appellate Panel for the Eighth Circuit,
which held that a Missouri bankruptcy
court was correct in concluding that state
prison officials did not violate a discharge
injunction by collecting money from a prisoner’s account for incarceration costs that
accrued after the injunction was filed.
In 2009, Missouri prisoner Zachary A. Smith was initially ordered to pay
$87,830.13 to cover the costs of his incarceration through March 2007 under the
Missouri Incarceration Reimbursement Act
(MIRA), plus future costs that accrued until
his release from custody. He filed a Chapter
7 bankruptcy petition in 2010 and received
a discharge in March 2011, effectively voiding the MIRA judgment.
In September 2012, however, prison
officials seized funds deposited into Smith’s
prison account for costs that had accrued
after he filed for bankruptcy. Smith sought a
contempt ruling from the bankruptcy court,
alleging the state had violated the discharge
injunction. The bankruptcy court agreed
that the MIRA judgment was void with
respect to costs accrued as of the date of the
bankruptcy filing, but held the judgment
remained valid as to future incarceration
reimbursement costs. The Eighth Circuit
affirmed on February 5, 2013. [See: PLN,
rison

Feb. 2014, p.11].
Smith then filed a Rule 74.06(b)
motion in circuit court, arguing that the
state could not seize assets from his prison
account for MIRA judgments that were
unknown at the time of the MIRA hearing, citing State ex rel. Koster v. Cowin, 390
S.W.3d 239 (Mo. Ct. App. 2013) and State
ex rel. Koster v. Wadlow, 398 S.W.3d 591
(Mo. Ct. App. 2013).
In a March 6, 2014 letter to PLN,
Smith wrote: “The Chapter 7 [bankruptcy]
was necessary to discharge the MIRA debt,
but I had to argue that the AG’s office
could not be reimbursed with assets that
were not identified and not known at the
time of the MIRA hearing – meaning the
AG could not impose future costs for incarceration against me unless it was shown
to come from a current stream of income”
that existed when the MIRA judgment
was entered.
The state conceded, filing a satisfaction of judgment in the circuit court on
October 16, 2013, and the MIRA liens
against Smith were subsequently removed.
Smith, who handled the litigation pro se,
noted that Missouri prisoners facing MIRA
judgments can successfully challenge them.
See: State of Missouri v. Smith, Cole County
Circuit Court (MO), Case No. 07ACCC00109-01.

No Discipline for Oregon Prosecutor and
Defense Counsel for Illegal Confinement
of Mentally Ill Defendant

A

lthough the Oregon State Bar
initially decided to pursue disciplinary
charges against the district attorney for Washington County and a criminal defense attorney
who represented a mentally ill defendant, for
causing the defendant’s illegal confinement,
the charges were later dropped.
Donn Thomas Spinosa stabbed his
wife to death on May 10, 1997, reportedly
because she wouldn’t give him money to
play video poker. He was found unable to
aid and assist in his defense and sent to the
Oregon State Hospital (OSH) for mental
health treatment.
Under Oregon law, Spinosa could be

28

held at OSH for no more than three years.
When he was still not competent to stand trial
in 2000, the criminal charges against him were
dismissed and he was civilly committed.
The civil commitment order was renewed
annually until 2010, when Washington
County District Attorney Bob Hermann
claimed that OSH officials told him they
were considering discharging Spinosa. An
OSH official denied his claim.
In October 2010, Hermann refiled
aggravated murder charges against Spinosa,
who was again found unable to aid and assist in his defense and returned to OSH.
Hermann and Spinosa’s defense counsel,
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 32 of 67

Robert B. Axford, then filed a joint motion
asking Washington County Circuit Court
Judge Thomas Kohl to issue a permanent
“magistrate mental illness hold” requiring
Spinosa’s indefinite confinement at OSH
and prohibiting his release without approval
by the court. This was unusual because Oregon law does not recognize, or allow for, a
“magistrate mental illness hold.”
Nevertheless, Hermann argued that
the hold was necessary due to the “woeful
inadequacy of Oregon law” with respect
to dangerous mentally ill defendants. He
admitted that he and other prosecutors dislike the civil commitment process because it
removes mentally ill offenders like Spinosa
from the criminal justice system.
Neither Hermann nor Axford offered
authority for the legality of a magistrate
mental illness hold, because no such authority exists. Regardless, Judge Kohl signed
the order and dismissed Spinosa’s murder
charges. The order cited no legal authority
for the hold and simply referred to Hermann’s memorandum.
In December 2011, retired Circuit
Court Judge Jim Hargreaves filed complaints with the Oregon State Bar (OSB)
against Hermann and Axford, as well as a
judicial complaint against Judge Kohl.
Hargreaves noted in the OSB complaints that state law does not allow for a
magistrate mental health hold. “Such an
order is entirely without legal foundation
in Oregon and stripped Mr. Spinosa of all

his rights and protections,” he wrote. Hermann, Axford and Kohl had agreed to an
“undeniably invalid order” to sidestep the
law, he alleged.
An unrepentant Hermann called the
OSB complaint a “cruel irony” given that
he, Axford and Judge Kohl had agreed on
a solution that they felt best for the public
and for Spinosa – even though that solution
was unsupported by state law.
Hermann and Axford told the OSB that
they believed the order was valid and did
not intentionally violate the law. The OSB
evidently disagreed, as it voted in September
2012 to pursue disciplinary charges against
the two attorneys for unmeritorious legal positions and engaging in conduct prejudicial
to the administration of justice.
Meanwhile, Judge Kohl granted OSH’s
request to dismiss the questionable magistrate mental illness hold, and Spinosa
remained at the hospital under a regular
civil commitment order.
Disability Rights Oregon (DRO)
launched its own investigation following
news reports about Spinosa’s situation, according to Bob Joondeph, the organization’s
executive director.
Upon completion of that investigation,
DRO issued a report in July 2012 that
found Hermann, Axford and Kohl had
acted outside the law in creating and imposing the magistrate mental illness hold. The
legislature makes the law, the report noted,
but in Spinosa’s case the attorneys and judge

“essentially created a new law that allows for
a person with mental illness to be detained
without the elements of due process.”
In September 2013, the Oregon State
Bar rescinded the charges against Hermann
and Axford. “Most notably, the OSB’s case
rested on a belief that Hermann and Axford crafted an order essentially to bypass
Oregon’s civil commitment process in order
to permanently institutionalize a criminal
defendant without due process of law,” the
agency said in a statement. However, the
OSB concluded that the attorneys had
tried to initiate, rather than circumvent,
civil commitment proceedings.
Hermann said the OSB had made
the right decision, and noted the case had
prompted the state legislature to pass Senate Bill 421 in July 2013, which created new
civil commitment procedures for people
who are mentally ill and deemed “extremely
dangerous.”
In other words, the legislature created
the law that did not exist when Hermann,
Axford and Judge Kohl ordered Spinosa to
be held indefinitely at OSH.
Source: The Oregonian

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Prison Legal News

29

April 2014
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3/10/14 10:58 AM

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 33 of 67

Montana: Hospitalized Prisoner Entitled
to Continuance in Divorce Case

T

he Montana Supreme Court held
on March 5, 2013 that refusing to
grant a hospitalized prisoner’s motion for
continuance of a divorce trial was an abuse
of discretion.
David and Lori Eslick were married
on August 15, 2005. In December 2010,
David began serving a sentence in the
Montana State Prison (MSP), and Lori
filed for divorce.
David was unrepresented and appeared
telephonically at all court hearings. A June
12, 2012 pretrial conference and June 25,
2012 trial were scheduled. David failed to
appear at the pretrial conference, which was
rescheduled for June 19, 2012.
David’s failure to appear or communicate with opposing counsel and the court
was due to an unexpected medical emergency. On May 5, 2012, he was hospitalized
for amputation of septic toes and part of his
foot as a result of diabetes. Due to complications he remained hospitalized until June
11, 2012, then was confined in the MSP
infirmary for the following week.
David did not receive his mail and
could not attend court proceedings during
this time, or schedule phone calls with the
trial court. On June 18, 2012 he mailed
a motion to the court seeking a 60-day
continuance.
When David did not appear at the June
19, 2012 pretrial hearing, the court entered
a default judgment against him on June
26, 2012, dissolving the marriage, despite
having received his motion requesting a
continuance.
The Montana Supreme Court reversed,

concluding that “David has demonstrated
good cause for granting his motion for a
continuance. David’s unexpected medical emergency and the conditions of his
incarceration were circumstances beyond
his control that prevented his appearance
at the final pretrial conference.”
The Court also concluded that David

had suffered prejudice, as the trial court had
“entered its findings of fact, conclusions of
law, and default decree of dissolution without the benefit of David’s arguments.” The
case was therefore reversed and remanded
for a new pretrial conference and trial. See:
In re Marriage of Eslick, 2013 MT 53, 304
P.3d 372 (Mont. 2013).

Arkansas Suing Prisoners
for Incarceration Costs

A

rkansas officials are suing prisoners under the State Prison Inmate
Care and Custody Reimbursement Act
(Act), seeking reimbursement for the costs
of their incarceration by obtaining court
orders and seizing money from their prison
trust accounts.
For example, a state court entered
an order requiring prisoner Michael R.
MacKool to pay reimbursement costs, and
the state sought a similar judgment against
prisoner Deral Plunk. Both were subject to
orders that confiscated the funds in their
accounts for placement in a court account
pending the outcome of the litigation.
MacKool is serving a cumulative 60year sentence for first-degree murder and
theft of property. In October 2010, Arkansas filed a petition against him in state court
under the Act. Following a show-cause
hearing, $5,016.61 in MacKool’s prison
account was ordered deposited into the
state treasury; he appealed that judgment,
which was affirmed. See: MacKool v. State,
2012 Ark. 287 (Ark. 2012).

On rehearing, he argued the court
had incorrectly held that his lack-of-dueprocess argument had not been presented
to the circuit court. Next, he claimed money
he had received from his mother was not
part of his “estate” as that term is used in the
Act. Finally, he argued his equal protection
rights had been violated.
The due process claim was based on
the funds in MacKool’s prison account
being ordered confiscated on October 18,
2010, but the court did not provide him
with notice until over two weeks later. The
Arkansas Supreme Court found the only
time that MacKool pointed to this issue
was during opening statements, which the
Court held is not an occasion for argument;
an opening statement is an outline of the
evidence to be introduced and the nature of
the issues to be tried. Thus, MacKool had
failed to properly present the due process
argument before the circuit court and could
not raise it on appeal.
As to the definition of “estate,” the
Supreme Court held the plain language of

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April 2014

30

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 34 of 67

the Act “reflects that any money received
by an inmate, including a gift from a family
member, is part of his ‘estate’ for purposes
of this statute.” Finally, the Court refused
to hear the equal protection claim because
MacKool had failed to raise it in his original
briefs. See: MacKool v. State, 2012 Ark. 341
(Ark. 2012).
The state also filed a petition under
the Act to seek reimbursement of incarceration costs from prisoner Deral Plunk.
It secured an order to confiscate $7,007.47
from his prison account to hold in a court
account until the litigation was concluded.
Plunk moved to dismiss the action, and the
state moved to transfer the case to another
circuit court.
That court denied Plunk’s motion but
granted the state’s motion. Plunk appealed.
The Arkansas Supreme Court held that
because neither part of the order constituted a final order, it was unappealable. As
a result, Plunk’s motion to proceed in forma
pauperis on appeal was denied. See: Plunk
v. State, 2012 Ark. 362 (Ark. 2012).
More recently, on October 31, 2013,
a U.S. District Court in Arkansas ruled
against state prisoner Michael Williams,

who challenged the seizure of funds from
his prison account that he had received as a
judgment in a § 1983 lawsuit against jailers
at the Miller County Detention Center. In
March 2013, the district court had awarded
Williams $10,350 in damages and costs
in the suit. Pursuant to a state court order
under the Act, however, $8,530.95 was confiscated from the judgment funds after they
were deposited in his prison account.
Williams moved the district court to
enjoin the state from seizing the judgment
awarded in his § 1983 suit, which the court
construed as a motion under Fed.R.Civ.P.
69, “invoking the Court’s inherent power
to enforce its judgments.” However, the
district court held it did not have jurisdiction to grant the motion after the judgment
had been satisfied by the payment of funds
to Williams.
The court noted that the Eighth Circuit “has previously held a state may not
attach to section 1983 judgment proceeds
awarded to an inmate for the purpose of
recouping incarceration costs,” citing Hankins v. Finnel, 964 F.2d 853 (8th Cir. 1992);
however, “the facts presented here do not
fit within the narrow parameters of that

precedent.” The district court found that
the prohibition against the state’s seizure
of funds obtained in a § 1983 lawsuit for
reimbursement of incarceration costs does
not apply when the judgment in the suit
was obtained from a non-state party – in
this case, from Miller County.
“Therefore, the entity paying Williams’s judgment proceeds and the entity
seeking to attach to the judgment proceeds
are entirely distinct, thus, eliminating
any Hankins type concerns over the deterrent effect of a section 1983 award,” the
district court concluded. See: Williams v.
Rambo, U.S.D.C. (W.D. Ark.), Case No.
4:09-cv-4088; 2013 U.S. Dist. LEXIS
156458 (W.D. Ark. 2013).

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Prison Legal News

31

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 35 of 67

Texas: False Arrest and Malicious Prosecution
Result in $411,865.18 Recovery

A

Texas probationer subjected to
false arrest and malicious prosecution
has been awarded $169,000 in damages plus
attorneys’ fees and costs.
Thomas Hannon, 37, unemployed and
on probation, had an outstanding arrest
warrant for probation revocation. Dallas
police knew he was at a local hotel, and
on August 1, 2007, police officers arrested
several people, including Hannon, at the
hotel in connection with a black bag that
contained drugs, a .357 revolver and materials related to identity theft. Hannon
was jailed on gun, drug and identity theft
charges. He was exonerated and released
more than 10 months later.
Hannon sued several police officers,
but only his claims against officers Jerry
Dodd, David Nevitt and Randy Sundquist
survived to reach trial. The evidence showed
that when the officers arrived at the hotel,
Hannon had been waiting for a ride. He
was not part of the initial arrest and began
walking down the highway.
Police officers were notified that Hannon was walking away, and pursued and
arrested him. Prior to the arrest, Hannon
had been with a friend. The friend was
carrying the black bag with the gun and
drugs, but Hannon contended he was never
in possession of the bag or knew what it
contained.
The police report prepared by Dodd
indicated that Nevitt saw Hannon with the
bag before the arrest; Nevitt never indicated
in the report that he saw Hannon possess
the bag, but he later testified to that fact.
Nevitt further testified that he never dealt

April 2014

with the hotel clerk.
It was proven that Nevitt lied. Surveillance video showed Hannon’s friend had the
bag and Hannon was never in possession
of it. The clerk testified that Nevitt had in
fact requested a copy of the surveillance
video from him. Hannon contended that
Dodd and Nevitt falsified the police report
to maliciously prosecute him; he also noted
that Dodd failed to inform federal officials,
who were investigating the identify theft,
that he had been exonerated.
With respect to injuries, Hannon
conceded he would have been arrested in
any event and required to serve a month
on the probation revocation, but said he
remained jailed for 10 months as a result
of the false arrest and malicious prosecution, which caused him severe depression
and anxiety.
On February 3, 2012, a federal jury
found that Hannon did not possess the
bag and Dodd and Nevitt had violated his
rights. Hannon was awarded $93,500 for
mental anguish and wrongful confinement

against Nevitt and Dodd jointly and severally, $500 in punitive damages against Dodd
and $75,000 in punitive damages against
Nevitt, for a total of $169,000.
On March 14, 2013, the district court
denied the defendants’ motions for a new
trial and judgment as a matter of law.
The court also awarded attorneys’ fees to
Hannon in the amount of $241,042.73,
plus $1,591.81 in attorneys’ costs and
$4,414.16 in Hannon’s costs. The court
further awarded $2,591.71 in costs against
Hannon in favor of defendant Sundquist,
who prevailed at trial.
On May 8, 2013, pursuant to a joint
motion filed by the parties, the district
court vacated the judgment and dismissed
the case after a settlement was reached in
which the City of Dallas agreed to pay a
total of $411,865.18 in combined damages, attorneys’ fees and costs. Hannon
was represented by Dallas attorneys Scott
Palmer and John E. Wall, Jr. See: Hannon
v. Nevitt, U.S.D.C. (N.D. Tex.), Case No.
3:09-cv-00066-N.

California Supreme Court: Challenge
to Booking Fee Order Forfeited Due
to Failure to Object in Trial Court

O

n April 22, 2013, the Supreme
Court of California, resolving a conflict among lower state courts, held that a
defendant who fails to contest a jail booking
fee order when it is imposed forfeits the
right to challenge the order on appeal.
After pleading no contest to being a
convicted felon in possession of a firearm,
Antoine J. McCullough was sentenced to
a state prison term of four years. When
imposing the sentence, the trial court also
ordered McCullough to pay a jail booking
fee of $270.17.
On appeal, McCullough argued that
although he had not objected when the
trial court imposed the booking fee, he was
entitled to challenge it for the first time on
appeal because the evidence was insufficient
to support a finding that he was able to pay
the fee.
The Court of Appeal affirmed the
booking fee order, holding that Mc-

32

Cullough’s failure to object in the trial
court meant he had forfeited his right to
challenge the imposition of the fee on appeal. The California Supreme Court granted
review to resolve a split among the appellate
courts on this question.
The Supreme Court initially held, as a
matter of statutory construction, that the
state law which authorizes the imposition
of a booking fee – Government Code §
29550.2, subd. (a) – requires the trial court,
before ordering payment, to determine the
defendant’s ability to pay. The Court then
cited the general rule that a right may be
forfeited if the defendant fails to timely
assert it, and found no reason to deviate
from that rule with respect to McCullough’s
challenge to the booking fee order.
Accordingly, the judgment of the
Court of Appeal was affirmed. See: People
v. McCullough, 56 Cal. 4th 589, 298 P.3d
860 (Cal. 2013).
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 36 of 67

State of Washington
Prison Phone Justice Campaign!
Prison Phone Justice Project needs your help for statewide campaign!

W

hile much progress has been made in reducing the costs of long distance prison calls, we are

still fighting to reduce the high costs of in-state prison and jail calls at the local level. In Janu-

ary 2014, the Human Rights Defense Center (HRDC), the parent organization of Prison Legal News,
reopened its Seattle office to launch the Washington Prison Phone Justice Campaign.

This is our first statewide phone justice campaign, and we’re excited to have people involved on both
the local and national levels who are dedicated to ending the exorbitant phone rates and kickbacks

associated with the prison phone industry. David Ganim, HRDC’s national Prison Phone Justice Di-

rector, has already been obtaining the phone contracts and rates for all 39 county jails in Washington,
as well as data from the Washington Department of Corrections.

We recently hired a local campaign director, Carrie Wilkinson, who will manage our office in Seattle

and coordinate the statewide campaign. Washington prisoners and their families pay some of the
highest phone rates in the nation, and we need your help to win this battle!

Here’s how you can help – first, please visit the Washington campaign website:

www.wappj.org
There you can see all the ways you can make a difference. The site allows you to sign up for the campaign and upload videos and share blog entries about how high prison phone rates make it difficult

for you to stay in touch with your incarcerated loved ones. You can also upload an audio message,

and even call in your story to 1-877-410-4863, toll-free 24 hours a day, seven days a week! We need

to hear how you and your family have been affected by high prison phone rates. If you don’t have
Internet access, you can mail us a letter describing your experiences and we’ll post it. Send letters to

HRDC’s main office at: HRDC, Attn: WA Phone Justice Campaign, P.O. Box 1151, Lake Worth, FL
33460. Washington state prisoners can mail us letters and send a copy of this notice to their family
members so they can get involved.

By choosing to participate in the Washington Prison Phone Justice Campaign, you will be playing
a key role in ending the unfair phone rates that prisoners’ families have to pay. We cannot win this

battle without your help, so please visit the campaign website and share your experiences! Donations
are also welcome and greatly appreciated, and can be mailed to the above address or made online
via the campaign site. Thank you for your support!

Prison Legal News

33

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 37 of 67

Study: TASER Shocks May Cause Fatal Heart Attacks
by Matt Clarke

A

study involving eight people who
lost consciousness immediately after
being shocked by a TASER X26 – the most
common electronic control device (ECD)
used by police, corrections agencies and the
military – concluded that ECD shocks can
induce fatal cardiac arrest by causing cardiac “capture” and ventricular tachycardia/
ventricular fibrillation (VT/VF). Seven
of the eight persons profiled in the study
died while the eighth suffered memory
impairment after receiving a near-fatal
shock, according to an article published in
Circulation, the journal of the American
Heart Association.
The eight subjects of the peer-reviewed
study were all male, ranging from 16 to 44
years old. Six were under the age of 25. All
were struck in the chest with barbs from a
TASER X26, a handgun-shaped weapon
that fires the barbs with attached conductive wires using compressed nitrogen. The
device delivers an initial 5,000-volt shock,
followed by rapid micro-pulsing that is
designed to mimic the electrical signals
used by the brain to communicate with the
muscles. The standard shock cycle lasts five
seconds but can be shortened or repeated
by the user.
The study found that a TASER shock
“can cause cardiac electric capture and
provoke cardiac arrest” resulting from an
abnormal, rapid heart rate and uncontrolled, fluttering heart contractions. The
journal article on the study’s findings was
authored by Dr. Douglas Zipes, with the
Krannert Institute of Cardiology at Indiana
University.
Scottsdale, Arizona-based TASER
International, Inc., which manufactures
the ECD devices, strongly defended its
products. Company spokesman Steve Tuttle
noted that with only eight subjects in the
study, “broader conclusions shouldn’t be
drawn based on such a limited sample.”
“There have been 3 million uses of
TASER devices worldwide, with this case
series reporting eight of concern,” he added.
“This article does not support a cause-effect
association and fails to accurately evaluate
the risks versus the benefits of the thousands of lives saved by police with TASER
devices.”
The company’s website boasts that
April 2014

TASERs have saved nearly 125,000 lives,
and that “Every Day TASER CEWs
[Conducted Electrical Weapons] are
Used 904 Times, Saving a Life f rom
Potential Death or Serious Injury Every
30 Minutes.” The site also quotes a Wake
Forest University study which found
that “in 1,201 cases, 99.75% [of ] people
subjected to a TASER CEW had no
significant injuries.”
Research published by USA Today
in May 2012 indicated that the use of
TASERs by police has saved lives because
officers are less likely to kill someone using a TASER than by shooting them. The
research also found that TASERs reduced
the number of injuries suffered by police
officers when apprehending suspects.
Tuttle questioned whether Dr. Zipes
might have possible bias because he had
testified as an expert witness in lawsuits
against TASER. “There are key facts that
contradict the role of the TASER device in
all of these cited cases, and Dr. Zipes has
conveniently omitted all facts that contradict his opinion,” Tuttle said.
However, Amnesty International reported in February 2012 that more than 500
post-ECD-shock deaths occurred following TASER deployments between 2001 and
2008. Further, a report from a commission
of inquiry into the death of a man at the
Vancouver airport in Canada concluded
there was evidence “that the electric current
from a conducted energy weapon is capable
of triggering ventricular capture ... and that
the risk of ventricular fibrillation increases
as the tips of the probes get closer to the
walls of the heart.”
Other studies, including a 2011 report
by the ACLU of Arizona, have also identified problems with the use of TASERs
by law enforcement agencies. [See: PLN,
April 2012, p.26]. Prior to Dr. Zipes’ research, though, no peer-reviewed study had
concluded that ECD shocks can induce
ventricular fibrillation leading to sudden
cardiac arrest and death.
TASER published an eight-page warning in March 2013 that stated, “exposure
in the chest area near the heart has a low
probability of inducing extra heart beats
(cardiac capture). In rare circumstances,
cardiac capture could lead to cardiac arrest.

34

When possible, avoid targeting the frontal
chest area near the heart to reduce the risk
of potential serious injury or death.”
In November 2013, TASER submitted a statement to the U.S. Securities and
Exchange Commission (SEC) indicating
that the company would pay a total of $2.3
million in settlements in product liability
lawsuits. The statement said the settlements
were intended to end legal battles over
TASER-related “suspect injury or death.”
TASER also changed the warning
labels on its ECD products. The company used to tout TASERs as delivering
“non-lethal” shocks, but following several
TASER-related deaths the language was
changed in 2009 to read “less lethal.”
Company training manuals now state that
“exposure in the chest area near the heart
... could lead to cardiac arrest.”
The eight subjects in the study authored
by Dr. Zipes were all clinically healthy. They
were hit with one or both TASER barbs in
the anterior chest wall near the heart, and
all lost consciousness during or immediately
after being shocked. In six cases, the first
recorded heart rhythms were VT/VF. One
had no heart rhythm, and in the eighth
subject an external defibrillator reported a
shockable rhythm but did not record it.
Two of the subjects had structural
heart disease, two had elevated blood alcohol levels and two had both. The study
concluded, however, that those conditions
were considered unlikely to be the cause
of the sudden loss of consciousness that
occurred at the time or immediately after
they received TASER shocks, although the
conditions may have increased the likelihood of ECD-induced VT/VF.
The study also concluded it was unlikely that other known causes of in-custody
death, such as “excited delirium” or restraint
asphyxia, were factors in the deaths of seven
of the eight subjects due to the proximity
of the TASER shock to the loss of consciousness.
Dr. Zipes’ research noted that studies
in pigs, sheep and humans established that
shocks across the chest from the TASER
X26 and a new prototype ECD could cause
cardiac capture. The pig studies also repeatedly showed that the TASER X26 could
induce VT/VF at normal or higher-thanPrison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 38 of 67

normal outputs. Similar studies attempting
to induce VT/VF by placing the barbs
in the anterior chest and using strong,
multiple and/or lengthy shocks could not
be conducted on humans due to ethical
considerations.
Of course, such considerations do not
prevent police officers from using TASERs

on suspects, or prison and jail guards from
deploying TASERs against prisoners.

Sources: “Sudden Cardiac Arrest and Death
Associated with Application of Shocks from a
TASER Electronic Control Device,” by Douglas P. Zipes, M.D. (May 2012); www.taser.
com; USA Today, www.theverge.com

Texas Court Holds CCA is a “Governmental
Body” for Purposes of Public Records Law

O

n March 19, 2014, a state district
court in Travis County, Texas held
that Corrections Corporation of America
(CCA), the nation’s largest for-profit prison
company, is considered a “governmental
body” for purposes of the state’s Public
Information Act and therefore subject to
the Act’s “obligations to disclose public
information.”
The court entered its ruling on a motion for summary judgment filed by Prison
Legal News, which had brought suit against
CCA in May 2013 after the company
refused to produce records related to the
now-closed Dawson State Jail in Dallas –
including reports, investigations and audits
regarding CCA’s operation of the facility.
[See: PLN, June 2013, p.46]. Such records
would have been made public had the jail
been operated by a government agency.
“This is one of the many failings of
private prisons,” said PLN managing editor Alex Friedmann. “By contracting with
private companies, corrections officials
interfere with the public’s right to know
what is happening in prisons and jails,
even though the contracts are funded with
taxpayer money. This lack of transparency
contributes to abuses and misconduct by
for-profit companies like CCA, which prefer secrecy over public accountability.”
CCA currently operates nine facilities
in Texas, including four that house state
prisoners.
“The conditions of Texas prisons have
been the focus of intense public scrutiny for
nearly 40 years,” stated Brian McGiverin,
an attorney with the Texas Civil Rights
Project. “Today’s ruling is a victory for
transparency and responsible government.
Texans have a right to know what their
government is doing, even when a private
company is hired to do it.”
In its summary judgment motion, PLN
argued that CCA meets the definition of a
Prison Legal News

governmental body under the state’s Public
Information Act, Section 552.003 of the
Texas Government Code, because, among
other factors, the company “shares a common
purpose and objective to that of the government” and performs services “traditionally
performed by governmental bodies.”
In the latter regard, PLN noted that
“Incarceration is inherently a power of government. By using public money to perform
a public function, CCA is a governmental
body for purposes” of the Public Information Act. CCA’s argument to the contrary
– that it is not a governmental body and
therefore does not have to comply with
public records requests – was rejected by
the district court.
CCA had also argued that the taxpayer
funds it receives from the State of Texas
“are not necessarily used specifically for
operating Texas facilities,” and that such
payments “are used generally to support
CCA’s corporate allocations throughout
the United States.”
PLN previously prevailed in a similar
public records lawsuit against CCA in Tennessee, where the firm is headquartered;
another records suit filed by PLN is pending
against CCA in Vermont. The company has
vigorously opposed lawsuits requiring it to
comply with public records laws. [See: PLN,
July 2013, p.42; June 2013, p.14].
“CCA and other private prison companies should not be able to hide behind
closed corporate doors when they contract
with government agencies to perform
public services using taxpayer money,” said
PLN editor Paul Wright.
PLN was ably represented by attorneys
Cindy Saiter Connolly with Scott, Douglass
& McConnico, LLP and Brian McGiverin
with the Texas Civil Rights Project. See:
Prison Legal News v. CCA, Travis County
District Court (TX), Cause No. D-1-GN13-001445.

35

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April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 39 of 67

Mass Incarceration: The Whole Pie
A Prison Policy Initiative briefing

W

ait, does the United States have
1.4 million or more than 2 million
people in prison? And do the 688,000 people released every year include those getting
out of local jails? Frustrating questions like
these abound because our systems of federal,
state, local and other types of confinement
– and the data collectors that keep track of
them – are so fragmented. There is a lot of
interesting and valuable research out there,
but definitional issues and incompatibilities
make it hard to get the big picture for both
people new to criminal justice and for experienced policy wonks.
On the other hand, piecing together
the available information offers some clarity.
This briefing presents the first graphic we’re
aware of that aggregates the disparate systems of confinement in this country, which
hold more than 2.4 million people in 1,719
state prisons, 102 federal prisons, 2,259
juvenile correctional facilities, 3,283 local
jails and 79 Indian Country jails as well as
in military prisons, immigration detention
facilities, civil commitment centers and
prisons in U.S. territories.1
While the numbers in each slice of this
pie chart represent a snapshot cross section
of our correctional system, the enormous
churn in and out of confinement facilities
underscores how naive it is to conceive of
prisons as separate from the rest of our
society. In addition to the 688,000 people
released from prisons each year,2 almost
12 million people cycle through local jails
annually.3 Jail churn is particularly high
because at any given moment most of the
722,000 people in local jails have not been
convicted and are incarcerated because they
are either too poor to make bail and are
being held before trial, or because they’ve
just been arrested and will make bail in the
next few hours or days. The remainder of the
people in jail – almost 300,000 – are serving
time for minor offenses, generally misdemeanors with sentences under a year.
So now that we have a sense of the
bigger picture, a natural follow-up question
might be something like: how many people
are locked up in any kind of facility for a
drug offense? While the data don’t give us
a complete answer, we do know that it’s
237,000 people in state prison, 95,000 in
April 2014

by Peter Wagner and Leah Sakala
federal prison and 5,000 in juvenile facilities, plus some unknowable portion of the
population confined in military prisons,
territorial prisons and local jails.
Offense figures for categories such
as “drugs” carry an important caveat here,
however: all cases are reported only under
the most serious offense. For example,
a person who is serving prison time for
both murder and a drug offense would
be reported only in the murder portion of
the chart. This methodology exposes some
disturbing facts, particularly about our juvenile justice system. For example, there are
nearly 15,000 children behind bars whose
“most serious offense” wasn’t anything that
most people would consider a crime. Almost 12,000 children are behind bars for
“technical violations” of the requirements
of their probation or parole, rather than
for a new criminal offense, and more than
3,000 children are behind bars for “status”
offenses, which are, as the U.S. Department
of Justice explains, “behaviors that are not
law violations for adults, such as running
away, truancy, and incorrigibility.”4
Turning finally to the people who are
locked up because of immigration-related
issues, more than 22,000 are in federal
prison for criminal convictions of violat-

36

ing federal immigration laws. A separate
34,000 are technically not in the criminal
justice system but rather are detained by
U.S. Immigration and Customs Enforcement (ICE), undergoing the process of
deportation, and are physically confined
in immigration detention facilities or in
one of hundreds of individual jails that
contract with ICE.5 (Notably, those two
categories do not include the people
represented in other pie slices who are in
some early stage of the deportation process
due to non-immigration-related criminal
convictions).
Now that we can, for the first time,
see the big picture of how many people are
locked up in the United States in the various
types of facilities, we can see that something
needs to change. Looking at the big picture
requires us to ask if it really makes sense to
imprison 2.4 million people on any given
day, giving us the dubious distinction of
having the highest incarceration rate in the
world. Both policy makers and the public
have the responsibility to carefully consider each individual slice of the pie chart
in turn, to ask whether legitimate social
goals are served by putting each category
behind bars and whether any benefit really
outweighs the social and fiscal costs. We’re

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 40 of 67

optimistic that this whole-pie approach6
can give Americans, who seem increasingly ready for a fresh look at the criminal
justice system, some of the tools they need
to demand meaningful changes to how we
do justice.

Notes on the Data
This briefing draws the most recent data
available as of March 13, 2014 from:
• Jails: Bureau of Justice Statistics,
Jail Inmates at Midyear 2012 - Statistical
Tables, page 1 and Table 3, reporting data
for June 30, 2012.
• Immigration detention: “Congress
Mandates Jail Beds for 34,000 Immigrants
as Private Prisons Profit,” Bloomberg News,

Sept. 24, 2013.
• Federal: Bureau of Justice Statistics,
Prisoners in 2011, page 1 and Table 11,
from data as of December 31, 2011.
• State Prisons: Bureau of Justice Statistics, Prisoners in 2011, Table 9, reporting
data as of December 31, 2010.
• Military: Bureau of Justice Statistics,
Correctional Populations in the United
States, 2012, Appendix Table 2, reporting
data for December 31, 2012.
• Territorial Prisons, Prisons in U.S.
territories (American Samoa, Guam and
the U.S. Virgin Islands) and U.S. commonwealths (Northern Mariana Islands
and Puerto Rico): Correctional Populations
in the United States, 2012, Appendix Table

2, reporting data for 2012 – includes both
territorial prisons and jails.
• Juveniles: Office of Juvenile Justice
and Delinquency Prevention, Census of
Juveniles in Residential Placement, 2010,
reporting data for February 24, 2010.
• C iv il C ommit ment: D e i d r e
D’Orazio, Ph.D., Sex Offender Civil
Commitment Programs Network Annual
Survey of Sex Offender Civil Commitment
Programs, 2013.
• Indian Country (correctional facilities operated by tribal authorities or the
Bureau of Indian Affairs): Bureau of Justice
Statistics, Correctional Populations in the
United States, 2012, Appendix Table 2,
reporting data for June 29, 2012.

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37

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 41 of 67
Mass Incarceration (cont.)
Several data definitions and clarifications may be helpful to researchers reusing
this data in new ways:
• The state prison offense category of
“public order” includes weapons, drunk
driving, court offenses, commercialized vice,
morals and decency offenses, liquor law
violations and other public-order offenses.
• The state prison “other” category
includes offenses labeled “other/unspecified” (7,900), manslaughter (21,500), rape
(70,200), “other sexual assault” (90,600),
“other violent” (43,400), larceny (45,900),
motor vehicle theft (15,000), fraud (30,800)
and “other property” (27,700).
• The federal prison “other” category includes people who have not been convicted
or are serving sentences of under 1 year
(19,312), homicide (2,800), robbery (8,100),
“other violent” (4,000), burglary (400),
fraud (7,700), “other property” (2,500),
“other public order offenses” (17,100) and
a remaining 7,850 records that could not
be put into specific offense types because
the “2011 data included individuals committing drug and public-order crimes that
could not be separated from valid unspecified records.”
• The juvenile prison “other” category
includes criminal homicide (924), sexual
assault (4,638), simple assault (5,445),
“other person” (1,910), theft (3,759), auto
theft (2,469), arson (533), “other property”
(3,029), weapons (3,013) and “other public
order” (5,126).
• To minimize the risk of anyone in
immigration detention being counted twice,
we removed the 22,870 people – cited in
Table 8 of Jail Inmates at Midyear 2012 –
confined in local jails under contract with
ICE from the total jail population and
from the numbers we calculated for those
in local jails that have not been convicted.
(Table 3 reports the percentage of the jail
population that is convicted (60.6%) and
unconvicted (39.4%), with the latter category also including immigration detainees
held in local jails).
• At least 17 states and the federal government operate facilities for the purposes
of detaining people convicted of sexual
crimes after their sentences are complete.
These facilities and the confinement there
are technically civil, but in reality are quite
like prisons. They are often run by state
April 2014

prison systems, are often located on prison
grounds and, most importantly, the people
confined there are not allowed to leave.

Acknowledgements
Thanks especially to Drew Kukorowski for
collecting the original data for this project
and to [PLN managing editor] Alex Friedmann for both identifying ways to update
the data and for locating the civil commitment data. We thank Tracy Velázquez and
Josh Begley for their insights on how to
use color to tell this story. Thanks to Holly
Cooper, Cody Mason and Judy Greene for
helping untangle the immigration-related
statistics. Thanks also to Arielle Sharma
and Sarah Hertel-Fernandez for their copy
editing assistance.
This briefing was published by the Prison Policy
Initiative (www.prisonpolicy.org) on March
12, 2014; it is reprinted with permission.

ENDNOTES
1 The number of state and federal facilities is from
Census of State and Federal Correctional Facilities,
2005; the number of juvenile facilities from Census of
Juveniles in Residential Placement, 2010; the number of
jails from Census of Jail Facilities, 2006 and the number

of Indian Country jails from Jails in Indian Country,
2012. We aren’t currently aware of a good source of data
on the number of the other types of facilities.
2 U.S. Department of Justice, Prisoners in 2011,
page 1, reporting that 688,384 people were released
from state and federal prisons in 2011. [Ed. note – the
number of releases dropped to 637,400 in 2012]
3 See page 3 of Bureau of Justice Statistics, Jail
Inmates at Midyear 2012 - Statistical Tables for this
shocking figure of 11.6 million.
4 See Office of Juvenile Justice and Delinquency
Prevention, Census of Juveniles in Residential Placement, 2010, page 3.
5 Of all of the confinement systems discussed
in this report, the immigration system is the most
fragmented and the hardest to get comprehensive data
on. We used “Congress Mandates Jail Beds for 34,000
Immigrants as Private Prisons Profit,” Bloomberg
News, Sept. 24, 2013. Other helpful resources include
Privately Operated Federal Prisons for Immigrants:
Expensive. Unsafe. Unnecessary; Dollars and Detainees:
The Growth of For-Profit Detention; and The Math of
Immigration Detention.
6 It is important to remember that the correctional system pie is far larger than just prisons and
includes another 3,981,090 adults on probation and
851,662 adults on parole. See Bureau of Justice Statistics, Probation and Parole in the United States, 2012,
Appendix Tables 2 and 4.

New York Prisoner Secures Court Order
for Visitation with Child

T

he New York Court of Appeals
upheld a lower court’s ruling that granted an incarcerated father visitation rights
with his three-year-old child. The Court
held the lower court had properly applied
a legal standard that presumes in favor of
visitation and considers whether that presumption is rebutted by evidence showing
visits would be harmful to the child.
The petitioner, New York state prisoner
Shawn G. Granger, acknowledged paternity of a child prior to his imprisonment.
He sought an order under the Family
Court Act allowing visitation after the
mother refused to bring the child to see
him in prison.
The family court noted that state law
presumes a child’s best interest is served
by visits with a non-custodial parent, and
“the fact that such parent is incarcerated
is not an automatic reason for blocking
visitation.” The court found that Granger
had been involved in the child’s life prior to
incarceration and had acted to maintain the

38

relationship after he went to prison. Further,
the court determined the child would not
be harmed by travel to the prison and thus
ordered periodic four-hour visits. The Appellate Division affirmed.
The Court of Appeals rejected the
mother’s argument that the family court
had applied the wrong standard of law. It
reaffirmed that “substantial proof ” must be
presented to overcome the presumption in
favor of visitation, including when a parent
is incarcerated. Visits should be denied to a
non-custodial parent upon a showing they
would be harmful to the child, which was
not demonstrated in this case.
The Court declined to consider the
impact of Granger’s subsequent transfer to
a more distant facility, as that issue should
have been the subject of a modification
petition and not presented as an issue of
first impression on appeal. The lower court’s
order was affirmed. See: Matter of Granger
v. Misercola, 21 N.Y.3d 86, 990 N.E.2d 110
(N.Y. 2013).
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 42 of 67

States Renewing Their Prison Phone Contracts
As state DOCs renew or rebid their prison phone contracts, you can help urge them
to eliminate commission kickbacks and lower intrastate phone rates.
The Campaign for Prison Phone Justice needs your help in

***** Kentucky, Alaska and Georgia! *****
The Departments of Corrections in the above states are in the process of re-bidding or renewing their
prison phone contracts. Most DOCs receive a commission (kickback) on revenue generated from calls
made by prisoners, which results in excessively high phone rates. Although the FCC voted last year
to cap the costs of interstate (long distance) prison calls, which went into effect on February 11, 2014,
the order does not apply to intrastate (in-state) calls; an estimated 85% of prison phone calls are instate. This is an opportunity to ask DOCs to forgo commissions and ensure their new prison phone
contracts are based on the lowest cost to those who pay for the calls – mostly prisoners’ families.

Take Action NOW! Here’s What YOU Can Do!
Ask your family members and friends to write, email, call and fax the DOC and the governor’s office
(addresses and contacts are listed below), requesting that the DOC: 1) forgo commission payments
when re-bidding or renewing its prison phone contract, and 2) base the new contract on the lowest
calling cost. Lower prison phone rates should apply not just to long distance calls but also to in-state
calls. For a sample letter or to easily send an email, visit the Campaign for Prison Phone Justice’s
website and click on the “Take Action” tab:

www.phonejustice.org
Prison phone contract information & Contacts:
Kentucky: Receives a 54% kickback; existing contract expires on 5-31-2014. The DOC charges
$4.50 for a 15-minute collect intrastate call and $1.85 for a collect local call. Contacts: Kentucky
DOC, Commissioner LaDonna Thompson, 275 East Main Street, Frankfort, KY 40602; ph: 502-5644726, fax: 502-564-5037, email: ladonna.thompson@ky.gov. Governor Steve Beshear, 700 State
Capitol, Frankfort, KY 40601; ph: 502-564-2611, fax: 502-564-2517, email: governor@ky.gov
Alaska: Receives a 7 to 32.1% kickback; existing contract expires on 6-30-2014. The DOC charges
$2.63 to $7.61 for a 15-minute collect intrastate call (local calls are free). Contacts: Alaska DOC,
Commissioner Joseph Schmidt, 550 W. 7th Ave., Suite 860, Anchorage, AK 99501; ph: 907-465-4652,
fax: 907-465-3390, email: joseph.schmidt@alaska.gov. Governor Sean Parnell, State Capitol, P.O.
Box 110001, Juneau, AK 99811; ph: 907-465-3500, fax: 907-465-3532, email: governor@alaska.gov
Georgia: Receives a 60% kickback; existing contract expires on 6-30-2014. The DOC charges $4.85
for a 15-minute collect intrastate call and $2.70 for a collect local call. Contacts: Georgia DOC Comm.
Brian Owens, 300 Patrol Road, Forsyth, GA 31029; ph: 478-992-5261, fax: 478-992-5259, email:
gdccommish@dcor.state.ga.us. Governor Nathan Deal, 203 State Capitol, Atlanta, GA 30334; ph:
404-656-1776, fax: 404-657-7332, email: khorne@georgia.gov or georgia.governor@gov.state.ga.us

Prison Legal News

39

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 43 of 67

Placing Rival Gang Members in Same
Cell Not Per Se Unconstitutional

T

he Ninth Circuit Court of Appeals applied the harmless error test
in finding that a district court’s late Rand
summary judgment notice did not deprive a
prisoner of substantial rights. Additionally,
the appellate court held prison officials were
not deliberately indifferent to a substantial
risk of violence by placing two rival gang
members in the same cell.
This case involved the appeal of a
Hawaii federal district court’s grant of summary judgment to Corrections Corporation
of America and CCA guards at the Saguaro
Correctional Center (SCC) in Arizona. The
suit was brought by Hawaii state prisoner
Keone Labatad, who was housed at SCC
and assaulted by another prisoner on July
23, 2009.
Three days earlier, Labatad, a member
of the La Familia gang, got into a fight
with Howard Giddeons, a member of the
USO Family gang. Both told guards that
the fight was not gang-related and they
had shook hands afterwards. Following
procedure, both were placed in administrative segregation.
Labatad was put in a cell with Shane
Mara, a USO Family gang member. On
the day of the assault, Mara waited until
Labatad was in hand restraints in preparation for leaving the cell; he then hit Labatad
in the head and back, causing a welt and a
bloody nose.
Labatad filed a civil rights action alleging his Eighth Amendment rights were
violated by a general policy at SCC that
allowed rival gang members to be housed
in the same cell, as well as the specific
decision to place him in a cell with Mara.
He sought damages and injunctive relief,
and the defendants moved for summary
judgment.
The day after Labatad filed a detailed
response to the motion, the district court
sent him the summary judgment notice
required under Rand v. Rowland, 154 F.3d
952 (9th Cir. 1998) [PLN, April 1999, p.19].
The purpose of the Rand notice is to provide
a pro se prisoner litigant “fair notice” of his
“rights and obligations under Rule 56,” his
“right to file counter-affidavits or other
responsive evidentiary materials and be
alerted to the fact that failure to do so might
result in the entry of summary judgment
April 2014

against” him, and “the effect of losing on
summary judgment.” The court granted the
defendants’ motion and Labatad appealed.
The Ninth Circuit held the district
court’s delay in sending the Rand notice
was error, but held this was “one of the
unusual cases” where the error was harmless because “the record, viewed objectively,
shows that Labatad knew and understood
the information in the Rand notice before
he received it.”
The district court found that SCC’s
policy of permitting members of different
gangs to be housed together in the same cell
was not itself an Eighth Amendment violation. At oral argument, Labatad clarified
he was not asserting a per se constitutional
violation; instead, he was alleging the defendants were deliberately indifferent to the

risk of harm resulting from his cell assignment with Mara, a rival gang member.
Viewing the record objectively and
subjectively, the Ninth Circuit found the
evidence was insufficient to preclude summary judgment on that claim. Mara and
Labatad had been in general population for
an extended period of time without threats
or problems between them, they were not
listed as “separatees,” and prison officials
had been assured the fight between Labatad and Giddeons was resolved and not
gang-related. In sum, there were no facts to
suggest that Labatad was at substantial risk
of harm when he was housed with Mara.
The district court’s order granting
summary judgment to the defendants was
affirmed. See: Labatad v. CCA, 714 F.3d
1155 (9th Cir. 2013).

GPS Monitoring System in Los Angeles
Plagued by False Alerts, Ignored Alarms
by Christopher Zoukis

L

os Angeles County’s GPS monitoring system, designed to keep track of
high-risk probationers, has overwhelmed
probation officers with thousands of false
alerts each day – so many that some officers
simply ignore them. As a result, dozens
of probationers have been able to roam
unmonitored. In some cases, even when
probationers removed their monitoring
devices, the removal was not discovered for
lengthy periods of time.
GPS monitors are used to track the highest-risk probationers and parolees, including
sex offenders. A massive shift of prisoners
from state prisons to county jails under
California’s “realignment” legislation has led
some counties to release hundreds of low-level
offenders on electronic monitoring as a way to
cut costs and reduce jail overcrowding.
The GPS system in Los Angeles
County picks up satellite signals and transmits the data over cellular networks to a
central computer. The system is designed to
send an alert to a probation officer under a
variety of circumstances; for example, if a
probationer tries to remove the monitor or
enter a designated prohibited area, or if the
GPS batteries run down. The GPS devices

40

send alerts for a number of routine reasons,
too, such as when the signal is blocked by a
building or if the monitor has a loose strap
or damaged case.
According to probation officers, there
is no easy way to distinguish the cause of
the alert. Thus, a prolonged lost monitoring signal might mean the probationer has
absconded or simply that the signal is being
blocked due to a building’s structure.
County officials say they have been
“overwhelmed” with thousands of alarms
each day. Most are relatively meaningless,
for low battery warnings or blocked signals,
and are ignored or deleted by probation
officers. Others are more serious; 80 probationers removed their GPS devices in
2013, and in one case an offender went
unmonitored for 45 days.
“If a person’s not being properly monitored or supervised, then what’s going to
stop them from taking it off and leaving?”
asked Dwight Thompson, a representative
for the union that represents Los Angeles
County probation officers. “If they take it
off, what was the point of putting it on?”
A field test in 2011 found that GPS
devices used to monitor California sex ofPrison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 44 of 67

fenders transmitted no signal 55 percent
of the time, and PLN previously reported
that thousands of sex offenders in the state
had removed their GPS monitors or committed monitoring violations, as there were
few repercussions for doing so. [See: PLN,
April 2013, p.18].
A November 13, 2013 corrective action notice sent by the Los Angeles County
Probation Department to Sentinel Offender
Services, the company that provides the
county’s GPS system, indicated that one in
four GPS devices were faulty – they generated
too many false alarms or had defective batteries. Sentinel blamed poorly-trained probation
officers and probationers who didn’t follow
instructions for properly charging their GPS
monitors. [See: PLN, Jan. 2014, p.18]. The
company has increased training and replaced
the monitors with more recent models.
Private companies that provide GPS
monitoring services may be more interested
in generating profit than ensuring public
safety – one of several concerns related to
the increased use of electronic monitoring.
[See: PLN, March 2012, p.20].
While faulty equipment doesn’t help
matters, Los Angeles County also has the

GPS system set up to send an email alert Matthew DeMichele, a former researcher
to a probation officer when a probationer for the American Probation and Parole
passes through, or travels close to, a pro- Association, and coauthor of the Justice
hibited area – such as when sex offenders Department’s guide on electronic moniare near schools or parks. There are some toring. GPS monitoring systems simply
4,900 prohibited areas in the county, about don’t provide the level of accountability and
one every square mile. This makes it almost security that they claim, he added: “In some
impossible for a probationer to go anywhere ways, GPS vendors are selling law enforcewithout triggering alerts, and thousands of ment agencies, politicians, the public a false
bag of goods.”
those alarms are generated each month.
“Just riding the Red Line [public transportation] would set off 10 alerts, passing Sources: Associated Press, www.latimes.com,
schools on the way,” noted John Tuchek, www.utsandiego.com, http://arstechnica.com
a vice-president for
the Association of
Probation SuperviFULTON & WELCH
sors who also works
TEXAS PAROLE
as a probation officer.
ATTORNEYS
“If we keep getting
false positives, we’re
o AFFORDABLE
not going to know
o PERSONALIZED PACKET
the real ones that
o 2 HEARINGS
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o MEET WITH YOU & FAMILY
“ W hen these
aler ts are in the
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seems like an unwin10701 Corporate Dr., Ste. 390,
nable situation,” said

Stafford, Texas 77477

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April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 45 of 67

No Death Penalty for Maine Prisoner
by Lance Tapley

I

n 2008, within a supposedly highsecurity prison in the giant federal
correctional complex in Florence, Colorado,
Gary Watland, a “boarder” from Maine,
murdered another prisoner, white supremacist Mark Baker.
After five and a half years – and after,
probably, millions in taxpayer-paid legal
costs, including for his defense team –
Watland, the only Maine prisoner facing a
possible death penalty, saw federal prosecutors in Denver on February 5, 2014 accept
his offer to spend life behind bars without
the possibility of parole.
However, Watland, 51, already had
accumulated enough time to spend life in
prison. He had been placed in the federal
system after being sentenced to 35 years for
a 2006 escape attempt at the Maine State
Prison, in Warren, where he was serving 25
years for killing a drinking buddy in 2004.
At Warren, Watland had plotted with
his wife to have her smuggle a gun behind
her belt buckle into the prison visitors’
room, where he allegedly planned to kill
guards and anyone else in his way during
the breakout. After a prisoner tipped off authorities, Susan Watland was apprehended
with the loaded gun in the parking lot.
In Colorado, Watland snuck up on
Baker while he was playing poker and
stabbed him in the neck with a homemade
knife. The plea agreement states: “One blow
was to the carotid artery and a second blow
severed the brain stem. Mr. Baker fell to the
floor dead.” Watland maintained he was in
a “kill or be killed” situation. Baker’s prison
gang, the Nazi Low Riders, was allegedly
harassing gays. Defending his life, Watland
came out of the closet.
The feds had wanted to use the arguments that Watland was still dangerous and
had a low chance of rehabilitation to obtain
a death sentence from a jury, but a judge
ruled them out. Shortly after the ruling,
prosecutors accepted the plea bargain.
Watland’s case recently stimulated the
Maine Prisoner Advocacy Coalition to urge
the state Department of Corrections to ban
sending Maine prisoners to jurisdictions
with the death penalty. Maine doesn’t have
capital punishment; the federal government does.
“He’s a classic example of why the
April 2014

death penalty shouldn’t be used,” commented a prisoner who knew him at Warren.
“I believe that Gary Watland is mentally
ill.” In 2007 his mother told The Portland
Phoenix he suffered from bipolar disorder.
He denies any mental illness.
Originally from California, Watland
re-established his relationship with his parents and teenage daughter during his years
awaiting trial in the solitary-confinement
ADX prison, which also is in the federal
complex in Florence.
“He’s grown as a person over the time I’ve
known him,” defense attorney Patrick Burke
told the Phoenix.“I think he’ll continue to make

a contribution to his family and friends.”
Any future contribution Watland
makes will likely be f rom the austere
isolation of the most dreaded supermax
in America. Although the U.S. Bureau of
Prisons will decide where Watland will be
kept, expectations are he will continue to
be held at ADX. If he were allowed into a
prison’s general population, he would risk
being killed in gang revenge.
This article was originally published by The
Portland Phoenix (http://portland.thephoenix.
com) on February 12, 2014; it is reprinted
with permission of the author.

Qualified Immunity Denied to
Michigan Guard for Improper
Strip Search of Amputee Prisoner

T

he Sixth Circuit Court of Appeals
affirmed the denial of qualified immunity to a Michigan prison guard who
allegedly strip searched a prisoner without
a legitimate penological reason for doing
so. The appellate court also vacated the
denial of qualified immunity to a warden
who sanctioned the prisoner’s placement
in isolation, remanding for consideration of
the warden’s qualified immunity defense.
When Martinique Stoudemire entered
Michigan’s prison system at the age of 23 in
July 2002, she had a lengthy documented
history of health problems. Absent proper
care, she was at significant risk of experiencing kidney and liver damage, heart
attacks, amputations and chronic pain.
After arriving at the Huron Valley Women’s
Correctional Facility (Huron), her health
quickly deteriorated.
By the time she was paroled in 2007,
Stoudemire had undergone three amputations, eventually losing both legs below the
knee. She attributed her health complications to the failure of prison staff, nurses and
associated doctors to provide adequate medical care. The appeal in her lawsuit focused
on her final amputation in December 2007,
when she contracted a MRSA infection and
was quarantined in Huron’s segregation unit.
[See: PLN, May 2007, p.1].
Michigan Department of Corrections

42

(MDOC) policy provides for prisoners with
MRSA to be quarantined, and the warden
at Huron, Susan Davis, designated the
facility’s segregation unit as a quarantine location. Pursuant to that policy, Stoudemire
spent two weeks in segregation.
While there she received “extremely poor”
medical care: The cell was not equipped for
disabled prisoners, and she was not provided
with assistive devices to safely move between
her bed, wheelchair, toilet and shower. Medical staff treated her with contempt, accused
her of malingering and responded with
hostility when she sought assistance. She was
once forced to urinate in a bowl, defecated on
herself once, received only one shower in the
two weeks she spent in segregation and had
to dress her own wounds.
Warden Davis argued that she was entitled to qualified immunity on Stoudemire’s
claim that the segregation conditions
amounted to deliberate indifference to her
serious medical needs. The Sixth Circuit
found the district court did not make factual
findings pertaining to Davis or her mental
state or knowledge of the facts alleged by
Stoudemire, and remanded that issue to the
lower court to make such findings and rule
on Davis’ qualified immunity defense.
The Court of Appeals then addressed
a claim against prison guard Ariel N. Dunagan, who strip searched Stoudemire on
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 46 of 67

February 10, 2007. An MDOC reprimand
noted that “other persons could have observed” Stoudemire during the strip search
because Dunagan failed to block a window
in the cell door, and Dunagan admitted that
such “visual contact” was possible.
Stoudemire alleged the search was
“undertaken to harass or humiliate” her. The
appellate court wrote that prisoners have a
diminished right to be secure in their persons
against unreasonable searches, but “a strip
search is a particularly extreme invasion
of that right.” The Sixth Circuit said such
searches require exigent circumstances.
Three facts, the Court of Appeals found,
indicated that the search was invasive. First,
the location allowed people in the hall outside Stoudemire’s cell to view the search.
Next, Dunagan refused to tell Stoudemire
the reasons for the strip search. Dunagan
also smirked during the search, which may
suggest “personal animus and implicate the
dignitary interest ‘inherent in the privacy
component of the Fourth Amendment’s proscription against unreasonable searches.’”
The Court emphasized it was not
reviewing MDOC policy, but rather considering the acts of a guard who violated
that policy and was sued in her individual
capacity. It found the right at issue was
clearly established, precluding qualified
immunity. The district court’s order was
vacated in part, affirmed in part, and remanded for a determination of Warden
Davis’ qualified immunity defense and of
Davis and Dunagan’s immunity defense to
Stoudemire’s state law claims. See: Stoudemire v. Michigan Dept. of Corrections, 705
F.3d 560 (6th Cir. 2013).
Following remand, on September
25, 2013 the district court granted Stoudemire’s motion to reopen the record to

obtain “new evidence in opposition to the
MDOC Defendants’ motion to dismiss and

for summary judgment.” The case remains
pending.

The Redbook – A Manual on Legal Style, by
Bryan Garner (Thomson West, 2nd Ed., 2006).
510 pages (spiral bound), $15.00.

T

Book review by John E. Dannenberg

he R edbook is a comprehensive
reference manual that provides guidance
with every facet of preparing legal documents. Reviewed by judges and attorneys,
the Redbook authoritatively instructs litigants
in the mechanics of writing (e.g., punctuation, spelling, citations, footnotes); grammar
(all parts of speech, “legalese,” troublesome
words); and preparing specific documents
such as business letters, case briefs, affidavits,
pleadings and motions. The detailed table of
contents – 24 pages, not included in the 510
page count – is thoroughly indexed to help
locate answers to your questions without
time-consuming searches.
The Redbook is much more than a reference tool, though. Its bold-faced head notes
draw your eye quickly to important subjects.
Short tutorial paragraphs follow, educating you
about each sub-category within a given topic.
This tutorial design provides a superb selfinstruction course on English language writing,
independent of its focus on legal writing. This
text is recommended as the single reference
book (beyond a dictionary or thesaurus) necessary for any serious incarcerated writer.
Have you ever stopped to ponder whether you’re inaptly (or ineptly) using an incorrect
word? Is it “insidious” or “invidious”? Did you
mean “insoluble” or “insolvable”? The Redbook
expends an impressive 100 pages reviewing
troublesome words that we all stumble over

– offering refreshing distinctions among
choices with concise explanations of their
differences. If you are not sure where to begin
to find a word that’s troubling you, a separate
index includes 3,600 such words with page
number references.
For jailhouse lawyers, the 55-page
chapter on appellate briefs will prove useful
in creating an effective presentation style
beyond the legal points of your argument.
Separate chapters guide you through pleadings and motions; additional chapters cover
business letters and contracts. Each of the
eleven chapters in Part 3 of the manual,
“Preparing Legal Documents,” contains
printed examples that depict format and
style as well as content.
The Redbook is an invaluable (i.e.,
“priceless” versus merely “valuable”) reference and educational tool for people who
want to prepare legal documents and concurrently improve their English language
writing skills.
The 3rd edition of the Redbook was published in August 2013 and is priced around
$45.00. Both editions are available from online booksellers such as Amazon, Alibris and
Barnes & Noble. Note that the spiral binding
of this book (2nd and 3rd editions) is made of
metal wire, which may not be allowed in some
prisons and jails. If removed, the wire can be
easily replaced with a shoelace.

Earn an Adams State University Degree via Correspondence Courses

Now Available: Bachelors Degree
in English/Liberal Arts

Prison Legal News

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43

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 47 of 67

I

Court Awards $802,176 in Fees, Costs in PLN
Censorship Suit Against Oregon County

n March 2014, a U.S. District Court
ordered Columbia County, Oregon to
pay $763,803.45 in attorney’s fees and
$38,373.01 in costs in a lawsuit raising
claims of illegal censorship at the Columbia
County Jail.
Prison Legal News had filed suit
against Columbia County and Sheriff Jeff
Dickerson in January 2012 after jail employees rejected PLN’s monthly publication
and letters mailed to prisoners at the facility.
Further, the jail refused to provide notice or
an opportunity to appeal the censorship of
PLN’s correspondence. [See: PLN, March
2013, p.50].
The Columbia County Jail rejected
PLN’s publication and letters pursuant to
a policy that only allowed prisoners to send
and receive mail in the form of postcards.
Further, the jail did not allow magazines. In
April 2013, following a bench trial, the district court entered judgment for PLN and
prohibited enforcement of the policy – the
first time that a jail’s postcard-only policy
has been struck down as unconstitutional
following a trial on the merits. [See: PLN,
June 2013, p.42].
During the litigation, the county
admitted “that inmates have a First Amendment right to receive magazines and
inmates and their correspondents have a
Fourteenth Amendment right to procedural
due process.” However, the jail defended
its postcard-only policy and claimed there
was no official policy banning magazines
at the facility.
Following the trial, the district court
found that the defendants’ purported
reasons for adopting the postcard-only
policy – preventing the introduction of
contraband and saving time during mail
inspection – were not supported by the
evidence. Columbia County subsequently
agreed to pay $15,000 to resolve PLN’s
claim for monetary damages.
In its March 24, 2014 order awarding
$802,176.46 in attorney’s fees and costs to
PLN, the district court rejected the county’s
arguments and objections to the award.
Jesse Wing, lead counsel for PLN,
praised the court for recognizing that the
case had advanced the public interest and
the rights of many other people. “In his
ruling today, Judge Michael H. Simon reApril 2014

marked that, ‘This action brought specific
injunctive relief not only to PLN but also to
all inmates at the Jail and their family and
friends and others who wish to correspond
with them...,’” Wing noted.
“The court’s award of over $802,000
in attorney’s fees and expenses in this case
represents the cost of failing to comply with
the Constitution of the United States,” said
PLN editor Paul Wright. “When county
officials willingly violate the Constitution
and refuse to remedy those violations,
instead choosing to engage in protracted
litigation, ultimately there is a greater cost
to the taxpayers.”

Columbia County has appealed the
district court’s judgment and injunction
prohibiting enforcement of the jail’s postcard-only policy, and the appeal remains
pending before the Ninth Circuit.
PLN was ably represented by Jesse
Wing and Katie Chamberlain with the
Seattle law firm of MacDonald Hoague &
Bayless; by the late Marc D. Blackman with
the Portland law firm of Ransom Blackman,
LLP, who passed away on January 1, 2014;
and by Human Rights Defense Center
general counsel Lance Weber. See: Prison
Legal News v. Columbia County, U.S.D.C.
(D. Ore.), Case No. 3:12-cv-00071-SI.

Oregon Appellate Court Declines to
Correct Unpreserved Sentencing
Error Related to Restitution
by Mark Wilson

I

n May 2013, the Oregon Court of
Appeals agreed that a trial court had
committed plain error when it recommended that a defendant pay restitution
in an amount to be determined by the
Board of Parole and Post-Prison Supervision (Board). The appellate court refused
to correct the error, however, because the
defendant did not object before the trial
court.
Ramon E. Coronado was convicted
of three assault charges. At a January 25,
2010 sentencing hearing on two of the
convictions, the state requested restitution
of $5,931.79 to the victim and $38,676.90
to the victim’s insurance company. Coronado’s attorney said “No objection.” During
sentencing on the remaining conviction
the following month, the court stated, “I’m
going to recommend ... that [defendant]
make restitution to the victim in this case
in an amount to be determined by the
[Board].”
Despite having failed to object to the
second restitution order, Coronado argued
that the Court of Appeals should exercise
its discretion to review the order as plain
error under Oregon Rule of Appellate
Procedure 5.45(1).
The appellate court recognized that
Coronado “correctly points out – and

44

the state concedes – that no statute
authorizes the court to recommend that
[the Board] determine the amount of
restitution.”
The Court of Appeals declined to
correct the error, however, finding that
Coronado had failed to object before the
trial court, which would have made this
“an easy error for the court to fix.” That
is, if he “had brought it to the court’s
attention, the court could have imposed
the restitution instead of recommending
[the Board] do so. Now, defendant asks
this court not to remand to correct the
error, but to strike the portion of the
judgment relating to restitution.” The
appellate court refused to do so, as “that
could result in a windfall” for Coronado
by vacating any restitution as to his third
assault charge. See: State v. Coronado,
256 Ore. App. 780, 302 P.3d 477 (Or.
Ct. App. 2013).
However, the Court of Appeals’ refusal to correct the error may still result in
a “windfall” for Coronado, given that the
Board only has the power bestowed upon
it by the legislature. As that authority does
not include the power to impose restitution
in criminal cases, any order from the Board
purporting to do so presumably would be
ultra vires and thus invalid.
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 48 of 67

New York Prison Officials Can Force-Feed
Hunger Striking Prisoner

T

he New York Court of Appeals,
the state’s highest court, held that a
hunger striking prisoner’s rights were not
violated by a judicial order allowing the
state to feed him by nasogastric tube to
preserve his life.
The Court’s decision labeled New York
state prisoner Leroy Dorsey a “serial hunger
striker.” Indeed, Dorsey went on a hunger
strike three times in 2010, in an effort to
obtain a transfer to another facility and
bring attention to his claims of abuse and
mistreatment.
Dorsey began one of the hunger strikes
in October 2010; a month later he had lost
11.6% of his body weight. The New York
Department of Corrections and Community Supervision (DOCCS) sought an order
to insert a nasogastric tube and take other
steps to hydrate him.
At a hearing on the petition, the
DOCCS submitted testimony indicating that Dorsey was at imminent risk of
starving to death or experiencing “a fatal

cardiac arrhythmia due to electrolyte and
fluid imbalance.” Dorsey opposed the petition, arguing he was not suicidal and the
DOCCS had no authority to interfere with
his hunger strike protest.
The Supreme Court granted the
DOCCS’ petition. Following that decision,
Dorsey voluntarily consumed a nutritional
supplement and ate solid food. The Appellate Division deemed Dorsey’s appeal
moot but still ruled on the merits with
respect to one issue, holding that when
“an inmate’s refusal to eat has placed that
inmate at risk of serious injury and death ...
the State’s interest in protecting the health
and welfare of persons in its custody outweighs an individual inmate’s right to make
personal choices about what nourishment
to accept.”
The Court of Appeals applied the
four-part test set forth in Turner v. Safley,
482 U.S. 78 (1987). It agreed the state
has a significant interest in preserving
life and preventing suicidal acts, and had

been found liable in the past for failing
to do so. The Court also noted a hunger
strike can have a “significant destabilizing impact” on a prison. Further, other
means were available for Dorsey to protest his treatment, such as grievances or
litigation, and the Court distinguished
previous cases in which it held that a
competent adult may refuse medical
treatment.
“In some circumstances we do not
doubt that the right to refuse medical treatment is a prerogative that is compatible with
incarceration,” the Court of Appeals wrote.
“But, even if we assume that some permutation of that right was implicated here, its
invocation as part of a strategy to strongarm DOCCS into granting a privilege to
which Dorsey was not otherwise entitled
is obviously not.”
Accordingly, the lower courts’ orders
were affirmed. See: Matter of Bezio v.
Dorsey, 21 N.Y.3d 93, 989 N.E.2d 942
(N.Y. 2013).

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45

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 49 of 67

Ninth Circuit: Delay in Providing Dental Care
May Constitute Deliberate Indifference

I

n an unpublished ruling, a Ninth
Circuit Court of Appeals panel reversed
in part a district court’s grant of summary
judgment to prison officials who, a prisoner
alleged, were deliberately indifferent to his
serious medical needs.
In 2008, Nevada prisoner Martinez
Aytch filed numerous requests for dental
treatment for a “rotten” tooth that was
causing him “awful” and “unbearable” pain.
Nearly six weeks after filing an informal
grievance alerting prison officials to his
submission of five medical “kites,” Aytch
received pain medication and antibiotics
but still had not seen a dentist. His informal
grievance was denied.
Aytch then filed a § 1983 complaint
alleging that prison officials had been deliberately indifferent to his dental needs; he
also alleged they were deliberately indifferent to his vision problems. The district court
granted summary judgment in favor of the
prison officials, and Aytch appealed.
Noting that Aytch’s vision problems
had been addressed when he received
eyeglasses, the Ninth Circuit affirmed the
grant of summary judgment with respect
to that issue.
Relying on precedent, however, such as
Hunt v. Dental Dep’t, 865 F.2d 198 (9th Cir.
1989), the appellate court held that Aytch
had raised a triable issue as to whether or
not the delay in providing dental care –
when considered in light of the pain he had
to endure as a result of that delay – constituted deliberate indifference to his serious
medical needs.
The Court of Appeals noted that budgetary constraints do not absolve prison
officials from liability for such indifference, and remanded the case to the district
court for further proceedings. See: Aytch v.
Sablica, 498 Fed.Appx. 703 (9th Cir. 2012)
(unpublished).
Following remand, and after Aytch
filed numerous motions related to discovery
issues and his ability to access the prison law
library and obtain legal copies, the case went
to trial in November 2013. The jury found
in favor of the defendants and Aytch filed a
notice of appeal. In January 2014 the district
court denied his motion for transcripts at
the government’s expense, as it would not
certify that the appeal was not frivolous
April 2014

pursuant to 28 U.S.C. § 753(f ). Aytch
litigated the case, including the trial, pro
se. See: Aytch v. Sablica, U.S.D.C. (D. Nev.),
Case No. 2:08-cv-01773-VCF-VCF.
On March 6, 2014, in another case
involving a prisoner alleging inadequate
dental care, the Ninth Circuit held in an en
banc decision that prison officials sued for

money damages may raise a defense of lack
of available resources to justify the failure
to provide adequate medical care. This is
contrary to the appellate ruling in Aytch and
other established precedent, and PLN will
report the en banc decision in greater detail
in a future issue. See: Peralta v. Dillard, 2014
U.S. App. LEXIS 4226 (9th Cir. 2014).

Burden-Shifting Jury Instruction Requires
New Trial in Prisoner’s Lawsuit

T

he Seventh Circuit Court of
Appeals has ordered a new trial in a
civil rights action that alleges a prisoner
was subjected to improper strip searches
to humiliate him, then was subjected to
an “especially protracted, gratuitous and
humiliating strip search” in retaliation for
having filed grievances complaining about
the earlier searches.
The Court of Appeals had previously
reversed an Illinois district court’s grant of
judgment as a matter of law to the defendants. See: Mays v. Springborn, 575 F.3d
643 (7th Cir. 2009). Following remand, the
case went to trial and the jury returned
a verdict in favor of the defendants. The
plaintiff, Tiberius Mays, formerly incarcerated at the Illinois state prison at Stateville,
filed another appeal arguing that he was
prejudiced by the instructions and special
interrogatories submitted to the jury.
Mays’ attorney had failed to object to
the instructions and interrogatories. As
such, the appellate court said it could reverse
only if there was “plain error” – meaning error that was both indisputable and likely to
have influenced the outcome of the case.
The appellate court found misleading an interrogatory related to an Eighth
Amendment claim that asked the jury to
state whether each defendant did or did not
“have a valid penological reason for the group
search conducted [in a specified month or
on a specified date].” As the Seventh Circuit
held in the previous reversal in this case,
even if there was a valid penological reason
for the strip searches, “the manner in which
the searches were conducted must itself pass
constitutional muster.”
The evidence showed the group searches had gratuitously exposed the nudity

46

of each prisoner being searched, and the
guards conducted the searches while wearing dirty gloves in a freezing basement and
uttering demeaning comments about the
prisoners’ genitals.
In instructing the jury on Mays’ First
Amendment claim, the district court placed
the burden of proof regarding causation
on the wrong party by requiring Mays to
negate the possibility that the retaliatory
strip searches would have occurred even if
there had been no retaliatory motive.
The Court of Appeals held the jury
should have been instructed that Mays had
the burden of proving retaliation was the
motivating factor for the strip search, but
even if he presented such proof, the defendants could still prevail if they persuaded
the jury that it was more likely than not that
the strip search would have occurred even
had there been no retaliatory motive.
The failure to give such an instruction
was found to be plain error, and that error
was compounded by the special interrogatories submitted to the jury by the district
court, which asked four times whether
retaliation was “the sole motivating factor”
for the strip search. Therefore, the judgment
was reversed and the case remanded for
another trial. See: Mays v. Springborn, 719
F.3d 631 (7th Cir. 2013).
Mays obtained new counsel following
remand and a jury trial has been scheduled
for May 20, 2014. This civil rights action,
initially filed in 2001, has been pending for
13 years.

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Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 50 of 67

Eighth Circuit: Federal Sentence Consecutive to
Later-Imposed State Sentence
by Mark Wilson

O

n June 6, 2013, the Eighth Circuit
Court of Appeals held that a prisoner was
not entitled to credit toward his federal sentence for time already served on state charges.
In March 2007, Charles Lee Elwell
was arrested in Iowa. A federal indictment
was issued against him several days later;
Elwell was transferred to federal custody
and the state court stayed its prosecution
until the federal charges were resolved.
Elwell pleaded guilty to the federal
charges and was sentenced to 66 months in
prison in November 2007. The district court
did not address whether the federal sentence would run concurrent or consecutive
to any yet-to-be-imposed state sentence,
as permitted by Setser v. United States, 132
S.Ct. 1463 (2012). [See related article in
this issue of PLN].
Elwell was then returned to Iowa’s
custody and sentenced to two concurrent
five-year prison terms. The state court
expressed its intent to impose the state sentence concurrent with the already-imposed
federal sentence.
Later discovering that Elwell’s state
and federal sentences were not concurrent,
however, the state court resentenced Elwell to
time served on February 6, 2009. As a result,
Elwell’s state sentence ended that day and he
was transferred to the federal prison system.
The Bureau of Prisons (BOP) subsequently denied Elwell’s request for credit
for time served toward his federal sentence
and for a nunc pro tunc designation pursuant to 18 U.S.C. § 3621. Elwell then filed
a habeas corpus petition, which was denied
by the district court.
On appeal, the Eighth Circuit first
applied the primary jurisdiction doctrine,
finding that Iowa, not the federal government, had primary jurisdiction of Elwell
from March 2007 to February 6, 2009.
“Pursuant to the doctrine of primary
jurisdiction, service of a federal sentence
generally commences when the United
States takes primary jurisdiction and a
prisoner is presented to serve his federal
sentence, not when the United States merely takes physical custody of a prisoner who
is subject to another sovereign’s primary
jurisdiction,” the Court of Appeals wrote.
Prison Legal News

Under 18 U.S.C. § 3584(a), “multiple
terms of imprisonment imposed at different times run consecutively unless the court
orders that the terms are to run concurrently.” As such, the appellate court found
that “Elwell’s federal sentence must run
consecutive to his state sentence.”
Given the express bar on double
credit imposed by 18 U.S.C. § 3585(b),
the Court of Appeals also rejected Elwell’s
challenge to the BOP’s denial of federal

credit for time served while he was in state
custody between March 2007 and February 6, 2009.
Finally, the Eighth Circuit held the
BOP did not abuse its discretion in denying
Elwell’s request for a nunc pro tunc designation of the various facilities where he was
incarcerated prior to February 6, 2009 as
the locations for serving his federal sentence
under 18 U.S.C. § 3621. See: Elwell v.
Fisher, 716 F.3d 477 (8th Cir. 2013).

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April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 51 of 67

Sexual Abuse by Oregon Jail Guard Nets Probation;
Defense Attorney Blames Victim

A

former Oregon jail guard was sentenced to probation for sexually abusing
a female prisoner after pleading guilty to a
misdemeanor charge; his defense attorney
blamed the incarcerated victim while the
prosecutor defended the light sentence. The
guard, Eddie James Miller, 60, was later accused of sexually harassing a co-worker.
As previously reported in PLN, Miller’s
21-year career at the Inverness Jail in Portland, Oregon came to an end when he was
accused of walking in on a 34-year-old
female prisoner as she was using the bathroom in the jail’s medical unit and forcing
her to perform oral sex on him on January
9, 2012 [See: PLN, April 2012, p.1].
The distraught prisoner immediately
reported the incident to detectives, according to Mike Schults, a chief deputy with the

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Multnomah County Sheriff ’s Office.
Authorities said the woman’s DNA was
found on Miller, and she testified before a
grand jury. On February 29, 2012, Miller
was indicted on charges of official misconduct in the first degree and custodial sexual
misconduct in the first degree.
The latter offense is a felony when an
Oregon corrections employee or contractor engages in sexual intercourse with a
prisoner; all other sexual contact constitutes
the misdemeanor offense of custodial sexual
misconduct in the second degree. Prisoners
are not subject to prosecution, and consent
is not a defense due to the power imbalance
between guards and prisoners.
Miller entered a not guilty plea through
his attorney, Lisa Ludwig. He was fingerprinted, photographed and booked into jail but
released on pretrial supervision pending trial.
“We take these things very seriously,”
said Schults. During the investigation, Miller
was initially put on paid leave but later placed
on unpaid leave following the indictment.
He resigned in April 2012. Schults said the
female prisoner was transferred to the nearby
Washington County Jail for her safety.
Miller was allowed to plead guilty to a
misdemeanor charge of official misconduct
in the first degree and sentenced to two
years’ probation on September 25, 2012.
Multnomah County Deputy District Attorney Don Rees defended the plea agreement
by claiming that Miller may in fact have
been the victim of a
scheme to obtain a
cash settlement from
the county.
Noting that
the prisoner has a
15-year cr iminal
history, including
f raud and forgery
convictions, investigators said they
became suspicious
of her intentions
when her boyfriend
and another prisoner
reported that she had
told them she was
using Miller to get
rich off the county.
Several prisoners at

48

the Washington County Jail also informed
officials that Miller told them of a plan to
trap another guard in a similar scheme – as
if jail guards are somehow unable to resist
having sex with prisoners.
When Miller was sentenced, Ludwig
called the victim a “con artist” but conceded
that Miller was guilty of official misconduct.
In addition to probation, Miller was ordered to
pay a $2,500 compensatory fine to the victim
and forfeit his law enforcement certification.
Meantime, Portland attorney Jennifer
Palmquist notified the county of the prisoner’s intent to file suit. She said Ludwig’s
reference to her client as a con artist was
nothing more than “blaming the victim.”
Palmquist stated her client wants to fix a
broken system, noting that jail staff did not
offer her medical treatment or counseling
when she reported the sexual abuse.
Meantime, after Miller was placed on
leave, a former co-worker at the Inverness Jail
came forward to report that he had kissed
and touched her in a sexually aggressive,
inappropriate and non-consensual manner.
In January 2013, the former co-worker,
Shireela Kennedy, filed a $900,000 lawsuit
against Miller, Multnomah County and
Aramark Correctional Services, which
contracts with the jail. The suit claimed
that Miller began making inappropriate
comments shortly after she began working
at the facility in September 2011.
According to her lawsuit, Kennedy’s
supervisors destroyed a written sexual harassment complaint she had filed against
Miller and ignored her numerous verbal
complaints. The suit also alleged that Aramark employee Eddie Climer brushed off
her reports of sexual harassment.
Kennedy said she began having panic
attacks, depression and difficulty sleeping
following Miller’s inappropriate actions. She
was terminated from her job in February
2012; since then, according to her complaint,
she has suffered loss of earnings, job opportunities and other employment benefits.
Kennedy’s lawsuit was resolved in
October 2013 under undisclosed terms.
See: Kennedy v. Aramark, Multnomah
County Circuit Court (OR), Case No.
130101276.
Source: www.oregonlive.com
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 52 of 67

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April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 53 of 67

Federal Court Must Give Reasons for Special
Conditions of Supervised Release
by David Reutter

T

he Sixth Circuit Court of Appeals
has reversed a district court’s imposition
of four special conditions of supervised
release, due to the court’s failure to explain
its reasons for imposing them.
Rashan R. Doyle was convicted in New
York of attempted sexual abuse in the first
degree; as a result of that qualifying felony
conviction, the Sex Offender Registration
and Notification Act required him to register as a sex offender. When Doyle moved to
Tennessee, however, he failed to register.
Doyle pleaded guilty to a charge of failure to register as a sex offender in violation
of 18 U.S.C. § 2250(a). A federal district
court in Tennessee sentenced him to 37
months in prison followed by ten years of
supervised release, plus a $3,000 fine.
The term of supervised release included
four special conditions that prohibited
Doyle from possessing any pornography,
even legal pornography; having direct or
indirect contact with any child under eighteen, including loitering near school yards,
playgrounds, swimming pools, arcades or
other places frequented by children; using
sexually-oriented telephone or computerbased services; and possessing or using
a computer with access to any “on-line
service” or other forms of wireless communication without the approval of his
probation officer.
Because Doyle did not object to the
special conditions at sentencing, the Sixth
Circuit analyzed them under the plain-error
standard. The appellate court held that “a
district court errs if it fails, at the time of sentencing, to state in open court its rationale for
mandating a special condition of supervised
release.” In this case, the district court had
erred procedurally because it failed to explain
its reasoning for the special conditions at
issue; the Court of Appeals found the error
was clear because the record did not show
why the conditions were imposed.
Further, the district court’s failure to
explain its rationale for the special conditions
“may have had a substantial influence on the
outcome of the proceedings.”The Sixth Circuit wrote, “there is a reasonable probability
that the court may not have imposed the
special conditions if it had fulfilled its obligaApril 2014

tions to explain the basis for the conditions
or at least made sure the record illuminated
the basis for the conditions.” Finally, as the
special conditions were “likely more severe
than the ones the district court would have
imposed had it fulfilled its obligation to
explain its reasoning,” the error was not
harmless and affected the fairness, integrity
or public reputation of the proceedings.
The four special conditions of Doyle’s
supervised release were vacated and the
case remanded for resentencing. The district
court was reminded that if it does impose
special conditions, they “‘must be tailored

to the specific case before the court.’” The
Sixth Circuit noted that it did not see how
some of the special conditions related to
the nature and circumstance of Doyle’s
offense of failure to register; the one exception was contact with children or being in
places where children congregate, but that
provision should not apply to Doyle’s own
children. See: United States v. Doyle, 711
F.3d 729 (6th Cir. 2013).
Following remand, Doyle was resentenced on August 30, 2013 to 37 months in
prison and five years of supervised release,
plus a $3,000 fine.

Idaho Supreme Court Upholds Dismissal
of § 1983 Claims in Jail Suicide Case
by Mark Wilson

T

he Idaho Supreme Court has affirmed a lower court’s dismissal of §
1983 claims stemming from the death of a
detainee who committed suicide at the Ada
County Jail (ACJ).
On September 28, 2008, Bradley
Munroe was arrested for robbery. He was
hospitalized because he was intoxicated,
uncooperative and exhibiting odd behavior.
Munroe claimed he would commit suicide
if released, but the hospital cleared him and
he was transported to ACJ.
During the booking process, Munroe
was screaming, being rowdy and not making
sense. Given his bizarre behavior, booking was
suspended until the next morning and he was
placed in a holding cell for observation.
James Johnson, a psychiatric social
worker at the jail, assessed Munroe’s suicide
risk. Johnson concluded that Munroe’s risk
level was insufficient to justify admitting him
to ACJ’s Health Services Unit (HSU).
After Johnson’s assessment, Munroe
answered some suicide risk questions in
the affirmative during the booking process.
Guards did not contact staff in the HSU,
however, based on Johnson’s evaluation.
Upon his request,Munroe was held in a single
cell in protective custody. Guards were required to
conduct well-being checks every 30 minutes.
At around 9 a.m. on September 29,

50

2008, Munroe’s mother, Rita Hoagland,
called ACJ to express concerns that her
son was suicidal. Hoagland’s concerns were
reported to Johnson, but he did not alter his
initial assessment.
That evening, Munroe was found hanging by a bed sheet from the top bunk in his
cell. Efforts to revive him were unsuccessful.
On January 23, 2009, Hoagland filed
suit in state court, in her personal capacity
and as the representative of Munroe’s estate,
claiming that guards were watching football
when her son committed suicide. The initial
complaint alleged § 1983 claims, state law
torts and wrongful death claims.
When the defendants moved for summary judgment, Hoagland withdrew all of
her state law claims and proceeded with
only the § 1983 claims.
The trial court granted qualified immunity to Johnson and dismissed Hoagland’s
claims against the other defendants. It
awarded $15,815.31 to the defendants in
costs as a matter of right and $77,438.12 in
discretionary costs, but not attorneys’ fees.
On appeal, the Idaho Supreme Court
found “the district court properly held
that Munroe’s estate is not a valid § 1983
plaintiff,” because “Munroe’s § 1983 claim
abated with his death.”
“This Court has clearly held that
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 54 of 67

§ 1983 is a personal cause of action. Furthermore, there is no federal law governing
the issue of abatement. Therefore, the law
of Idaho governs to the extent that it is not
inconsistent with federal law. At common
law in Idaho, a personal tort cause of action
abates with the death of the plaintiff.”
The state Supreme Court also held that
Hoagland had “failed to establish a violation of her constitutional rights underlying

her § 1983 claim,” as she did not prove the
defendants intentionally interfered with her
relationship with Munroe.
Given Hoagland’s waiver of her state
law wrongful death claim, the Court found
that judicial estoppel barred her from asserting “that her § 1983 claim incorporates
the wrongful death claim.”
The Supreme Court upheld the trial
court’s denial of attorneys’ fees but reversed

the discretionary award of costs to the
defendants, noting that “the district court
failed to make adequate findings.” On
remand, the lower court was directed to
reconsider the discretionary costs and make
“express findings justifying the award.” The
Court also reduced to $14,897.31 the costs
awarded to the defendants as a matter of
right. See: Hoagland v. Ada County, 154
Idaho 900, 303 P.3d 587 (Idaho 2013).

Washington PRA Violations Result in Costs and Penalties
by Mark Wilson

T

he Washington Court of Appeals,
Division Two, held on July 30, 2013 that
a state agency violated Washington’s Public
Records Act (PRA) by failing to respond
to a prisoner’s request within the statutory
time limit and by redacting information not
exempt from disclosure. The appellate court
instructed the lower court to determine on
remand the amount of costs and penalties to
be awarded as a result of the violations.
On July 20, 2009, Monroe Correctional
Complex prisoner Derek E. Gronquist sent
a PRA request to the Washington State
Department of Licensing (DOL) for the
master business license application of a
specified company.
The DOL failed to respond within five
days in violation of the PRA. When the
agency responded to Gronquist’s request
on July 31, 2009, it provided the requested
document but “redacted much of the application without providing a statutory basis
for the redactions.”
Gronquist filed suit in state court,
alleging that the DOL had violated the
PRA by providing a redacted copy of the
application. Following an inspection of the
redacted information, the trial court granted
summary judgment to the DOL, holding
that the redacted material was not subject
to disclosure but protected as confidential
under Washington law.
The Court of Appeals reversed, holding
that: 1) the DOL did not respond within
the statutory time frame; 2) none of the
redacted information was exempt when it
was requested; 3) the DOL failed to provide timely or adequate justification for the
redactions; and 4) the trial court improperly
refused to file the deposition transcripts offered by Gronquist in support of his motion
for sanctions and in response to the DOL’s
summary judgment motion.
Prison Legal News

Due to a 2011 change that transferred
the responsibility for master business
licenses from the DOL to another state
agency, the appellate court declined to order
disclosure of the unredacted application
requested by Gronquist. It remanded, however, instructing “the trial court to consider
the imposition of costs and penalties after
consideration of the entire record, including the depositions to be filed by the trial
court.” Gronquist was also awarded his
costs on appeal.
The Court of Appeals did not address

the applicability of RCW § 42.56.565(1),
effective July 22, 2011, which specifies that
a court shall not award penalties for violations of the PRA “to a person who was
serving a criminal sentence in a state, local,
or privately operated correctional facility on
the date the request for public records was
made, unless the court finds that the agency
acted in bad faith in denying the person
the opportunity to inspect or copy a public
record.” See: Gronquist v. Washington State
Department of Licensing, 175 Wn. App. 729,
309 P.3d 538 (Wash. Ct. App. 2013).

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April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 55 of 67

P

Prisoner Organ Transplants, Donations Create Controversy

rison officials in several states are
mulling over two sides of the same
coin with respect to organ transplants
for prisoners: first, the eligibility and cost
of such medical procedures, and second,
whether prisoners should be allowed to
donate their organs.

Prisoners in Need of
Organ Transplants
In Rhode Island, a liver transplant
performed on a 27-year-old prisoner left
officials defending the cost of the life-saving
operation.
A spokeswoman for the Rhode Island
Department of Corrections (RI DOC) said
Jose Pacheco, who is serving a 6½-year sentence for robbery, became the first prisoner
in the state to receive a liver transplant. The
August 1, 2012 operation was performed
in Boston because Rhode Island hospitals
don’t currently perform such transplants.
The procedure can cost up to almost
$1 million, with the state required to pick
up 40% of the bill, according to court
precedent.
But the RI DOC said in a statement
that it was unclear how much of Pacheco’s
hospital bills the state will actually pay
because it’s possible he qualified for Social
Security benefits before he was incarcerated.
In that case, Medicaid would cover about
50% of the cost.
“To date, the Department has paid
only for the inmate’s supervision in the
hospital under an interagency agreement
with the [Massachusetts Department of
Corrections],” said RI DOC spokeswoman
Tracey Zeckhausen. “That totaled just over
$110,000” as of June 2012, she added.
“It is a sort of lose-lose situation for
the taxpayer,” said state Senator Dawson
Hodgson. “It can amount to torture if you
let someone die without healthcare. At
the same time, $1 million is a tremendous
amount of taxpayer resources, whether it
is coming from the state or federal government, put into any person’s healthcare
– never mind someone who is a drug dealer
and a thief.”
Pacheco’s case is not the first to generate controversy about prisoners receiving
organ transplants, of course.
A California prisoner received a heart
transplant in January 2002 at a cost of $1
million – which included follow-up care –
April 2014

according to Russ Heimerich, a spokesman
for the California Department of Corrections and Rehabilitation (CDCR). At
the time, Heimerich said the 32-year-old
prisoner was suffering from a fatal heart
condition. [See: PLN, Sept. 2002, p.12].
Less than a year later the heart transplant recipient had died, the victim of what
prison officials called a failure to adhere
to the demanding medical protocols that
follow such an operation. [See: PLN, Oct.
2003, p.28]. Transplant patients typically
require close monitoring and a wide range
of daily medications to prevent organ rejection and fight infections.
In 2004, a California federal court
ordered the CDCR to contact transplant
centers in the state to determine whether
they would accept a prisoner as a candidate
for a liver transplant. See: Rosado v. Alameida,
359 F.Supp.2d 1341 (S.D. Cal. 2004).
New York state prisoner Wilfredo Rodriguez received a $400,000 liver transplant in
November 2005. [See: PLN, Feb. 2006, p.40].
When another New York prisoner, convicted
of rape, was being evaluated in 2011 for a
heart transplant, state lawmakers demanded
a review of the policies that permitted such
operations at taxpayers’ expense.
“These reports raise a multitude of
questions that demand and deserve answers
for New York taxpayers, potential organ
donors, and law-abiding families who are
still waiting for life-saving transplants,” said
state Senator Michael Nozzolio. “We cannot allow law-abiding citizens to be denied
transplants in favor of dangerous violent
offenders, convicted of heinous crimes, who
may never leave prison.”
Apparently, Nozzolio was unaware
that the provision of adequate healthcare
by prison officials – including organ transplants when needed – is a Constitutional
requirement. The U.S. Supreme Court ruled
in Estelle v. Gamble, 429 U.S. 97 (1976) that
denying necessary medical care to prisoners
constitutes cruel and unusual punishment in
violation of the Eighth Amendment.
“You get a liver transplant because you
meet the very strict criteria, not because we
like you,” remarked Dr. David Kaufman, the
medical director at Strong Memorial Hospital, which performed the liver transplant
for Rodriguez.
The New York prisoner seeking a heart
transplant, Kenneth Pike, was screened for

52

the operation but later declined the transplant for reasons that were not reported.
Meanwhile, the United Network for
Organ Sharing (UNOS), a non-profit
organization that manages the organ transplant system in the United States under a
contract with the federal government, has
taken the position that prisoners should not
be precluded by their carceral status from
receiving transplants, and should be eligible
for such procedures to the same extent as
non-incarcerated citizens.
People usually receive organ transplants according to their position on the
waiting list, which is based on the severity of
their medical condition. There are currently
over 121,000 people on organ waiting lists
nationwide.

When Prisoners Want
to Donate Organs
At the opposite end of the spectrum,
controversy has erupted in several states
about the ability of prisoners – including
those on death row – to donate their organs,
and the appropriateness of such donations.
In Mississippi, Governor Haley Barbour
commuted the life sentences of sisters Gladys
and Jamie Scott in December 2010, on the
condition that Gladys donate one of her
kidneys to Jamie. Both prisoners, who had
served 16 years for an $11 armed robbery,
were released in January 2011; Barbour’s
decision may have been partly motivated by
fiscal concerns, as Jamie’s dialysis was reportedly costing the state prison system around
$190,000 per year. It is unclear whether the
post-release kidney transplant occurred, as it
was initially postponed for medical reasons.
[See: PLN, May 2011, p.34].
Utah enacted the Inmate Medical
Donation Act in March 2013, which allows
voluntary organ donations from prisoners who die “while in the custody” of the
Department of Corrections. The law states
that prison officials may “release to an organ
procurement organization ... the names and
addresses of all inmates who complete and
sign the document of gift form indicating
they intend to make an anatomical gift.”
In Ohio, Governor John R. Kasich
placed the November 2013 execution of
death row prisoner Ronald Phillips on hold
in order to study the feasibility of allowing
Phillips and other condemned prisoners to
donate their organs. Phillips was sentenced
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 56 of 67

to die for the 1993 rape and beating death
of his girlfriend’s 3-year-old daughter.
“Ronald Phillips committed a heinous
crime for which he will face the death penalty,” the governor said in a statement. “I
realize this is a bit of uncharted territory for
Ohio, but if another life can be saved by his
willingness to donate his organs and tissues
then we should allow for that to happen.”
Phillips’ request to donate his organs
to sick relatives or others who need them
was initially rejected by state prison officials.
According to the governor’s office, Phillips’
non-vital organs, such as a kidney, would be
removed and he would then be returned to
death row pending his execution, which was
re-scheduled for July 2014.
On March 21, 2014, Ohio Department of Rehabilitation and Correction
chief counsel Stephen Gray said Phillips
would not be able to donate his organs, as
he could not to do so in time to allow for
a 100-day recuperation period prior to his
new execution date.
Some people worry about the ethics
of allowing death row prisoners to donate
their organs. Jeff Orlowski, who heads Life
Share Transplant Services, compared the
process to organ harvesting – a practice
that has been condemned in China, which
until only recently harvested organs from
executed prisoners. [See: PLN, March 2013,
p.27; Sept. 2009, p.35; Jan. 2008, p.16; Sept.
2007, p.24].
Life Share Transplant Services keeps
track of the organ donation registry in
Oklahoma, where one state lawmaker predicted widespread support for his proposal
to allow death row prisoners to donate
their organs.
“I don’t think it will be a tough sell,”
state Rep. Joe Dorman said in November
2013. “I think with the strong stance that
we have with members of the legislature
being pro-life, I certainly see this as a prolife idea because you’re saving lives with the

actions of that prisoner seeking redemption”
by donating his organs.
“You can’t put a price on life,” he added,
apparently without irony.
Rep. Dorman said organs donated by
willing prisoners would benefit people waiting
for transplants – especially for organs that are
difficult to find, The Oklahoman reported. His
proposed legislation would allow prisoners to
be anesthetized, have their organs removed
and then be placed on life support until their
executions can be carried out. Oklahoma uses
lethal injection, which renders organs useless
for post-execution transplants.
“The only options for executing someone to obtain vital organs is to either shoot
them in the head or chop their head off
and have a team of doctors ready to step in
immediately,” noted Arthur Caplan, professor of medical ethics at NYU Langone
Medical Center.
Oregon death row prisoner Christian
Longo has pushed the issue of organ donation for several years. “If I donated all
of my organs today, I could clear nearly 1
percent of my state’s organ waiting list. I
am 37 years old and healthy; throwing my
organs away after I am executed is nothing
but a waste,” he wrote in a New York Times
editorial on March 5, 2011. Prison officials
denied his request.
Longo, who founded an organization
called Gifts of Anatomical Value from
Everyone (GAVE), renewed his efforts
to donate his organs in March 2014, offering to give a kidney to Kevin Gray, an
Oregon resident with kidney failure who
is on dialysis.
“I don’t care if you’re incarcerated,
if you’re my neighbor – if you’re willing
to donate an organ to save a life it’s very
breathtaking and I’m very grateful,” Gray
said, although he later rejected the offer after learning that Longo was on death row.
“The department looks at organ donation on a case-by-case basis,” stated Oregon

Department of Corrections spokeswoman
Jennifer Black. “If someone needs a bone
marrow transplant or their mother needs a
kidney and there’s a match, then there’s no
reason that can’t go forward,” she said. “But
it’s not just a blanket ‘yes.’ All offenders can
give part of their body away to somebody
else. It has to be for the right reasons and
the right person and all that.”
Policies related to organ donations by
prisoners, including those on death row,
vary from state to state.
“There have been several instances in
the United States within the last 20 years
where condemned prisoners have requested
to become organ donors, either upon their
execution as a deceased donor or prior to
execution as a living donor,” UNOS said in
a November 14, 2013 statement posted on
the organization’s website. “Ultimately the
correctional authority must decide whether
to allow any inmate to be evaluated for
donation, and an organ procurement organization and/or transplant center must
make medical decisions whether to accept
any person as a donor and allow a transplant
to proceed.”
UNOS noted that organ donations from
prisoners “present special concerns and vulnerabilities, and appropriate precautions are
necessary to prevent the potential for coercion” – such as offering early release or other
incentives in exchange for prisoners’organs.
Sources: www.630wpro.com, Providence
Journal, www.osv.com, CBS News, NBC
News, United Press International, www.
waynepost.com, Associated Press, The New
York Times, www.kgw.com, www.wamc.org,
New York Daily News, NBC News, www.
unos.org, The Oklahoman, www.gavelife.org,
Statesman Journal

WHEN IT IS YOUR FAMILY’S FUTURE, EXPERIENCE MATTERS
STATE AND FEDERAL POST-CONVICTION AND APPEALS

Licensed since 1995, hundreds of appellate briefs and habeas petitions,
capital qualified for habeas and appeals in Texas and U.S. Southern District of Texas,
Motions for New Trial, Rule 35 and 60b motions, re-sentencing and arrest of judgment.
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Prison Legal News

53

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 57 of 67

Oklahoma Jailers Not Immune
from Excessive Force Claims

T

he Oklahoma Supreme Court has
held that jail officials are not immune
from liability for excessive force claims
under the Oklahoma Governmental Tort
Claims Act (OGTCA).
On May 17, 2011, Daniel Bosh was
detained at the Cherokee County Detention Center for failure to pay a traffic ticket.
Video surveillance showed him standing
at the booking desk with his hands cuffed
behind his back.
Bosh reportedly complained to guard
Gordon Chronister, Jr. that his handcuffs
were too tight; in response, Chronister
grabbed him from behind and slammed
his head onto the booking desk. He then
placed Bosh’s head under his arm and fell
backwards, causing Bosh to strike the top
of his head on the floor.
According to the video footage, other
guards quickly joined the attack. They
moved Bosh to a shower area outside the
camera’s view, where they continued to
assault him for an undisclosed period of
time.
“The video speaks for itself,” said Bosh’s
attorney, Mitchell Garrett.
Guards then left Bosh to languish in
a cell without medical treatment for two
days before taking him to a local hospital.

Having suffered fractured vertebrae, Bosh
required surgery to fuse several discs along
his spinal cord.
Chronister later claimed that he
thought Bosh was going to spit on him;
based on that assertion, and the fact
that Bosh had a long criminal history
that damaged his credibility, prosecutors
did not pursue criminal charges against
Chronister or other guards involved in
the incident.
On September 29, 2011, Bosh filed
a 42 U.S.C. § 1983 action in state court
against the Cherokee County Governmental Building Authority (“Authority”), which
operates the jail, and against Assistant Jail
Administrator T.J. Girdner and the guards
who had assaulted him. The defendants
removed the case to federal court.
The federal district court dismissed
Bosh’s state tort claims as being barred
by the OGTCA, 51 O.S. 2011 §§ 151
et seq., which “appears to allow the state,
or, in this case the Authority, to elude
tort liability when its employees beat and
injure a citizen who is detained at one of
its facilities.”
Nevertheless, the district court allowed
Bosh “to amend his complaint to assert a
claim of excessive force” under Article 2,

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§ 30 of the Oklahoma Constitution. The
defendants moved to dismiss the constitutional claim, arguing that it too was barred
by the OGTCA. On August 30, 2012,
the federal court certified three questions
of law to the Oklahoma Supreme Court
related to the scope and application of the
OGTCA.
In answering those questions, the
Supreme Court first found that Article
2, § 30 “provides a private cause of action for excessive force, notwithstanding
the requirements and limitations of the
OGTCA.” Construing the OGTCA “as
providing blanket immunity ... would ...
render the Constitutional protections
afforded the citizens of this State as ineffective, and a nullity,” the Court explained.
Thus, excessive force claims brought under Article 2, § 30 are not barred by the
OGTCA.
The Supreme Court then held that the
cause of action it recognized with respect
to excessive force claims under Article 2,
§ 30 applies retroactively “to all matters
which were in the litigation pipeline, state
and federal, when Bryson v. Oklahoma
County, 2011 OK CIV APP 98, 261 P.3d
627 [(Okla. Ct. App. 2011)] was decided as
well as any claims which arose when Bryson
was decided.”
Finally, the Court found that in regard
to such claims under Article 2, § 30 of the
Oklahoma Constitution, “respondeat superior applies to hold municipal corporations
liable for the actions of their employees
where those employees are acting within
the scope of their employment.”
Although the ruling was superficially
amended and corrected on June 28, 2013,
the outcome remained the same. See: Bosh
v. Cherokee County Governmental Building
Authority, 2013 OK 9, 305 P.3d 994 (Okla.
2013), rehearing denied.
Bosh’s suit alleging excessive force
claims remains pending before the federal
district court, though it is now being litigated by his estate. On March 17, 2014, Bosh’s
wife notified the court that he had died.
See: Bosh v. Cherokee County Governmental
Building Authority, U.S.D.C. (E.D. Okla.),
Case No. 6:11-cv-00376-JHP.
Additional source: www.kjrh.com

April 2014

54

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 58 of 67

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55

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 59 of 67

News in Brief

Alabama: Carbon Hill Mayor James
“Pee Wee” Richardson, 61, was arrested on
September 19, 2013 on multiple charges
related to sexually abusing four prisoners
at the city’s municipal jail; he was released
eight days later after posting a $250,000
property bond. In addition to the criminal
charges, Richardson faces a civil lawsuit
filed by a former prisoner who claims he
took her into his office and groped her.
The civil suit includes 11 counts of alleged
wrongdoing by Richardson or the city, and
seeks compensatory, statutory and punitive
damages as well as attorney’s fees.
Angola: A cell phone video, which
went viral on the Internet, showed several
Angola prison guards kicking prisoners and
beating them with sticks, then laughing as
they left them bleeding and crying on the
floor. Amnesty International called the incident shocking and urged the government to
prosecute the guards. In a rare reaction from
one of Africa’s most authoritarian governments, on September 27, 2013, Angola
officials suspended 16 prison guards and
firemen in connection with the brutal attack. The prison’s director was among those
suspended, and the Interior Ministry said
criminal charges would likely follow.
Arizona: A Maricopa County jail
employee was murdered in his driveway by
a 15-year-old boy who police said was mo-

tivated by gangs, drugs and guns. The teen,
identified on September 25, 2013 as Leonard Moreno, will be tried as an adult for the
random shooting of Jorge Vargas, 27. Vargas
was an eight-year employee of the sheriff ’s
Custody Support Bureau. Moreno’s mother
and a friend also were arrested, accused of
trying to dispose of evidence and helping
him elude police.
Arkansas: On September 25, 2013, a
man who escaped from a California prison
in 1977 was taken into custody at his home
in Jessieville, Arkansas, where he had been
residing under an assumed name. Michael
Ray Morrow scaled a fence at the California Institute for Men in Chino some 36
years earlier and was living as Carl Frank
Wilson, a church-going grandfather. New
technology was able to match Morrow’s
fingerprints to those of his alias from a 1984
arrest. Morrow, now 70, was extradited to
California.
Australia: A report issued on September 26, 2013 by the Independent
Commission Against Corruption recommended prosecution for a Long Bay prison
guard who showed up for tower duty while
high on ecstasy, sold steroids to both prisoners and fellow guards, and lied to the
commission about his conduct. Robert DiBona worked at the Special Programmes
Centre at the prison. The commission also

Drug Policy Alliance, the nation’s
leading organization working to end the
war on drugs, is looking for cases that might
be eligible for executive clemency in NYS.
If you know of any cases please contact
Anthony Papa at tpapa@drugpolicy.org or
212-613-8037 or write him at Drug Policy
Alliance/131 West 33rd Street/15th Floor /NY,
NY 10001/Attn: Clemency Cases NYS

April 2014

56

recommended that Di-Bona be fired.
California: Danne Desbrow will remember September 17, 2013 as a day with
both good and bad news. First the bad: he
was sentenced to 53 years to life in prison
after being convicted of murder. Then the
good: he got married ... by the same judge
who had just sentenced him. Plus he got to
eat a slice of wedding cake baked by San Diego Superior Court Judge Patricia Cookson,
though there was no honeymoon. Desbrow
intends to appeal his murder conviction.
Canada: Canada’s most notorious
prison, Kingston Penitentiary, officially
closed its doors on September 30, 2013
after 178 years in operation. The shutdown
was a money-saving measure. The prisoners
at Kingston were all transferred to other
facilities and the prison will begin offering
guided tours as a fundraiser for the United
Way. Sometimes called Canada’s Alcatraz,
Kingston Penitentiary opened in 1835,
before Canada was formed as a country.
Colorado: On September 25, 2013, a
Pitkin County jailer obtained a restraining
order against a prisoner who threatened her
family. Deputy Deborah Kendrick sought
the order to prevent Robert Rice from contacting her, her husband – who is a Pitkin
County sheriff ’s deputy – and one of their
family members. Kendrick said Rice had
told her, “When I get out of here, I’m going
to hurt your family.”The order specified that
Rice could have limited contact with Kendrick while he is incarcerated at the jail.
El Salvador: Six Mara Salvatrucha
(MS-13) gang members were hanged during a riot at a juvenile rehabilitation center
in Tonacatepeque on September 24, 2013
– El Salvador’s Prisoners’ Day. Two of the
dead were minors and four were adults who
had been sentenced at a younger age. Police
believe the murders were carefully calculated gang killings. Prisons in El Salvador
are notoriously overcrowded and violent
as thousands of members of the country’s
notorious MS-13 and 18th Street gangs
await trial or serve their sentences. The two
rival gangs signed a truce in March 2012
but there is fear it may be crumbling, with
gang-related murders on the rise.
Florida: On September 26, 2013, Boyd
Wallace Higginbotham, Jr. was sentenced to
life in prison for the March 2008 stabbing
death of fellow prisoner Steven Pritchard
in the mess hall at FCC Coleman in
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 60 of 67

Sumter County. A federal jury found Higginbotham guilty of first-degree murder.
The men had been involved in an argument
that escalated over several days until Higginbotham grabbed Pritchard around the
neck and repeatedly stabbed him.
Florida: Tomoka Correctional Facility
Major Shannon Wiggins, 44, was arrested
on grand theft charges in September 2013.
Wiggins, who worked part-time as a security guard at the Daytona International
Speedway, was charged with stealing more
than $100,000 worth of Speedway merchandise and selling it on eBay. A friend
who was helping him sell the merchandise
has not yet been arrested but is under investigation. Wiggins was placed on leave by the
Florida Department of Corrections.
France: On September 25, 2013,
Sabrina Bonner, 25, and her boyfriend,
prisoner Lionel Barthelemy, 31, each
received 20-year sentences for raping Bonner’s 4-year-old son in 2010 in the visiting
area of the Toul detention center. Behind
visitation room windows covered with black
trash bags, as is standard practice in French
prisons for privacy, Bonner blindfolded the
boy, made him kneel on a chair and held
him by the arms as Barthelemy raped him.
Bonner then returned with her son for a
second visit, knowing that he would be
raped again. A lawyer representing the child
said he intends to initiate legal proceedings
against the prison.
Hawaii: Two Oahu Community Correctional Center guards, Kevin Ignacio and
Ismael Castro, face trial over allegations
that they beat prisoner Jeffrey Diaz bloody

in October 2012. Ignacio is accused of
repeatedly punching Diaz in the head and
face, while Castro was caught on surveillance video kicking him in the head. On
September 17, 2013, Judge Patrick Border
expressed his displeasure when the two
guards failed to appear with their attorneys
at a hearing to combine their criminal
cases.
Illinois: When Cook County jail
guards told prisoner Jeremiah Harris to
pack up to go home on September 16, 2013,
he told them to “quit playin’.” Harris, 25,
who had been serving a 12-year sentence
as a habitual criminal and was being held
at the Cook County jail for a court appearance, became the third person in 2013 to be
mistakenly released. Earlier that year, prisoners Steven Robbins and Steven Derkits
were erroneously released by jailers.
Indiana: Prisoners at the Delaware
County Jail are adjusting to frosted windows in their cells, which let sunlight in
but prevent unauthorized communication
with the outside world. The windows have
been a source of concern in the decades
since the jail was built, because prisoners
sometimes expose themselves or make
obscene gestures to passersby on the street.
Sheriff Mike Scroggins told reporters on
September 3, 2013 that the “fix,” a coating
of paint applied to the windows, had cost
around $91.
Kansas: Ness County Jail escapee
Benito Cardenas, Jr., 38, apologized to his
victims and law enforcement officials before
being sentenced in back-to-back hearings
for a two-day crime spree that occurred

after he cut through four bars at the jail
in August 2012. After escaping, Cardenas
stole a van, burglarized a residence and accosted two women before surrendering to
officers. He was sentenced on September
24, 2013 to 151 months in prison on two
counts of aggravated burglary and a single
count of aggravated escape, to be served
consecutive to his life sentence on unrelated
charges.
Kentucky: Prisoner Ashley Marler,
four months pregnant, escaped twice in
the same week. She failed to return to the
Fayette County Detention Center from a
medical pass on September 16, 2013, and
was arrested the next day and charged with
escape. On September 24, 2013, Marler
was taken to the same medical clinic. She
reportedly left her clothing behind, climbed
into the ceiling and fled wearing only a
towel and white t-shirt. She was recaptured
two days later.
Kentucky: Former FCI Ashland
guard James Lewis and Cindy Gates, the
girlfriend of a prisoner at the facility, both
pleaded not guilty in September 2013 to
charges related to smuggling contraband
into the prison. Gates’ boyfriend, prisoner
Gary Musick, was accused of participating
in the scheme by telling Gates and Lewis
what items to procure and directing other
prisoners to sell the items. The contraband
included marijuana, tobacco, cell phones
and sexually explicit photos.
Louisiana: On September 19, 2013,
Floyd Tillman, 26, pleaded not guilty to
attempted second-degree murder after
ramming the gates of the state peniten-

(Void in New York)

Airway Heights, WA.)

Prison Legal News

57

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 61 of 67
News In Brief (cont.)
tiary at Angola with his car, while guards
opened fire on him. Tillman had taken his
daughters, ages 8 months and 2 years, from
Terrebonne Parish. He then drove to the
prison and argued with guards about taking
a tour. After being told many times there
were no tours that day, he began ramming
the gate. It is anticipated that Tillman’s
defense attorney will seek a mental health
evaluation for his client.
Michigan: An attorney representing
Oakland County jail guard Garry Jackson
told a judge on September 16, 2013 that
Jackson vehemently denied having sexual
contact with a female prisoner in a broom
closet while on duty at the jail. The incident was discovered after other prisoners
started talking about a sexual relationship
between Jackson and a 24-year-old prisoner.
Although the investigation revealed that the

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sex was consensual, Jackson was charged
with three felony counts of criminal sexual
conduct; he was released on $10,000 personal bond and ordered not to have contact
with the female prisoner.
Myanmar: On September 13, 2013,
a riot at Nine Mile Prison in Kawthaung
Township resulted in the death of one
prisoner and injuries to seven others. The
incident was sparked after Warden Saw Hla
Chit ordered prison staff to beat and kick
prisoners Ye Ko Hlaing and Htun Htun in
retaliation for their participation in a fight.
Officials cut the power lines to the facility
in an attempt to disperse the rioters, but
gunfire broke out shortly after the prison
went dark. The prisoner who died, identified as Htay Nge, and the other casualties
suffered gunshot wounds.
New Jersey: Bobby Singletary, 55, a
former guard, was convicted on September
27, 2013 of smuggling heroin and marijuana
into the Adult Diagnostic and Treatment

Center in Avenel, a facility for sex offenders. A prisoner who was tried with him
was acquitted of all charges. Jurors heard
how Singletary had prisoners pay for drugs
by wiring money to outside accomplices;
he was found guilty of conspiracy, official
misconduct and bribery.
New Mexico: Former Columbus Police
Chief Angelo Vega was on the payroll of the
local Juarez Cartel at the same time he collected a $40,000 annual salary for his public
position, according to testimony in federal
court on September 25, 2013. A witness
stated that Vega received $2,000 a month
plus bonuses from the cartel for performing
background and license plate checks, buying
military gear and allowing cartel members to
use official vehicles. Vega’s wife is Assistant
U.S. Attorney Paula Burnett; she has not
been charged with any crime.
New York: As part of a September 30,
2013 plea bargain, prison guard Aaron A.
Netto, 36, agreed to resign from his posi-

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58

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 62 of 67

tion at the Riverview Correctional Facility.
He was charged with possessing property
stolen from several construction sites. In
addition to resigning, he faces up to three
years’ probation and will pay $1,600 in
restitution. Netto entered an Alford plea,
meaning he did not admit to the allegations
but pled guilty to avoid the possibility of
being convicted at trial.
Ohio: On September 18, 2013, three
Ohio Department of Youth Services guards
were arraigned on charges of assaulting a
teenager at the Scioto Juvenile Correctional
Facility. Though details of the incident
were at first sketchy, guards Laurel Jeffreys,
Nathaniel Strong and Antonio Keith were
identified as the suspects who allegedly beat
the unnamed 15-year-old. The state’s Youth
Services agency was recently named in a
U.S. Bureau of Justice Statistics report as
among the worst in the nation for rape and
sexual assaults of juvenile prisoners.
Oklahoma: According to court documents, Shealane Fields, a corporal who was
fired from her job at the Logan County
Detention Center on September 24, 2013,
is accused of committing several felonies
for prisoner Daniel Clark, with whom she
developed a relationship. Fields allegedly
smuggled contraband into the jail for Clark,

including tobacco, a lighter, a flat blade
screwdriver, crazy glue and a cell phone.
Investigators also found 49 love letters,
including one where the couple planned a
tryst in a medical cell and another where
they talked about a plan for Clark to walk
out of the jail.
Oklahoma: Tulsa County jail guard
Cory Laddel Jones, 22, was arrested on
September 21, 2013 on charges of bringing
contraband into the facility for a $100 payment. The arrest report said a prisoner told
jail officials that Jones was paid to smuggle
packages he obtained from a woman he arranged to meet at a convenience store. Jones
was jailed on more than $25,000 bond.
Pennsylvania: On September 17, 2013,
Warden John Walton of the Westmoreland
County Prison announced a new policy instituted by the facility’s contract healthcare
provider that requires all female prisoners
to submit to pregnancy tests. The policy
was created after an unidentified prisoner
lied about not being pregnant and not being addicted to drugs. In order to protect
the well-being of their unborn children,
pregnant prisoners will receive obstetrics
care and be weaned off drugs. Four percent
of female prisoners at the Westmoreland
County Prison were pregnant in the first

nine months of 2013.
Pennsylvania: During a preliminary
hearing on September 27, 2013, details
emerged about why a Bucks County prison
guard fired two gunshots in the direction of
an acquaintance, Pearson Crosby, following
an early morning altercation in June 2013.
Anthony Pekarski, 26, free on $50,000
unsecured bail, was charged with simple
assault, reckless endangering, disorderly
conduct and possession of a weapon. He
admitted firing the shots because his girlfriend, who had been sitting beside Crosby
in the backseat of Pekarski’s car, had an
“uncomfortable look” and he wanted to
scare Crosby away.
Saudi Arabia: On September 25, 2013,
a prisoner returned after a 24-hour family
visit wearing an explosive belt and threatened
to detonate it, taking 200 prisoners hostage
in the process. Prison officials in Madinah
said the man was not mentally ill and made
no demands during the six-hour standoff.
According to a prison source, Saudi media
reports about the incident were not accurate;
the man had a gun as well as explosives. There
were no reports of damage or casualties.
South Carolina: Tyheem Henry,
convicted as the ringleader of a 2011 mob
beating, was serving a 15-year sentence at

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Prison Legal News

59

April 2014

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 63 of 67
News In Brief (cont.)
the Lee Correctional Institute. On September 8, 2013, the website Charleston Thug
Life published Facebook postings Henry
had made using a contraband cell phone,
prompting a shakedown at the prison.
Henry was charged with disciplinary violations, placed in segregation and lost good
time credits and canteen, telephone and
visitation privileges.

South Dakota: Robert Corsini was
serving a seven-day jail term with work
release after being caught in two separate online prostitution stings. In court
on September 10, 2013, a judge found it
“implausible” that Corsini had invited yet
another prostitute he found online to meet
him at his home while he was on work
release. Judge John Schlimgen sentenced
Corsini to 90 more days in jail – this time
without the option of work release.
Tennessee: Hawkins County jail guard

Scott Winkle “laid hands” on a prisoner
while walking him back to a cell following a disturbance. Although the physical
contact did not rise to the level of assault
and no criminal charges were filed, Winkle
was fired on September 19, 2013 for violating county regulations. He had recently
attended a training session on appropriate
physical contact in response to a February
2013 staff-on-prisoner assault incident.
In that case, jailer Roy Junior Mathes was
charged with misdemeanor assault.

Criminal Justice Resources
ACLU National Prison Project

The Exoneration Project

Just Detention International

Handles state and federal conditions of confinement claims affecting large numbers of prisoners.
Publishes the NPP Journal (available online)
and the Prisoners’ Assistance Directory (write for
more information). Contact: ACLU NPP, 915 15th
Street NW, 7th Fl., Washington, DC 20005 (202)
393-4930. www.aclu.org/prisoners-rights/aclunational-prison-project

The Exoneration Project is a non-profit organization dedicated to working to free prisoners who
were wrongfully convicted. The Project represents
innocent individuals in post-conviction legal
proceedings; typical cases involve DNA testing,
coerced confessions, police misconduct, the use
of faulty evidence, junk science, faulty eyewitness
testimony and ineffective assistance of counsel
claims. Contact: The Exoneration Project, 312 North
May Street, Suite 100, Chicago, Illinois 60607 (312)
789-4955. www.exonerationproject.org

Formerly Stop Prisoner Rape, JDI seeks to end
sexual violence against prisoners. Provides
resources for imprisoned and released rape survivors and activists for almost every state. Contact:
JDI, 3325 Wilshire Blvd. #340, Los Angeles, CA
90010 (213) 384-1400. www.justdetention.org

Amnesty International
Compiles information about prisoner torture,
beatings, rape, etc. to include in reports about
U.S. prison conditions; also works on death
penalty issues. Contact: Amnesty International, 5
Penn Plaza, New York NY 10001 (212) 807-8400.
www.amnestyusa.org

Center for Health Justice
Formerly CorrectHELP. Provides information
related to HIV in prison – contact them if you
are not receiving proper HIV medication or are
denied access to programs due to your HIV status. Contact: CHJ, 900 Avila Street, Suite 301, Los
Angeles, CA 90012 (213) 229-0985; HIV Hotline:
(213) 229-0979 (collect calls from prisoners OK).
www.centerforhealthjustice.org

Centurion Ministries
Works to exonerate the wrongfully convicted, in
both cases involving DNA evidence and those that
do not. Centurion only takes 1-2 new cases a year
involving actual innocence. They do not consider
accidental death or self-defense murder cases, he
said/she said rape cases, or child abuse or child sex
abuse cases unless there is physical evidence. All
case inquiries must be from the prisoner involved,
in writing. Contact: Centurion Ministries, 1000
Herrontown Road, Princeton, NJ 08540 (609) 9210334. www.centurionministries.org

Critical Resistance
Seeks to build an international movement to
abolish the Prison Industrial Complex, with offices in Florida, California, New York, Texas and
Louisiana. Publishes The Abolitionist newsletter.
Contact: Critical Resistance, 1904 Franklin Street
#504, Oakland, CA 94612 (510) 444-0484. www.
criticalresistance.org

April 2014

Family & Corrections Network
Primarily provides online resources for families
of prisoners related to parenting, children of
prisoners, prison visitation, mothers and fathers in
prison, etc. Contact: F&CN, 93 Old York Road, Suite
1 #510, Jenkintown, PA 19046 (215) 576-1110.
www.fcnetwork.org

FAMM
FAMM (Families Against Mandatory Minimums)
advocates against mandatory minimum sentencing laws with an emphasis on federal laws, and
works to “shift resources from excessive incarceration to law enforcement and other programs
proven to reduce crime and recidivism.” Contact:
FAMM, 1100 H Street, NW #1000, Washington, DC
20005 (202) 822-6700). www.famm.org

The Fortune Society
Provides post-release services and programs for
prisoners in the New York City area and occasionally publishes Fortune News, a free publication for
prisoners that deals with criminal justice issues,
primarily in New York. Contact: The Fortune
Society, 29-76 Northern Blvd., Long Island City, NY
11101 (212) 691-7554. www.fortunesociety.org

Justice Denied
Although no longer publishing a print magazine,
Justice Denied continues to provide the most
comprehensive coverage of wrongful convictions and how and why they occur. Their content
is available online, which includes all back issues
of the Justice Denied magazine and a database
of more than 4,500 wrongfully convicted people.
Contact: Justice Denied, P.O. Box 68911, Seattle,
WA 98168 (206) 335-4254. www.justicedenied.org

National CURE
Citizens United for Rehabilitation of Errants (CURE)
is a national organization with state and special
interest chapters (such as federal prisoners and
sex offenders) that advocates for rehabilitative
opportunities for prisoners and less reliance on
incarceration. Publishes the CURE Newsletter, $2
annual membership for prisoners. Contact: CURE,
P.O. Box 2310, Washington, DC 20013-2310 (202)
789-2126. www.curenational.org

November Coalition
Advocates against the war on drugs and previously published the Razor Wire, a bi-annual
newsletter on drug war-related issues, releasing
drug war prisoners and restoring civil rights. No
longer regularly published, back issues are available online. Contact: November Coalition, 282
West Astor, Colville, WA 99114 (509) 684-1550.
www.november.org

Innocence Project

Prison Activist Resource Center

Provides advocacy for wrongfully convicted
prisoners whose cases involve DNA evidence and
are at the post-conviction appeal stage. Maintains
an online list of state-by-state innocence projects.
Contact: Innocence Project, 40 Worth St., Suite
701, New York, NY 10013 (212) 364-5340. www.
innocenceproject.org

PARC is a prison abolitionist group committed to
exposing and challenging all forms of institutionalized racism, sexism, able-ism, heterosexism and
classism, specifically within the Prison Industrial Complex. PARC produces a free resource
directory for prisoners. Contact: PARC, P.O. Box
70447, Oakland, CA 94612 (510) 893-4648. www.
prisonactivist.org

60

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-2 Filed 11/06/15 Page 64 of 67

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Spanish-English/English-Spanish Dictionary, 2nd ed. Random House.
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Actual Innocence: When Justice Goes Wrong and How to Make it Right,
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practical and comprehensive guide for ex-convicts and their families for
managing successful re-entry into the community, and includes information
about budgets, job searches, family issues, preparing for
release while still incarcerated, and more.
1080

Law Dictionary, Random House Webster’s, 525 pages. $19.95. Comprehensive
up-to-date law dictionary explains more than 8,500 legal terms.
Covers civil, criminal, commercial and international law.
1036
The Blue Book of Grammar and Punctuation, by Jane Straus, 110
pages. $14.95. A guide to grammar and punctuation by an educator with experience teaching English to prisoners. 1046
Legal Research: How to Find and Understand the Law, by Stephen Elias
and Susan Levinkind, 568 pages. $49.99. Comprehensive and easy to understand guide on researching the law. Explains case law, statutes
and digests, etc. Includes practice exercises.
1059
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Jailhouse Lawyers: Prisoners Defending Prisoners v. the U.S.A., by
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Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 1 of 142

EXHIBIT E

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 2 of 142

ARIZONA DEPARTMENT OF CORRECTIONS
Notice of Resutt~Publication Review

Review Date

Name Of Publication

ISBN or VolIN

Publication Date

11/25/2014

Prison Legal News

V. 25 N. 4

april 2014

I he Omce of PotmcaUOfrRevie'W has

o

Allowed

reV1eW~Q the aDovs:-l'IWfftlOMCI' lIidMdual pobtle3HOIi 3iKlIias detemrtl1'sd illal the

EI

Ii i([\Vldual

pobltcallol i

i',

ll'im~"~~'~'~'~'~"-"l;~'-'+'-""'i,

E x c l u d e d )

Per 00 914.08InmateMail-Unl;\uthorizedPub!1cationsandMaterial.itis determined that this individua1 publicatlon iG excluded.
For the complete exclusion explanations refer to 00 914 directly. Tbe >IX" indlcatgs the speclflc vIQlatlQo(s)

• Refer to the revised DO 914, Inmate Mal! for information on Second Reviews as the policy has changed to include two separate
Second Review pro~sses. Second Reviaw decisions are not grievable through the traditional grievance process and exhaust
Inmates' administrative remedies.
Inmates must go to the assigned Complex/Stand~AlonF) Unit Publication Review staff for all Publication Review~related
• questiom1/concerns inchJdlng requesting Second Rev[ews prlorto writing to the OffIce of Publication Review. Letters to the Office
of Publication Review that do not lndlcare that the Inmate first addressed the issue with ComplexlStand..Alone Unit Publication
Review staff ma¥ be returned unprocessed or forwarded to the COmplex/Stand-Alone Unl,t PubJ1catlon Review staff for response,
• To prevent from ordering previously excluded publications or publications thm may be In violation of polley, Inmates can 'Mite to
their ComplexfStand~Alone Lhlt. Publication Review staff concerning up to 10 individual pub!1catlons providing the publication
Information.
tfyour copy of a publication was used by the Office of Publication Review In tha de~rmjnf,ltlon that an individual publlca1ion Is
• excluded, your copy will be held for 90 days IT no Second Review is requested or 3 years If a Second Review was requested and
the exclusion was upheld. If you are to be released prior to this 90 day or 3 year period, please inform your ComplexJStand~Alone
Unit Publication Review staff 6-8 weeks prior to the release date.
OTHER EXCLUSION:

914--5

9/1111

k

,

I

i
I

'~I

"i'

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 3 of 142

EXHIBIT F

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 4 of 142

ARIZONA DEPARTMENT OF CORRECTIONS
Notice of Result-Publication Review
... "._,-"'--- - , ,--

""

!Review Date

"'"-",._".".- ... ,..

. .•. _. -._." _. '--'- "

3/18/2015

....................

······rISBN~rV~liN

tv. 25'N:4

[Name Of Publication
Prison Legal News

·······ip~bii~~ii~~D~t~·

,J

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lapril2014

The Office of Publication Review has reviewed the above-mentioned tndivklual publication and has determined that the Individual publication wlU be:

Per DO 914.08 Inmate Mall-Unauthorized Publlcations andMaterial,itis determined that this individual publication Is excluded.
For the complete exclysion explanations, refer to DO 914 directly The ")(" indicates the specific violatlon(s).

i X r·······
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Description
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,

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111

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1.1.24

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1.1.13

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1.1.25

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Modification

1.1.14

."~,I,I

Cipher/Code

,,-~ ,-"~,,

Hands, Feet, or Head as i
Weapons/Fighting
. Techniques/Self-Defense ;

1.1.17

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1.1,9 I,: Computer/Electronlcsl
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Unacceptable Sexual or
Hostile Behaviors

1.1.18

or Cultivation of Drugs, i
t Narcotics. PolsonslBrewlng
;';
Alcohol
~,

Making of Incense
1.1.27

!:
!.

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1.1.21

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1.1.22
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~.. _.".~_,.. ,~_:.~,:.~.~".. _j __ .____ ~~~~~.~..~~eft
;

1.1.11

i

Escape/Elude Capture

• Refer to the revised DO 914, Inmate Mall for information on Second Reviews as the policy has changed to include two separate
second Review processes. Second Review dectsions are not grievable through the traditional grievance process and exhaust
inmates' administrative remedies.
Inmates must go 10 the assigned Complex/Stand-Alone Unit Publicatlon Review staff for all Publication Review-related
• questions/concerns including requesting Second Reviews prIor to writing to the Office of Publication Review. Letters to the Office
of Publication Review that do not indicate that the inmate first addressed the Issue with Complex/Stand-Alone Unit Publication
Review staff may be returned unprocessed or forwarded to the Complex/Stand-Alone Unit Publication Review staff for response.
• To prevent from ordering previously excluded publications or publications that may be in violation of policy, inmates can write to
their CompleX/Stand-Alone Unit Publication Revf6w staff concerning up to 10 individual publications providing the publication
Information.
If your copy of a publication was used by the Office of Publication Review in the determination that an Individual publication is
• excluded, your copy will be held for 90 days if no Second Review is requested or 3 years if a Second Review was requested and
the exclusion was upheld. If you are to be released prior to thIs 90 day or 3 year period, please inform your Comp!eX/Stand~Alone
Unit Publication Review staff 6-8 weeks prior to the release date.

OTHER EXCLUSION:

914el;
9/1/11

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 5 of 142

EXHIBIT G

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 6 of 142

Prison Legal News
VOL. 25 No. 7
ISSN 1075-7678

Dedicated to Protecting Human Rights

July 2014

Systemic Changes Follow Murder of Colorado Prison Director
by John Dannenberg

J

ust over a year after Colorado
Department of Corrections Director Tom
Clements was killed by former prisoner Evan
Ebel, who had been released directly from
long-term solitary confinement, there have
been significant and far-reaching changes in
Colorado’s prison system.
Following a police chase, Ebel, 28, was
killed in a shootout with Texas law enforcement officers on March 21, 2013. Autopsy
results later obtained by The Denver Post
confirmed that he died from a gunshot
wound to the forehead. Prior to the chase,
Ebel had been stopped in his 1991 black
Cadillac DeVille for a traffic offense and
shot Texas deputy James Boyd multiple
times, hitting him in the shoulder and chest
and grazing his head.
Ebel spent nearly all of his eight years

Inside
From the Editor

10

Bonnie Kerness & Solitary Confinement

12

PLN Suit vs. Ventura County, CA

16

Oregon Parole Board Answers to Nobody? 18
New Hepatitis C Treatment

20

Prison Phone Issues in Louisiana

26

LA County Probation Officer Arrests

32

Same-Sex Marriage for Prisoners

38

Spoliation of Evidence in NY Suit

42

NC Repeals Racial Justice Act

44

Legally Innocent in North Carolina

48

Do Faith-Based Prisons Work?

50

News in Brief

56

in prison in solitary confinement, known in
Colorado as administrative segregation (adseg). His father, well-known attorney Jack
Ebel, who was close to Colorado Governor
John Hickenlooper, had previously said
his son suffered from behavioral problems
as a child, and that solitary damaged him
even more.
“What I have seen over six years is,
[Evan] has a high level of paranoia and [is]
extremely anxious,” Jack Ebel said at a state
Senate Judiciary Committee hearing in 2011,
when he testified about the effects of solitary
confinement. “He may have had mental
conditions going on. But they are exacerbated
to the point that I hardly recognize my son
sometimes. We are creating mental illness. We
are exacerbating mental illness.”

Murders and Aftermath
Colorado authorities said Ebel first
lured Domino’s pizza deliveryman Nathan
Leon to a truck stop in Denver on March
17, 2013, supposedly to deliver a pizza, then
shot him to death. Before killing Leon, Ebel
forced him to read a statement into a tape
recorder criticizing the prison system’s use
of solitary confinement.
“[Y]ou didn’t give two [expletive] about
us or our families and you ensured that we
were locked behind a door, to disrespect us
at every opportunity, so why should we care
about you and yours,” a transcript of the
recording stated. “In short, you treated us
inhumanely, and so we simply seek to do the
same, we take [comfort] in the knowledge
that we leave your wives without husbands,
and your children fatherless. You wanted to
play the mad scientist, well they [prisoners
held in solitary] will be your Frankenstein.”
Ebel took Leon’s pizza delivery uniform and, two days later, on March 19,
wore it to the Clements’ secluded home

in Monument, Colorado, about an hour
south of Denver. Lisa Clements, director of
the Colorado Human Services’ Behavioral
Health Office, said she and her husband
were watching TV when the doorbell rang.
Tom Clements answered the door and Ebel
shot him at point-blank range. Lisa said he
died in her arms.
Ebel then hid out in Colorado Springs
for two days before heading to Texas, where
he was killed by officers following his shooting of Deputy Boyd, who survived.
In an August 26, 2013 article, The
Denver Post quoted a source who described
details of the investigation into Clements’
death, based on sealed court documents.
The newspaper said the source, who spoke
on the condition of anonymity, had “direct
access to and knowledge of the documents
and the investigation itself.”
The source said investigators traced
Ebel to a white supremacist prison gang
known as the 211 Crew, and the gang
might have orchestrated Clements’ killing.
Federal and state authorities thought Ebel
may have been recruited by gang founder
Benjamin Davis to kill Clements to repay a
debt, the source said. Both men had served
sentences at the same time at the Sterling
prison where Ebel, reportedly a member of
211 Crew, was targeted by a rival gang.
“Ebel had been threatened,” the source
told the Post. “Davis stepped in and saved
him.”
According to the source, Davis then
told Ebel that he expected a favor in return
once Ebel was released from prison. Clements had ordered 211 Crew members to
be separated and transferred to other facilities, which may have made him a target of
the gang.
Another theory considered by investigators was that Clements’ killing might

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 7 of 142

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July 2014

2

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 8 of 142

Prison Legal News

a publication of the
Human Rights Defense Center

www.humanrightsdefensecenter.org
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Prison Legal News

Colorado DOC Murder (cont.)
have been linked to his decision to deny
a request by a Saudi Arabian prisoner to
return to his native country to serve out the
remainder of his prison sentence.
Attorneys for Homaidan al-Turki,
who was sentenced on charges of sexually
assaulting his maid, denied that their client was involved in Clements’ murder, but
investigators said they were looking into
whether there are any connections, financial or otherwise, between al-Turki and the
211 Crew.
Investigators suspected that Ebel was
headed to Texas after the killings, to the
home of a paroled 211 Crew member who
lived south of Dallas. After Ebel was killed
in the Texas police shootout, authorities
found his cell phone and tracked calls he
had made while on parole. He also had a
hit list with the names of 20 other prison
and law enforcement officials; the names on
the list have not been disclosed.
Phone records confirmed that Ebel frequently contacted other 211 Crew members
who had been released from prison, and that
he made or received 23 calls in one 24-hour
period, including the hours just before and
after Clements was murdered, the source
said. According to El Paso County Sheriff ’s
Lt. Jeff Kramer, Ebel made the calls to fellow gang members.
“There’s a pretty logical chain of
evidence in this case,” the source told The
Denver Post. “It would be highly coincidental if [Ebel] had done all this on his own
and there were 23 calls between him and
other gang members around [the time of ]
Clements’ murder. There is just too much
there, and they are all 211 Crew members.
It sounds like everything points to 211.”
Then again, it’s equally possible that
Ebel was simply contacting people he had
known in prison, which included gang
members, because he had no one else to
reach out to after he was released.
In March 2014, Lisa Clements said
she was frustrated at how slowly the investigation into her husband’s murder was
progressing. She said she was concerned
that the various agencies involved in the
investigation were not doing enough to
coordinate their efforts: “Each of them have
a piece of the picture, but the whole picture
is missing.”
She also stated she didn’t want people

3

in Colorado to forget that authorities have
not solved the case. “I realize that as impactful as Tom’s life and his death was for
our family, that it’s human nature for the
public, for us as individuals, to sort of get
on with life.”
“Grief takes a while,” she continued.
“In the days and months that followed
Tom’s murder, we had our hands full with
all that we could do to get through days.
As we’ve begun to address our trauma from
that night, and the grief since, we perhaps
in our healing process have more space to
recognize anger, as well.”
El Paso County Sheriff Terry Maketa
said his department is determined to get to
the bottom of Clements’ murder.
“I want her to know that we are not going to give up. It would be really easy to say,
‘We know who pulled the gun and shot Dr.
Clements,’” Maketa said. “We could easily
close out our case and move down the road.
But that isn’t the responsible thing to do.”
He added, “It’s just a very slow process.
This isn’t Hollywood.”
The El Paso County Sheriff ’s Office
is the lead agency in the investigation,
which also involves the Department of
Corrections (DOC), the FBI and other
law enforcement officials. According to an
unnamed source, in August 2013, El Paso
County Judge Jonathan L. Walker, who had
issued search warrants as part of the investigation into Clements’ death, went into
hiding due to allegations that 211 Crew
leaders had placed a “hit” on him.

Who Was Evan Ebel?
Ebel had a well-documented history
as a violent and troubled individual both
before and during his time in prison. According to public records, Ebel went on a
crime spree as a teenager, then a second
spree which included a carjacking in 2005
that resulted in an eight-year prison sentence. After he was incarcerated his criminal
behavior escalated.
On September 17, 2005, Ebel threatened to kill a female prison guard, telling
her “that he would kill her if he ever saw
her on the streets and that he would make
her beg for her life.”
Later in 2005 and again in 2006, Ebel
threatened to kill staff members in two
different prisons. In another incident, he
threatened to beat guards if they didn’t
handcuff him. Overall, Ebel received 28
disciplinary charges, including four for asJuly 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 9 of 142
Colorado DOC Murder (cont.)
sault and three for fighting, as well as two
for disobeying direct orders. According to
prison reports, he sometimes injured himself and smeared feces on his cell door and
the door of another prisoner.
While in solitary, Ebel came to be
known by other prisoners as “Evil Ebel.”
Prison records showed he was tattooed with
Nazi symbols and had the word “hopeless”
tattooed across his stomach and “hate”
inked on his right hand.
He expressed his frustrations with the
prison system through letters and poems
sent to his mother and to a project called
Incarcerated Voices, which provides “free
speech radio by and for prisoners.”
In a June 2012 poem titled “Life,” Ebel
wrote: “I’ve looked in the mirror and don’t
even recognize / This thing staring back at
me / Though I see your death implicit in its

eyes / And really that’s all I care to see.”
“It’s clear that solitary changed him.
He didn’t recognize himself in the mirror,”
noted Dr. Scott Washington, director of
advocacy for Incarcerated Voices. “Ideally,
somebody would have been working with
him to address those problems before he
was released.”
Ebel filed several grievances with
prison officials while he was in solitary. “Do
you have an obligation to the public to reacclimate me, the dangerous inmate, to being
around other human beings prior to being
released and, if not, why?” he asked. Prison
staff responded to his last grievance after he
was already out, writing, “you claim that you
are just looking for answer [sic] to questions
about policy. Grievance Procedures is not
the appropriate method for debating policy
questions nor is it designed to address the
policy questions you have posed.”
Colorado state prisoner Troy Anderson, who served time with Ebel, said Ebel
“was consumed by what they did to him.”
“You know, what they do through their
solitary policies is akin to rape. They steal
such a precious part of our souls, our humanity, our ability to be,” he added. “They
committed such hateful acts on us. Through
contempt and disdain they breed rage. They
stole his chance at any real future.”
Anderson is no stranger to solitary
himself. On August 24, 2012, a Colorado
federal district court held that Anderson’s
long-term confinement in ad-seg violated
his constitutional rights. “With the exception of approximately one month in 2001
... [Anderson] has not been out of doors for

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Ebel was released from prison directly
from solitary confinement when he reached
his mandatory parole date on January 28,
2013. A prerelease assessment said he was
considered a “very high risk” for recidivism.
Two months later, he cut off the ankle
monitor he wore as a condition of his parole
before killing Nathan Leon and then Tom
Clements.
Although the investigation into Clements’ death still remains open, including
whether Ebel acted alone, it appears that his
murder was not related to the 211 Crew or
Saudi prisoner Homaidan al-Turki. Rather,
the evidence points to Ebel’s lengthy stay
in solitary confinement and its impact on
his mental health as the catalyst for Clements’ murder.
According to former prisoner Ryan
Pettigrew, who served time with Ebel, “This
is what he planned to do as his final getback at the system.”
Ironically, Tom Clements had pushed
hard for reforms during his slightly more
than two-year tenure as director of the
Colorado DOC. Colleagues said he was
especially concerned about finding ways to
eliminate the DOC’s reliance on solitary
confinement, particularly when it was used
to control dangerous and violent prisoners

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12 years,” the court wrote. Prison officials
were ordered to provide him with at least
one hour of outside recreation three times
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4

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 10 of 142

such as Ebel, and to provide prisoners being
released from solitary with counseling and
therapy to help them successfully transition
back into society.
“Evan Ebel was exactly what Tom
warned us about every single day,” said
Roxane White, chief of staff for Governor
Hickenlooper.
Indeed, the damaging effects of solitary
confinement on prisoners’ mental health are
both well-documented and well-known;
long-term isolation worsens existing psychological problems and can drive the sane
insane. [See: PLN, Oct. 2012, p.1].
The American Civil Liberties Union
of Colorado heaped posthumous praise on
Clements for his efforts as a reform-minded
prison director.
“Mr. Clements never saw a contradiction between protecting human rights, fiscal
responsibility and protecting institutional
security,” stated ACLU staff attorney Rebecca Wallace. “He thought they all could
be met simultaneously. That belief is no
more clear than in his work on ad-seg.”
Wallace said the ACLU, which has a
history of litigation against the Colorado
DOC, “didn’t file a single lawsuit against

the Department during Mr. Clements’
tenure.”
Paul Herman, a colleague and longtime
friend of Clements, remarked, “Here you
had two people [Ebel and Clements], one
who suffered significantly from solitary
confinement and the other who was trying
to do something about it.”
“If what happened to Tom isn’t the
ultimate irony,” he said, “I don’t know
what is.”

Changes Follow Clements’ Death
There have been several major changes
in the Colorado DOC as a result of Clements’ death. As one example, The Denver
Post reported on March 16, 2014 that the
state’s prison population has been rising
due to fewer paroles being granted – an
8% decrease in paroles since before Clements was murdered. Meanwhile, the
number of technical parole violations has
increased and the Fugitive Apprehension
Unit has captured over 400 parolees who
had absconded.
Rick Raemisch, who replaced Clements as director of the Colorado DOC,
said it was “human nature” that parole

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Prison Legal News

officials would be stricter in the wake of
Clements’ death. After Ebel removed his
ankle monitor and absconded from parole,
it took almost a week before officials sought
a warrant for his arrest.
“I don’t like it, but I understand it,”
stated Michael Dell with Colorado-CURE,
a prisoners’ advocacy group. “When parole
board members see what happened to
Tom Clements, they are not going to take
a gamble on someone else.”
State Parole Chief Tim Hand was
placed on paid administrative leave following Clements’ murder and later fired.
Further, the investigation into Clements’ death determined that Ebel had been
released from prison four years early due to
a clerical error. A district court had failed
to specify that his four-year sentence for
assaulting a prison guard was to be served
consecutive to his 8-year sentence for carjacking. As a result the sentences were run
concurrently, leading to Ebel’s early release
in January 2013. His sentence had also been
reduced by about four months under a law,
SB11-176 – approved of by Clements – that
allowed prisoners to earn good behavior
credits during time spent in ad-seg.

5

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July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 11 of 142
Colorado DOC Murder (cont.)
However, Clements had opposed provisions in the original bill that would have
placed restrictions on the DOC’s ability to
hold mentally ill prisoners in solitary.
“[Clements] was concerned about
the administrative segregation population,
and he asked Sen. Carroll and I to scale
the bill back a little because it featured a
number of requirements for the DOC to
change administrative segregation,” said
state Rep. Claire Levy. “The original bill,
for example, wanted [the DOC] to have
more psychiatric resources available. They
would have had to make more checks on
mental health. We scaled the bill back at
Clements’ request.”
In May 2013, Governor Hickenlooper
signed into law legislation that requires the
Department of Corrections to seek clarification from the court if a sentencing order
does not indicate whether a sentence is to
be served concurrently with or consecutive
to another sentence. The DOC has two
business days to request clarification and
the court has two days to respond.

Hickenlooper also ordered an audit
to determine whether clerical errors had
resulted in other erroneous early releases.
By August 2013, judges had reviewed 1,514
cases and corrected the sentences for 267
prisoners. Nine who had already been released were returned to prison to serve out
their full terms.
Most notably, there have been changes
in the Colorado DOC’s use of ad-seg and
the number of prisoners released directly
from solitary to the community. According
to Raemisch, the DOC’s ad-seg population
has declined from 1,511 in 2011 to 590 as
of March 2014. The number of prisoners
released from prison directly from solitary
has dropped from 70 last year to just one
or two a month in early 2014.
“We have people that are well trained
on how to handle dangerous people, and
yet we felt they are too dangerous to be in
general population, so we’ll put them in administrative segregation and then, ‘oh by the
way,’ release them into the community. It just
doesn’t make any sense,” Raemisch said.
In fact, Raemisch spent a day locked
in an ad-seg cell at the Colorado State
Penitentiary to see what it was like – an

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experience that led him to curtail the use
of solitary confinement, particularly for
prisoners with mental health problems. [See
article in this issue of PLN, p. 8].
There was still room for improvement,
however.
A report issued by the Colorado
ACLU in July 2013 found that prison
officials continued “to rely on long-term
solitary confinement to manage mentally ill
prisoners, often for months or even years.”
The report, titled “Out of Sight, Out of
Mind,” noted that during Tom Clements’
tenure the Colorado DOC started the
Residential Treatment Program (RTP) to
provide treatment to mentally ill prisoners.
However, according to ACLU public policy
director Denise Maes, “The information
that we’re getting is that RTP looks very
much like ad-seg.”
A December 10, 2013 memo issued
by the DOC stated that wardens were no
longer allowed to place prisoners with a
“major mental illnesses” in solitary.
“This is an enormous foundational
step toward getting seriously mentally ill
prisoners out of solitary confinement and
into treatment,” stated ACLU staff attorney Rebecca Wallace. “There is still more
important work to be done, but we want to
take this moment to recognize something
we have been asking the Department of
Corrections to do for years.”
Still, the policy change did not apply to
prisoners who have mental health problems

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Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 12 of 142

but have not been diagnosed with a “major”
mental illness.
“As an initial matter, we remain concerned that the definition of major mental
illness adopted by the [Colorado DOC] is
too narrow and that there are still prisoners in administrative segregation who are
seriously mentally ill and should not be
placed in prolonged solitary confinement,”
the ACLU stated.
In April 2014, the Colorado General
Assembly passed a bill, SB14-064, that
would make it more difficult to place mentally ill prisoners in solitary absent exigent
circumstances; the bill had passed the senate
unanimously.
“Today’s vote moves Colorado one
step closer to realizing the former director’s
stated desire of bringing greater safety to
the public and humanity to the prisons by
ending our state’s historic over-reliance on
solitary confinement,” the Colorado ACLU
said in a statement.
The bill was signed into law by Governor Hickenlooper on June 6, 2014. “[A]s
of today, we have no offenders with mental
illness in solitary confinement,” said a
spokesman for the DOC. Colorado was

Prison Legal News

the second state – after New York – to
enact legislation to remove mentally ill
prisoners from solitary.

Conclusion
As a postscript to Clements’ murder,
authorities investigated where Ebel had
obtained the 9mm handgun he used to kill
Clements and Leon. They discovered the
gun had been purchased by Stevie Marie
Anne Vigil, a childhood friend of Ebel’s,
who gave it to him shortly before the killings. Vigil pleaded guilty to providing a
firearm to a convicted felon, and on March
3, 2014 she was sentenced to 27 months in
federal prison. These was no evidence that
she knew Ebel had planned to use the gun
to commit the murders.
Ultimately, no one escaped the damaging consequences of Ebel’s actions – not
Vigil, nor the families of Tom Clements and
Nathan Leon, nor Texas deputy James Boyd
or the Colorado prisoners who now have a
more difficult time making parole, nor Ebel
himself and his family members.
“I’m angry at the horrific senselessness,” said Lisa Clements. “I’m angry that
it impacted not just one individual [but

7

also] our entire family, our community, our
friends, our neighbors, our loved ones.”
While “Evil” Evan Ebel has been
vilified for murdering Clements, and an
investigation continues into the possible
involvement of the 211 Crew prison gang,
few have condemned the Colorado DOC’s
treatment of mentally ill prisoners and use
of long-term ad-seg as factors that directly
contributed to Clements’ death. As Ebel
himself had said, the prison system creates monsters; thus, society should not be
surprised when those monsters are released
with predictable results.
“In Colorado, by using solitary confinement as the default for mentally ill
prisoners, we’re doing the least safe thing
for the most amount of money,” observed
state Senator Jessie Ulibarri. “The case of
Evan Ebel and Tom Clements is the most
extreme example of that.”
Sources: CNN, The Denver Post, Colorado
Independent, Associated Press, www.officer.
com, www.gazette.com, www.rawstory.com,
Huffington Post, www.aclu.org, www.acluco.
org, The Atlantic, Los Angeles Times, www.
incarceratedvoices.com

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 13 of 142

Two Corrections Chiefs Serve Time in Segregation

R

ick Raemisch, Colorado’s new
corrections director, wanted to better understand the experience of solitary
confinement – so he spent a night in segregation at a state prison.
Raemisch had been on the job for
seven months when he decided to stay
overnight in an ad seg cell at the Colorado
State Penitentiary. “I thought he was crazy,”
said Warden Travis Trani, who added, “I
also admired him for wanting to have the
experience.” Trani received only nine hours
notice that his boss was arriving for an
extended visit.
On January 23, 2014, just after 7:00
p.m., Raemisch, handcuffed and shackled
and wearing a prison uniform, entered cell
22. He was classified as “RFP,” or “Removed
From Population.” After being uncuffed
through the food slot he was left alone in
the 7-by-13-foot cell.
In an editorial published in The New
York Times on February 20, Raemisch said
the experience was challenging.
“First thing you notice is that it’s anything but quiet. You’re immersed in a drone
of garbled noise: other inmates, blaring
TVs, distant conversations, shouted arguments. I couldn’t make sense of any of it,
and was left feeling twitchy and paranoid,”
he wrote. “I kept waiting for the lights to
turn off, to signal the end of the day. But
the lights did not shut off. I began to count
the small holes carved in the walls. Tiny
grooves made by inmates who’d chipped
away at the cell as the cell chipped away at
them. For a sound mind, those are daunting
circumstances. But every prison in America
has become a dumping ground for the mentally ill, and often the ‘worst of the worst,’
some of society’s most unsound minds, are
dumped in Ad Seg.”
Raemisch then described some of the
day-to-day routine that prisoners in solitary
endure for years – sometimes decades.
“[T]here were the counts. According
to the Ad Seg rules, within every 24-hour
period there are five scheduled counts and
at least two random ones. They are announced over the intercom and prisoners
must stand with their feet visible to the
officer as he looks through the door’s small
window. As executive director, I praise the
dedication, but as someone trying to sleep
July 2014

by Christopher Zoukis
and rest my mind, forget it. I learned later
that a number of inmates make earplugs
out of toilet paper.... When 6:15 a.m. and
breakfast finally came, I brushed my teeth,
washed my face, did two sets of push-ups,
and made my bed. I looked out my small
window, saw that it was still dark outside,
and thought, now what?”
Raemisch said that by 11:30 a.m. the
next day, he broke a promise to himself
and asked a guard what time it was. “I felt
like I had been there for days. I sat with
my mind. How long would it take before
Ad Seg chipped that away? I don’t know,
but I’m confident that it would be a battle
I would lose,” he wrote.
After Raemisch, 61, took over as
Colorado’s top prison official following the
murder of his predecessor, Tom Clements,
by a prisoner who was released directly from
solitary, he decided to continue Clements’
efforts to curtail the use of long-term segregation. Clements had reduced Colorado’s
solitary population from about 1,500 to
726; Raemisch has since cut that number
to under 600.
Raemisch shared his experience at a
U.S. Senate subcommittee hearing on the
topic of solitary confinement in February
2014, saying segregation was “overused,
misused, and abused” in America’s prisons.
His comments were received by many
well-wishers, including officials with the
ACLU, who joked that other corrections
commissioners might want to take “the
Colorado challenge.”
Predictably, some criticized Raemisch
for being “soft” on criminals or for trying
to grandstand through his brief stint in
solitary.
Raemisch said he was moved by the
experience. “Everything you know about
treating human beings, [segregation’s] not
the way to do it,” he stated. “When I finally left my cell at 3 p.m., I felt even more
urgency for reform. If we can’t eliminate
solitary confinement, at least we can strive
to greatly reduce its use. Knowing that 97
percent of inmates are ultimately returned
to their communities, doing anything less
would be both counterproductive and
inhumane.”
Raemisch spent just 20 hours in segregation – a short time, but long enough

8

to make a lasting impression. On average,
Colorado prisoners sent to solitary stay 23
months.
At least one other corrections chief has
served time in segregation to gain empirical
experience of what it’s like. On May 2, 2014,
New Mexico Corrections Department Secretary Gregg Marcantel, 53, entered cell 106
in E pod at the state penitentiary in Santa
Fe for a 48-hour visit.
“I can tell you, pacing it, I had five large
paces from the edge of my bed to the door.
I traveled that route quite a bit,” he said.
“It’s where I ate, where I exercised, where
my toilet was. I didn’t, for 48 hours, speak
a word. I did internal dialog, but I didn’t
speak a word to another person.”
Marcantel said he wanted the experience to be as authentic as possible, even
though he knew it was for only a short
time. He spent the first day under conditions of adminstrative seg and the last day
in disciplinary segregation.
“There are just things sometimes that
you gotta feel, you gotta taste, and you gotta
hear and you gotta smell,” he noted.
Although he tried to play the part – arriving in restraints, wearing prison clothes,
growing a beard to hide his appearance
and pretending to be deaf and mute so he
wouldn’t have to speak – other prisoners in
the unit became suspicious and assumed
he was a cop.
Marcantel said it got “ugly” and
“tense.”
His brief time in solitary was recorded
on a video camera as he paced, read books,
looked out the cell window and ate prison
food.
“You start after a while to count everything, because that’s how you kind of grab
a little bit of control,” he observed. “You
become a lot more detail-oriented about
what your environment looks like.”
Marcantel said he made several policy
changes based on his experience in segregation; according to one news report, 60 to
80 New Mexico state prisoners have since
been moved from solitary confinement to
the general prison population.
Sources: www.nytimes.com, www.abqjournal.com, Wisconsin State Journal, www.kob.
com
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 14 of 142

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9

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 15 of 142

From the Editor
by Paul Wright

S

ince we began publishing PLN in
1990 we have documented the horrific effects of solitary confinement and its
overall goal and purpose of psychologically
destroying prisoners subjected to long-term
isolation. It’s not a coincidence that the rise
of solitary confinement in the U.S. began
in the 1970s just as American courts were
ending the use of corporal punishment as
a form of discipline by prison officials. For
example, as recently as the early 1970s prisoners were still being flogged with leather
straps in Tennessee and Arkansas.
The rise of solitary confinement also
coincided with the successful use of longterm isolation and sensory deprivation by the
U.S. as a torture and interrogation technique
against freedom fighters and anti-imperialists
in Vietnam, South America and elsewhere.
What began as a counter-insurgency tactic
overseas is now routinely used against an
estimated 80,000 U.S. prisoners on a daily
basis – the vast majority of whom harbor no
animus toward the government that imprisons them but are simply a little too poor, a
little too mentally ill, not law abiding enough
or not subservient enough to stay out of prison
or, once incarcerated, to avoid being placed in
solitary. As states and the federal government
spent billions to build supermax prisons, it was
no surprise they would be filled with whoever
was available to fill them.
Colorado was among the states that
invested in solitary confinement as a means
of controlling – and torturing – prisoners.
After decades of using long-term segregation, it appeared there was some modest
hope for change when Tom Clements was

appointed director of the Colorado DOC
and began to curtail the use of solitary.
I met Clements at a conference on
supermax prisons several years ago at Columbia Law School, where we were both
speakers. He discussed his efforts to reduce
the use of isolation in Colorado, which had
already been moderately successful. He
seemed genuinely committed to the notion
of reform; therefore, it was all the more
shocking and ironic that he would be killed
by a prisoner recently released from solitary
confinement. This month’s cover story delves
behind the headlines of Clements’ death into
the background of his killer, Evan Ebel, and
the repercussions that followed.
This issue of PLN also includes a poem
by renowned poet Maya Angelou, who
passed away on May 28, 2014. In addition to
being a poet she was at various times homeless, a lounge singer, a pimp, a prostitute, a
victim of child rape – all of which influenced her work – and had demonstrated
by the time of her death that she was much
more, by serving as a powerful voice for the
voiceless. Several of her poems are especially
meaningful for people behind bars, such as
“Prisoner” and “Caged Bird.” The world will
be a more somber place without her poetry
but is more illuminated because of it.
Each year we spend a great deal of money
sending sample copies of PLN to potential
subscribers in the hope they will subscribe.
From now until the end of the year we are
running our Subscription Madness campaign,
whereby people can purchase multiple oneyear subscriptions to PLN for individuals who
have not subscribed before, at reduced rates.

Our hope is that after receiving PLN for a
year, people will want to renew at our regular
rates. The Subscription Madness rates do not
apply to current or former subscribers – only
those who have never subscribed previously.
The goal is to introduce new people to PLN.
This is a great time to purchase subscriptions
for your favorite judges, legislators, corrections
officials, prisoners, family members or anyone
else who you think needs to learn more about
the realities of mass incarceration and its impact on our nation. See the ad on p. 51.
Our fight against prison and jail censorship continues. As this issue goes to press
we are awaiting a decision in our challenge
to system-wide censorship of PLN by the
Florida DOC that has been ongoing since
2009. We are currently litigating the censorship of PLN books by the Nevada DOC and
are challenging postcard-only policies and
book and magazine bans by jails in Florida,
Georgia, California, Washington, Tennessee,
Michigan, Arizona and Virginia. Within the
past month we have successfully concluded
lawsuits against jails in Wisconsin and Texas.
If you are a PLN subscriber or purchase
books from PLN, please let us know if you
experience censorship of any PLN reading
materials. We are dedicated to ensuring that
prisoners anywhere in the U.S. can receive
PLN and the books we distribute. All too
often, prison and jail officials fail to notify
us of censorship decisions; thus, we rely on
our readers to keep us informed so we can
take appropriate action.
Enjoy this issue of PLN, and please
encourage others to subscribe and to participate in Subscription Madness!

Earn an Adams State University Degree via Correspondence Courses

Now Available: Bachelors Degree
in English/Liberal Arts

July 2014

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Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 16 of 142

In Remembrance of Maya Angelou
(April 4, 1928 – May 28, 2014)

Caged Bird
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“Caged Bird” from SHAKER, WHY DON’T YOU SING? by Maya Angelou, copyright © 1983
by Maya Angelou. Used by permission of Random House, an imprint and division of Random
House LLC. All rights reserved. Any third party use of this material, outside of this publication,
is prohibited. Interested parties must apply directly to Random House LLC for permission.

Prison Legal News

11

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 17 of 142

Bonnie Kerness: Pioneer in the Struggle
Against Solitary Confinement
by Lance Tapley

I

n 1986, Ojore Lutalo, a black revolutionary in Trenton State Prison – now
the New Jersey State Prison – wrote to
Bonnie Kerness’ American Friends Service
Committee (AFSC) office in Newark. His
letter described the extreme isolation and
other brutalities in the prison’s Management Control Unit (MCU), which he called
a “prison within a prison.”
“I could not believe what he was telling me” about the MCU, Kerness says. She
reacted by becoming “this lunatic white
lady” calling New Jersey corrections officials
about Lutalo.
She immediately went to work trying
to stop MCU guards from harassing prisoners by waking them at 1 a.m. to make
them strip in front of snarling dogs leaping
for their genitals – to arbitrarily have them
switch cells. She got this practice stopped.
Lutalo’s letter also began to open her
eyes to the torture of solitary confinement,
which in the mid-1980s was just starting
to spread across the country as a mass
penological practice. Coordinator of the
AFSC’s national Prison Watch Project,
Kerness had worked on prison issues since
the mid-1970s. Now she became an antisolitary confinement activist. She has been
one longer and more consistently than,
possibly, anyone else.
“I try not to use the word ‘pioneer’

lightly,” says David Fathi, director of the
American Civil Liberties Union’s National
Prison Project, “but it certainly applies to
Bonnie. She did the groundwork for the
progress and success we are now having.”
Corey Weinstein, a California physician who also was a pioneering activist
against solitary confinement, says Kerness
made a huge contribution early on by bringing a human rights vision to the effort. It
provided “the intellectual framework that
we could grasp onto” to understand what
was happening.
Reflecting on how difficult it has been
for solitary confinement to be publicly
recognized as torture, Stuart Grassian, a
Massachusetts psychiatrist – another
trailblazer who is credited with identifying
long-term isolation as the cause of a devastating psychiatric syndrome – observes:
“How frightening it is to see people choose
not to see what’s in front of them.”
Many years ago Bonnie Kerness chose
to see what was in front of her.

A Child Shocked by Injustice
Kerness is very slim, looks much
younger than 69, and dresses stylishly –
though her wardrobe is purchased at thrift
shops, she says. She makes sweeping gestures when she speaks in her East Coast
urban twang.

Born in Manhattan, she grew up in
the Bronx and Queens. Her working-class
family was not political, but at 12 years old
she was shocked to see on the television
news “kids my own age” being beaten for
trying to integrate schools in the South.
This glimpse of injustice would lead to her
life’s work.
When she was 14, in 1956, she began
doing volunteer social work in the Lower
East Side, where for the first time she met
community organizers. Five years later she
became one herself, traveling the South for
the civil rights movement, working with the
NAACP and other groups.
She portrays herself then as “a young
white kid who went south with very little
political understanding.” But in addition
to on-the-job training, she received what
might be called an elite community-organizing graduate-school education: a year in
the mid-1960s at Tennessee’s Highlander
Research and Education Center, formerly
the Highlander Folk School, a legendary social justice leadership school which
Rosa Parks and Martin Luther King had
attended.
“I have a special feeling for my generation,” Kerness says – the activist sixties’
generation. “We each had something outside of ourselves” to be devoted to.
In the early 1970s she went up from

(Void in New York)

Somers, CT.)

July 2014

12

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 18 of 142

the South to New Jersey and got work with
the AFSC in a housing campaign. She and
others noticed that many poor people had
a father or other family member in prison.
This perception led to the founding of a
New Jersey prisoner-rights effort that ultimately morphed into the Prison Watch
Project.
In her teenage years in Queens, she had
completed two years of college. She began
taking courses again, eventually getting a
master’s in social work from Rutgers. She
also became active in the women’s, gay
rights and anti-Vietnam War movements.
And she married and divorced. She has
three biological children, an adopted child
and “one of my lovers had three AfricanAmerican children” she helped raise. Now
she attends to seven young people she all
calls her grandchildren – one of whom
interrupts an interview in the tidy AFSC
office in gritty downtown Newark with a
call to grandma to ask if she will pay for a
pizza with her credit card.
Kerness’ life outside her work – halftime, theoretically, now that she’s officially
retired – revolves around her grandchildren.

The Discovery of Solitary
Confinement
After Lutalo’s letter revealed the
horrors of the Trenton MCU, to better
understand the control-unit phenomenon
Kerness got in touch with the Committee
to End the Marion Lockdown. In 1983
the United States Penitentiary in Marion,
Illinois became the first prison in modern
times to adopt near-total confinement of
all prisoners to their cells – thus, the first
supermax.
Kerness credits Nancy Kurshan, a
prominent sixties’ and seventies’ radical
and founder of the Marion anti-lockdown
group, with helping guide her initial work,
as did several former Marion prisoners.
Kerness soon founded the AFSC’s Control
Unit Monitoring Project, focusing first on
the 80 to 90 African-American politicized
prisoners in the Trenton unit.
As she began getting letters from prisoners in other states who told stories similar
to Lutalo’s, she contacted organizations
around the country that were beginning
to be alarmed by the rise of these draconian units. This new kind of imprisonment

seemed so bizarre, “People weren’t sure what
they were looking at,” Kerness says.
And while she worked to build opposition to solitary confinement, she saw
it rapidly become common. Only a handful
of sizeable control units existed in the mid1980s, but fewer than 15 years later more
than 40 states had them. Many were large,
free-standing supermax prisons.
Kerness also watched in dismay as
control units and supermaxes became
dumpsters into which society threw the
mentally ill. The arbitrariness of the supermax regimen became clear. “You’re there
because we want you there,” she says of
the ultimate criterion for who is put into
isolation.
As citizen campaigns specifically
against control units began popping up
spontaneously, Kerness made connections
with them and helped them – in California,
Wisconsin, Illinois, Massachusetts. In 1994,
she helped bring 40 activists from around
the country to the AFSC offices in Philadelphia to found the National Campaign
to Stop Control Unit Prisons, which held
public meetings on solitary confinement in
several states.

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Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 19 of 142
Bonnie Kerness (cont.)
Solitary: First Among Other Issues
Kerness has been involved with
many other prison issues, including sexual
abuse, restraint chairs and beds, the overuse
of stun guns and pepper spray, and prison
privatization.
Her work has been particularly devoted
to solitary confinement, she says, because
“we’re so well known on this issue.” Her
daily duties include answering mail and
telephone calls, sending out reams of
requested material, contacting the news
media, mentoring student interns, giving
talks to college and community groups, and
writing articles and reports.
Her AFSC reports include, as editor or
author: “The Prison Inside the Prison: Control Units, Supermax Prisons, and Devices
of Torture” (with Rachael Kamel, 2003);
“Survivors Manual: Surviving in Solitary”
(4th Printing, 2008); and “Torture in United
States Prisons: Evidence of Human Rights
Violations” (Second Edition, 2011).
Although she praises several Quaker
activists who encouraged her, she expresses
frustration with the AFSC for starting national anti-solitary confinement campaigns
only to shut them down.
After four years the AFSC unaccountably
“pulled the plug,” she says, on the National
Campaign to Stop Control Unit Prisons.
Similarly, after a well-attended “StopMAX”
conference in Philadelphia in 2008, the sub-

stantial national effort that was supposed to
grow out of it never materialized.
An official at the AFSC’s national
headquarters in Philadelphia, Clinton
Pettus, says the organization, “like most
nonprofits, went through a period of financial constraint a few years ago,” and was
forced “to do more with less” in its solitary
confinement work. The result: “We partner
with like-minded groups and individuals
to form state-based coalitions that build
grassroots campaigns.”
Kerness also generally faults the national organizations involved with prison
reform for not making better connections
between the American domestic prison
system and the American foreign war machine. The organizations don’t recognize,
she says, that there’s a worldwide class and
racist oppression coming from the top of
the economic pyramid.
“The people who run the country own
the means of production,” she says, and
this rich elite is ultimately responsible for
the “war against the people here” – which
she sees as a campaign of social control –
and American wars against the people of
other countries. Both here and abroad, the
primary targets are black and brown people.
[Ed. note: Plus poor people in general].

A Partner in Activism
Kerness began helping Ojore Lutalo
in 1986, but he has been, during the many
years he spent on the inside, and since 2009,
when he was released from prison, a professional partner in conveying to the world the

horrors of solitary confinement.
He has vast knowledge of the subject.
He spent 22 of his 28 years behind bars in
isolation in the Trenton MCU. Now 66 –
strong-looking, with a shaved head – he
volunteers twice a week in the AFSC Newark office at a desk across a small room from
Kerness. And he speaks beside her when she
goes to colleges and community groups.
Lutalo got in touch with Kerness to
protest what he says were the prison’s “corrupt” practices, including inadequate food
and medical care and arbitrary denials of
visitors. But the corruption also was more
fundamental. Lutalo spent so many years in
solitary, he says in an interview, not because
he broke prison rules but for “entertaining
political thoughts the administration didn’t
approve of.”
He presents proof, showing a 2008
letter from prison officials stating he was
being kept in the MCU because his “radical
views and ability to influence others poses
a threat to the orderly operation of this Institution.” Serving time for armed robbery
and assault with intent to kill, he had been
a member of the Black Liberation Army, an
underground, revolutionary offshoot of the
Black Panthers.
Kerness has written of Lutalo: “During
the quarter century that we monitored Ojore
Lutalo in isolation, he was never assaulted
either physically or chemically. The ‘no-touch’
torture he endured consisted of sleep deprivation, screeching sounds, extreme silence,
extreme cold and heat, intentional situational
placement, humiliation – a systematic attack

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Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 20 of 142

on all human stimuli.”
“The goal was to break me psychologically,” Lutalo says.
He didn’t break. But maintaining sanity
during decades of solitary confinement is
exceedingly difficult, he says. He saw many
prisoners “wiped out” by the isolation. He
says his political commitment kept him
sane. His creation of political art – collages
that combine drawings and newspaper clippings – was especially helpful.
With Kerness’ assistance, Lutalo’s
plight and the conditions at the MCU
became known. Reporters interviewed
him; documentary films appeared; a classaction lawsuit was filed on behalf of the
unit’s African-American prisoners. In
1995 the lawsuit was settled, and the court
appointed a special master to review each
prisoner’s case.
Eventually, after years, most prisoners were released into the prison’s general
population. Lutalo spent several years in
general population, but was put back into
the MCU because, Kerness says an official told her, of a request by the federal
Department of Homeland Security. He
was released from isolation only when his
prison term ended.

A Harsh State
Although Kerness’ work has often
been on the national stage, the Trenton
MCU has continued to be a major concern.
The state’s prison system has “always been
one of the toughest” on prisoners, she says,
and the MCU is still being used “uncon-

scionably” for mentally ill prisoners. But,
she adds, it’s difficult to know what’s going
on in it and anywhere else in “an extremely
closed” New Jersey system.
As if to prove that point, when the New
Jersey Department of Corrections is asked
about the number of prisoners held in solitary confinement, a spokesman replies by
email: “New Jersey does not utilize solitary
confinement in any of its prisons.”
This is a common response f rom
corrections departments, since “solitary
confinement” is not a bureaucratic phrase.
Further inquiry produces an admission
that “administrative segregation (ad seg)
... is utilized as a punishment for inmates
and entails the loss or reduction of certain
privileges.”The spokesman, Matthew Schuman, adds that “the vast majority of inmates
in ad seg are double-bunked. Even those in
single cells have opportunities to interact
with other inmates, so ad seg is distinctly
different from solitary confinement.”
Kerness, however, counts over 329 ad
seg beds at the Trenton prison that “we’re
pretty sure are isolation cells.” In addition,
she’s “positive” there are 96 solitary confinement cells in the MCU. Ad seg beds in four
other prisons total 994, she says. These may
or may not be doubled-bunked, but they’re
“locked down.” Then there are special needs
and protective custody housing units about
which, she says, little is known.
Jean Ross, a volunteer prisoners’ rights
attorney based in Princeton, agrees with
Kerness that New Jersey’s prison system is
unhelpful in providing information, isolates

many prisoners and is a harsh system.
Ross has specifically challenged, in a
class-action lawsuit on behalf of prisoners,
the conditions in the “falling apart” West
Compound of the 178-year-old Trenton
facility. Ross says it has poor ventilation,
excessive heat and cold, leaking pipes, rodent and insect infestations, and fire-safety
deficiencies, among other problems.
Kerness also was involved in bringing
to light the particularly vicious conditions
that alleged gang members suffered in a
“high risk” Security Threat Group Management Unit of Newark’s huge Northern
State Prison. Reports of the “use of physical,
chemical, and psychological abuse” came
to her “during the entire 12 years” the gang
unit remained open, she writes in “Torture
in United States Prisons.”
The unit was shut down in 2010 after
prisoner Omar Broadway, a Bloods gang
member, used a camera smuggled in by a
guard to secretly film abusive treatment of
prisoners. His video, with scenes of guards
pepper-spraying and beating prisoners,
was shown at the 2008 Tribeca Film Festival and, in 2010, on HBO. Kerness says
many of the Northern State prisoners were
transferred to ad seg units in other New
Jersey prisons.

The Future of Anti-solitary Work
Kerness welcomes the embrace in
recent years of the anti-solitary cause by
mainstream groups such as the National
Religious Campaign Against Torture –
“they’re doing dynamite.” She believes

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July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 21 of 142
Bonnie Kerness (cont.)
describing solitary confinement as torture is
the angle to accentuate. She has written that
American legitimization of torture presents
the country with “a spiritual crisis.”
She sees welcome developments, too, in
law schools, especially with their students.
She hopes “we will begin to see lawyers
with a more progressive” bent. At present,
progressive lawyers are “still a very small
group.”
But most important to the anti-solitary
battle, she says, are “the people inside,” such
as Lutalo, who stimulated her activism.
As for her future, “I wouldn’t know how
else to live,” Kerness says, other than a life

of activism, despite the slowness of change.
Years ago, “I almost did give it up because I
was alone.” That was “right at the moment
I met Ojore.”
Hers has been a difficult crusade, too,
because it’s “always been a struggle financially.” To be an activist for social change
“costs money personally” – those collect
calls received at home from prisoners, for
example.
In a telephone interview, Ross, who has
worked with Kerness on prison issues for 10
years, sums her up: “She’s very smart. She’s
very articulate. She writes very well because
she thinks very well. She has a passion for
justice. She’s not afraid to confront the most
difficult problems.”
Later, by email, Ross adds: “Because

she has persisted in this difficult and stressful work for so long, she brings the wisdom
of memory.”
Kerness says she’s not discouraged, but
she’s no Pollyanna about ending widespread
solitary confinement. During her decades of
work on prison issues she saw the American
prison system become ever more repressive.
“I can only hope,” she says of the future.
Whatever the future, “I will spend as
much time as I can” working on these issues.
“If there’s activism in you, you do it until
you drop.”

Lance Tapley is a Maine-based freelance writer. This article was first published by Solitary
Watch (www.solitarywatch.com) in November
2012; it is reprinted with permission.

Preliminary Injunction Entered in PLN Censorship
Suit Against Ventura County, California

O

n May 29, 2014, in a significant
victory for the First Amendment
rights of prisoners and those who correspond with them, the U.S. District Court
for the Central District of California granted a preliminary injunction barring Ventura
County’s jail system from enforcing a “postcard only” policy that prohibits prisoners
from receiving mail in envelopes.
“We are very pleased the judge is upholding the constitution,” said Prison Legal
News editor Paul Wright.
The preliminary injunction was the
latest in a series of successful legal actions
filed by PLN challenging unduly restrictive
mail policies implemented in jails nationwide, which courts have repeatedly found
are not justified by a rational penological
purpose. [See: PLN, Jan. 2014, p.42; Nov.

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2013, p.24; Sept. 2013, p.40].
After considering the parties’ arguments, the federal district court found that
Ventura County’s “restrictive mail policies
violate [PLN’s] First Amendment right to
communicate with inmates,” and that the jail
system’s “practice of rejecting mail without
providing notice and an opportunity to appeal” violates the Fourteenth Amendment.
The court ordered the defendants to
“suspend enforcement of the postcard-only
policy for incoming mail within 21 days” and
“give senders of rejected mail written notice
and an opportunity to appeal the rejection
decision.” Further, the jail “shall not reject mail
for containing ‘suggestive’ content, Xeroxed
material, or subscription order forms.”
The district court noted that “[p]ublishers have a First Amendment right to
communicate with prisoners by mail,” citing
Prison Legal News v. Lehman, 397 F.3d 692
(9th Cir. 2000).
In analyzing PLN’s motion for a preliminary injunction, the court applied the
test set forth in Turner v. Safley, 482 U.S. 78
(1987), examining four factors to determine
whether a regulation is “reasonably related
to legitimate penological interests.”
Although Ventura County cited security concerns to justify its postcard-only
policy, the district court wrote that “our
deference to the administrative expertise
and discretionary authority of correctional
officials must be schooled, not absolute.”
The court noted the county jail system

16

had allowed prisoners to receive mail in
envelopes until 2011, and had presented
no evidence indicating it could not do so
again because, as with letters, it still had to
inspect postcards for contraband. Further,
most other federal, state and county correctional facilities allow prisoners to receive
mail in envelopes without compromising
institutional security.
The district court held the county
had not met its burden to show a ra­
tional basis for its postcard-only policy
in light of the policy’s obvious impact on
PLN’s First Amendment rights, citing
Prison Legal News v. Columbia County,
942 F.Supp.2d 1068 (D. Or. 2013) [PLN,
June 2013, p.42].
In granting the preliminary injunction, the court determined, based upon the
evidence presented, that PLN was likely to
prevail on the merits in the case – a clear
victory for the First Amendment rights of
not only prisoners and publications such as
PLN, but also for the free-flow of information and correspondence between people
who are incarcerated and their friends, family members and others on the outside.
PLN is represented by the San Francisco
law firm of Rosen Bien Galvan & Grunfeld,
LLP and attorney Brian Vogel. The case
remains pending. See: Prison Legal News v.
County of Ventura, U.S.D.C. (C.D. Cal.), Case
No. 2:14-cv-00773-GHK-E.
Additional source: Ventura County Star
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 22 of 142

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July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 23 of 142

Oregon Parole Board: “Don’t Have to
Explain Nothing to Nobody”

F

or at least the fifth time, a state
court has ordered the Oregon Board of
Parole and Post-Prison Supervision (Board)
to provide more than boilerplate reasons for
its decisions. There is little reason to believe,
however, that the Board has any intention
of complying.
Oregon law requires the Board to “state
in writing the detailed bases of its decisions.” The Board is exempt, however, from
a statutory requirement to make findings of
fact and conclusions of law.
The Oregon Court of Appeals reversed
a Board decision in 1997, holding that
despite the statutory exemption, the Board
was required to “make findings of fact and
provide an explanation as to why its findings
lead to the conclusions that it reaches.” See:
Martin v. Board of Parole, 147 Ore. App.
37, 934 P.2d 626 (Or. Ct. App. 1997). The
Oregon Supreme Court affirmed, holding
that the Board must provide “some kind of
an explanation connecting the facts of the
case (which would include the facts found,
if any) and the result reached.” See: Martin
v. Board of Parole, 327 Ore. 147, 957 P.2d
1210 (Or. 1998). This is commonly referred
to as “the substantial-reason requirement.”
In 1999, the Board asked the Oregon
legislature to overrule Martin. The proposed
law change expressly relieved the Board of a
duty to “explain how [its] order is supported
by the facts and the evidence in the record.”
The Oregon judiciary, however, did not

appreciate such overt disrespect for its authority. James Nass, appellate legal counsel
for the Oregon Supreme Court and Court
of Appeals, opposed the Board’s proposed
legislation, SB 401.
As the bill advanced through the
legislature, the judiciary’s opposition grew
“more vociferous.” Nass called the bill “bad
public policy” and warned it “will decrease
the quality of judicial review” and “increase
the work load of the appellate courts.”
He pulled no punches. “There is nothing subtle about this bill,” he said. “The bill
starkly presents this policy issue: Should
any governmental agency be exempt from
explaining how its decisions are supported
by the evidence in the record? Apparently
these Boards would say yes. Under SB 401,
their motto would be: ‘We’re the Board. We
don’t have to explain nothing to nobody.’”
Nass continued: “According to these
Boards, they shouldn’t have to explain their
decisions to inmates whose fates lie in their
hands. No problem there, of course, because
few people have sympathy for criminals. But,
this bill also means that the Boards would
not have to explain their decisions to victims
or victims’ families. They would not have to
explain their decisions to the media. They
wouldn’t have to explain their decisions to
any legislator who might be interested in a
particular case. And, they wouldn’t have to
explain their decisions to the courts to aid in
judicial review of those decisions.”

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In the end, a compromise was struck between Oregon’s Attorney General, the Chief
Justice of the Oregon Supreme Court and
the judge who authored the Martin decision.
The proposed bill was gutted and replaced
with a single sentence that was added to
ORS 144.335(3): “The order of the board
need not be in any special form, and the order
is sufficient for purposes of judicial review
if it appears that the board acted within the
scope of the board’s authority.”
Apparently believing the legislation
allowed it to conduct business as usual, the
Board continued to offer only boilerplate
reasons for its parole decisions.
On December 28, 2007, the Oregon
Supreme Court again reminded the Board
of its responsibility under Martin – i.e., to
set forth in its orders the reasoning that
leads from the facts it has found to the
conclusions it draws from those facts. See:
Gordon v. Board of Parole, 343 Ore. 618, 175
P.3d 461 (Or. 2007).
Just fourteen days later, a trial court
granted a victim’s request to vacate a decision by the Board to release the man
imprisoned for raping her. Relying in part
on Gordon, the court held that the Board’s
“bare conclusions are simply not enough...
the Board’s findings, reasoning, and conclusions must demonstrate that it acted in a
rational, fair, and principled manner, and
not on an arbitrary or ad hoc basis.”
Steven R. Powers, then Board Chair-

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July 2014

18

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 24 of 142

man and now Deputy General Counsel
to Oregon Governor John Kitzhaber,
defended the Board’s standard language in
its decisions, claiming that detailed findings
could give prisoners more ammunition for
appeals.
Bronson James, the public defender
who represented the prisoner whose release
was vacated following a legal challenge by
the rape victim, said that offenders and their
attorneys shared the objections voiced by
the victim and her lawyer.
“We have been complaining for decades with nobody taking us seriously,”
James said in August 2008.
He argued then that the Board should
“issue detailed rulings that explain why it
denied parole rather than the typical twosentence decision that includes nothing but
boilerplate reasoning.”
The Board’s response, however, indicated that it still took the position that it didn’t
“have to explain nothing to nobody.”
On November 18, 2009, the Oregon
Court of Appeals again reversed a parole
decision, finding the Board had violated the
substantial-reason requirement. Citing the
same boilerplate language that was found in

every Board order, the appellate court said,
“the board has provided only a conclusion:
‘Based on the doctor’s report and diagnosis,
coupled with all the information that the
board is considering,’ it is reasonably probable that petitioner would violate his parole
or a law.... That is an announcement, not an
explanation. It gives us nothing to judicially
review. Our duty is to evaluate the board’s
logic, not to supply it.” See: Castro v. Board
of Parole, 232 Ore. App. 75, 220 P.3d 772
(Or. Ct. App. 2009).
Of course, nothing changed – the
Board did not make even the slightest
variation in its standard language.
On September 5, 2013, the Court of
Appeals once again held that the Board is
required “to provide an inmate with some
explanation of the rationale for concluding
that” release on parole should be postponed.
Rejecting the Board’s argument that
the 1999 “Martin amendment” exempts it
from the substantial-reason requirement,
the appellate court concluded that the
Board’s “reading of the statute runs counter
to its text, context, and legislative history.”
Following Martin, Gordon and Castro,
the Court of Appeals wrote “that the board

used the same boilerplate wording rejected
in Castro,” and held “it is apparent that the
board’s order references the contents of
the entire record, as opposed to particular
parts of the record that were pivotal.” As
such, “the order ... offers a mere conclusion
and does not permit us ‘to determine if the
board’s findings, reasoning, and conclusions
demonstrate that it acted in a rational, fair,
and principled manner in deciding to defer
petitioner’s parole release.’” One appellate
judge dissented from the majority opinion.
See: Jenkins v. Board of Parole, 258 Ore. App.
430, 309 P.3d 1115 (Or. Ct. App. 2013).
Given that the Board has repeatedly
ignored two state Supreme Court decisions,
a previous Court of Appeals decision and a
trial court order on this very issue, there is
little reason to believe that yet another judicial ruling is going to alter its behavior.
Apparently the rule of law and the
authority of the courts mean little when
you’re the Board and believe you “don’t have
to explain nothing to nobody.”
However, the Oregon Supreme Court,
which granted review in Jenkins on January
30, 2014, may have the final word regarding
the Board’s reasoning for its decisions.

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19

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 25 of 142

Prisoners Unlikely to Benefit from New,
Highly Effective Hepatitis C Treatment
by Greg Dober

H

epatitis C (HCV) is a blood-borne
virus that is typically spread through
intravenous drug use (i.e., sharing needles),
tattooing with non-sterile needles, and
sharing razors, toothbrushes, nail clippers
or other hygiene items that may be exposed
to blood. It is often a chronic disease and,
if left untreated, can lead to severe liver
damage.
Recent good news in the battle against
HCV, in the form of two new drugs that
are highly effective in eliminating the virus,
is tempered by the fact that the companies
that produce the drugs have priced them at
$60,000 to $80,000 per 12-week course of
treatment. This high cost prices the medications beyond the reach of most prison and
jail systems – which is especially troubling
considering that a substantial number of
prisoners are infected with HCV.
The new drugs, approved by the FDA
in late 2013, are simeprevir, branded as

Olysio and manufactured by Janssen
Therapeutics (a Johnson & Johnson company), and sofosbuvir, branded as Sovaldi
and manufactured by Gilead Sciences.
Based on clinical trials, Sovaldi has an
84-96% cure rate while Olysio has an
80-85% cure rate. Both drugs are used in
combination with other HCV anti-viral
medications, peginterferon alfa and/or
ribavirin, and their cure rates vary depending on HCV genotype – specific variations
of the virus.
Unlike the current treatments for
hepatitis C, Olysio and Sovaldi have fewer
side effects, greater efficacy and reduce
treatment durations by up to 75% (12 to 24
weeks rather than 48 weeks). In addition,
the new drugs are administered orally rather
than by injections. However, given tight
corrections budgets and the high cost of the
new HCV medications – Sovaldi costs approximately $1,000 per pill – getting them

into prisons and jails ranges from difficult
to impossible.
According to the Centers for Disease
Control, “The prevalence of HCV infection
in prison inmates is substantially higher
than that of the general U.S. population.
Among prison inmates, 16%-41% have
ever been infected with HCV, and 12%35% are chronically infected, compared to
1%-1.5% in the uninstitutionalized U.S.
population.”
Josiah Rich, director of the Center
for Prisoner Health and Human Rights at
the Miriam Hospital Immunology Center
in Rhode Island, noted that “With more
than 10 million Americans cycling in and
out of prisons and jails each year, including
nearly one of every three HCV-infected
people, the criminal justice system may be
the best place to efficiently identify and
cure the greatest number of HCV-infected
people.”

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July 2014

20

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Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 26 of 142

Despite the need for improved drugs to
treat prisoners with hepatitis C, the cost of
the new medications is prohibitive for prisons and jails. Rich estimated that treating
all prisoners currently infected with HCV
would cost $33 billion.
“I agree with the premise that prisons
are an important point to address this
problem,” said Dr. Joe Goldenson, director
of health services for San Francisco’s jail
system. “But this has to be addressed from
an overall strategy of public health and the
funding has to come out of that system.
Corrections is not a place that can handle
these costs.”
Since 2011, spending on HCV treatment in correctional settings has climbed
rapidly. The increase has been attributed
to the introduction of two HCV drugs
produced by pharmaceutical companies
Merck and Vertex. However, with the
recent introduction of the new and more
effective treatments, costs are expected to
rise again.
The federal Bureau of Prisons (BOP),
which houses approximately 216,800 prisoners, may have an easier time affording
the drugs. Through a U.S. Department of

Veterans Affairs program, the BOP will receive a 44% discount on Olysio and Sovaldi.
In February 2014, the federal prison system
began making the new HCV medications
available to some prisoners.
According to a May 2014 BOP clinical
practice guidelines report, titled “Interim
Guidance for the Management of Chronic
Hepatitis C Infection,” the use of sofosbuvir and simeprevir in combination with
peginterferon and/or ribavirin is the “preferred treatment regimen.” State prisoners,
however, may not be as fortunate.
In Washington State, prison officials
have established a committee of healthcare providers that meets twice a month to
review HCV cases for treatment eligibility
with the new drugs. In April 2014, Kevin
Bovenkamp, the Washington DOC’s assistant secretary for health services, said that of
ten cases reviewed by the committee, none
were approved for treatment.
Dr. Lara Strick, an infectious disease
specialist for the Washington DOC, told a
reporter from The News Tribune that HCV
is a progressive disease and not all prisoners
need immediate treatment. She also noted
that it might be better for certain patients

to wait until newer treatments, with even
fewer side effects, are available.
However, it is likely that future
HCV treatments that are more effective
and have fewer side effects than Olysio
and Sovaldi will demand an even higher
price, and patients who are currently denied treatment due to fiscal constraints
will eventually face the same cost-based
roadblocks in the future. On the other
hand, additional HCV drugs may lead to
greater competition and thus lower prices.
Merck, for example, is currently developing a two-drug hepatitis C regimen that
reportedly has a 98% cure rate.
Dr. Strick acknowledged that future
pricing of new HCV treatments may
dictate whether the epidemic of hepatitis
C among prisoners can be eradicated as a
public health issue.
Since 2010, before Olysio and Sovaldi
were available, the cost of HCV treatment
for the Washington DOC had more than
doubled by 2013 – rising from approximately $834,000 per year to $1.8 million
annually. The DOC is trying to determine
if a discount from the manufacturers of the
new HCV drugs can be negotiated. Gilead

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July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 27 of 142
HCV Treatment (cont.)
has defended its pricing for Sovaldi, citing
the drug’s potential to prevent longer-term
costs resulting from HCV such as liver
transplants and treatment for cirrhosis or
cancer.
In Illinois, prison officials estimate
there are approximately 100 to 150 prisoners afflicted with HCV in each of the state’s
prisons. They acknowledge that not every
HCV-positive prisoner will receive the new
drugs; consideration will be given to severity
of medical condition, length of sentence and
overall health of each prisoner. Still, state
corrections officials indicated that even if
one-third of the prisoners with HCV receive the new medications, treatment costs
would increase to $61 million annually from
the current $8 million.
Other states like New York and
Wisconsin are dispensing the new HCV
drugs on a limited case-by-case basis. A
spokesperson for the New York DOC
told the Wall Street Journal that nearly 60
prisoners with the most serious cases of
HCV had begun treatment with the new
drugs. Oregon is reportedly providing
the new medications to HCV-positive
prisoners with a life expectancy of under
one year.
Although prison officials must provide adequate healthcare to prisoners with
serious medical needs, as required by the
Eighth Amendment pursuant to Estelle
v. Gamble, 429 U.S. 97 (1976), failing to
supply the new HCV drugs might not be
considered deliberate indifference. Many of
the court decisions regarding prison healthcare have required corrections officials to
provide adequate treatment that meets

minimal constitutional standards – which
is not necessarily the best care available.
If the new drugs become the community
standard of care for hepatitis C, though, the
argument can be made that that standard
should equally apply to prisoners.
Critics of making the new HCV
medications available to prisoners argue
the drugs may not be covered under health
insurance plans for people who are not
incarcerated; thus, prisoners would receive
better treatment than those in the general
population. Yet this ignores the reality that
the less costly and older treatments for
HCV currently available to prisoners are
routinely denied. [See: PLN, July 2013,
p.16; March 2013, p.36].
Prison medical officials can deny HCV
treatment for a variety of reasons, including the length of a prisoner’s sentence, if
they have recently used or been found in
possession of illegal drugs or alcohol, or
have recently received tattoos. Thus, even
should Olysio and Sovaldi become available
in prison systems, it is unlikely that many
prisoners will actually receive the costly
medications.
Gilead has been criticized for pricing Sovaldi based on a scale relative to a
country’s per-capita income. For example,
the drug is offered in Egypt at a 99%
discount to the U.S. list price, resulting in treatment costs of approximately
$900. Therefore, a U.S. nongovernmental
organization based in Egypt could more
readily afford to treat Egyptian prisoners
using Sovaldi than state prison officials
could treat prisoners in the U.S. The
company fails to take into account that
many of the people infected with HCV
in the United States live below the federal poverty level or are incarcerated, on

Gregory Dober has been a contributing writer
for PLN since 2007.
Sources: KOVR-TV, http://sacramento.cbslocal.com, www.cbsnews.com, www.pewstates.
org, Public Health Reports (March-April
2014), www.kuow.org, Quad-City Times,
Wall Street Journal, The News Tribune, www.
cdc.gov, Forbes, Reuters, www.olysio.com,
www.sovaldi.com, BOP Clinical Practice
Guidelines (May 2014)

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Medicaid or otherwise under the average
per-capita income in the U.S.
Janssen Therapeutics spokesman Craig
Stoltz said the company continues to “work
with public and private payers and health
systems” to make simeprevir available to
“marginalized and underserved populations,” including prisoners.
Eventually, the question of public
health ethics must be asked and answered.
By not providing the most effective treatment to HCV-positive prisoners, are we
endangering the health of the general
public? According to a study published in
the March-April 2014 issue of Public Health
Reports, prisoners represent 28.5-32.8% of
the total HCV cases in the United States,
based on 2006 data. Prisoners who are
untreated, or not effectively treated, are
more likely to infect others after they are
released.
For Gilead Sciences and Janssen
Therapeutics, however, that may be welcome
news, because they can then sell their highpriced HCV drugs to even more patients.
Until affordable HCV medications are
made available to everyone who needs
them – including prisoners – the hepatitis
C epidemic might be slowed but will not
be stopped.

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22

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 28 of 142

Eighth Circuit: No Qualified Immunity for Detainee’s Overdose Death
by Mark Wilson

T

he Eighth Circuit Court of Appeals
held on September 20, 2013 that an Arkansas jail guard was not entitled to qualified
immunity for his deliberate indifference to a
detainee’s serious medical condition which
resulted in the detainee’s death.
On December 18, 2008, Saline County
deputy sheriff Stephen Furr arrested Johnny
Dale Thompson, Jr. During the arrest,
Deputy Furr discovered an empty Xanax
bottle that indicated it had been filled with
60 pills two days earlier. Thompson, who
was slurring his words, admitted to taking
medication and slept in the patrol car, but
was easily awakened at the jail.
Jail guard Ulenzen C. King conducted
Thompson’s booking process. King noted
that Thompson appeared intoxicated; he
asked to sit down but nearly fell out of the
chair. He was unable to sign his name and
“couldn’t even answer questions that Officer
King was asking him.” King wrote “Too
Intox to Sign” on the booking sheet.
Sometime after Thompson was placed

Prison Legal News

in a cell at 7:42 p.m., another detainee
alerted King that Thompson needed help,
but King did nothing.
At 9:09 p.m., King and another jailer
entered Thompson’s cell and discovered he
was “cool to the touch, not breathing, and
non-responsive.” He was pronounced dead
at a hospital around 20 minutes later.
An autopsy revealed that Thompson had
ingested a cocktail of drugs, including hydrocodone,methadone and alprazolam.The medical
examiner classified his death as accidental.
Thompson’s mother filed suit in federal
court against Saline County and several
individual defendants. The district court
granted qualified immunity to all the defendants except Furr and King; both then
filed an interlocutory appeal.
The Eighth Circuit observed that its
review was limited to determining whether
Furr and King knew that Thompson had
a serious medical need but deliberately
disregarded that need.
The appellate court followed Grayson v.

23

Ross, 454 F.3d 802 (8th Cir. 2006) in holding
that Furr lacked subjective knowledge that
Thompson required medical attention. As
such, it concluded that Furr was not deliberately indifferent to Thompson’s medical needs
and was entitled to qualified immunity.
The Court of Appeals found, however,
that “Ross does not compel the same conclusion for Officer King.” Rather, Thompson
“presented a noticeably more intoxicated
condition during his encounter with Officer
King than the detainee in Ross.”
Given the information available to King
when Thompson was booked into the jail, the
Eighth Circuit affirmed the district court’s
denial of qualified immunity, holding that “a
reasonable jury could find that ... King had subjective knowledge of a serious medical need and
deliberately disregarded that need.”See: Thompson v. King, 730 F.3d 742 (8th Cir. 2013).
Following remand, the case went to
trial in January 2014 and the federal jury
found in favor of King, resulting in no recovery for Thompson’s estate.

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 29 of 142

Ninth Circuit: Damages Required for
Compelled Religious-Based Treatment
by Mark Wilson

T

he Ninth Circuit Court of Appeals
has held that damages are required, as a
matter of law, when a parolee is incarcerated
for objecting to compelled participation in a
religious-based drug treatment program.
Citing “uncommonly well-settled case
law,” the Court of Appeals found in 2007
that the First Amendment is violated when
the state coerces an individual to attend a
religious-based substance abuse program.
See: Inouye v. Kemna, 504 F.3d 705 (9th
Cir. 2007).
The California Department of Corrections and Rehabilitation (CDCR)
contracts with Westcare, a private entity,
to provide drug and alcohol treatment for
parolees in Northern California. Westcare,
in turn, contracts with Empire Recovery
Center, a non-profit facility. “Empire uses
a 12-step recovery program, developed
by Alcoholics Anonymous and Narcotics
Anonymous, that includes references to

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‘God’ and to ‘higher power.’”
Barry A. Hazle, Jr., an atheist, was
incarcerated due to California drug convictions. His parole conditions required
him to complete a 90-day residential drug
treatment program.
Prior to his February 26, 2007 release
from prison, Hazle had asked prison and
Westcare officials to place him in a nonreligious treatment program. Westcare
officials directed Hazle to Empire.
When Hazle realized Empire was a
religious-based program, he repeatedly objected to Westcare officials. They responded
“that the only alternative to Empire was a
treatment facility whose program had an
even greater focus on religion.”
Hazle asked parole agent Mitch Crofoot for a transfer to a secular treatment
program, and was ordered to remain at Empire while Crofoot looked into the issue.
Westcare claimed that it had no secular
programs; Crofoot then informed Hazle
that no alternative programs were available
and he needed to complete the Empire
program or his parole would be revoked
and he would return to prison.
On April 6, 2007, Empire informed
Crofoot that Hazle was being “disruptive,
though in a congenial way,” and that his
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100 days.
Hazle then sued Westcare and several
state officials, alleging they had violated
his First Amendment rights by requiring
his participation in a 12-step program as a
condition of parole, rejecting his requests
for a secular program and revoking his
parole for refusing to participate in the
12-step program. He sought compensatory
damages – for loss of liberty and emotional
distress – as well as punitive damages and
injunctive relief.
After Hazle filed suit, the CDCR
issued a directive in response to Inouye,
stating that parolees who refuse to participate in religious-based programs may not
be compelled to attend such programs and
must “be referred to an alternative non­
religious program.”
The district court entered summary
judgment against the defendant state officials, finding them liable for violating
Hazle’s First Amendment rights. The court
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24

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 30 of 142

violation of his rights.”
A trial was then held to determine
damages. The district court informed
the jury it had previously found “that
each defendant violated plaintiff ’s First
Amendment Establishment Clause right
by ... arresting and incarcerating plaintiff
because of [his] failure to participate in
the program.”
At the request of the defendants, however, the court instructed the jury to decide
if they were jointly and severally liable or
whether damages should be apportioned
among them. In the latter case, the jury was
to apportion damages.
The jury returned a damages verdict
finding the defendants were not jointly
and severally liable, and awarded Hazle no
damages against each defendant.
Hazle moved for a new trial under
FRCP 59(a), arguing that the zero damages verdict was contrary to the law and
evidence. The district court denied the
motion, holding that Hazle had waived his
objection by failing to raise it before the jury
was discharged, and that the jury’s finding
that damages could be apportioned among
the defendants was consistent with its finding that none of the defendants had caused
Hazle’s constitutional injuries.
The Ninth Circuit reversed, holding
that Hazle did not waive his objection and the
district court had improperly denied his
motion for a new trial.
“The jury’s verdict, which awarded

Hazle no compensatory damages at all for
his loss of liberty, cannot be upheld,” the
Court of Appeals concluded. “Given the
indisputable fact of actual injury resulting
from Hazle’s unconstitutional imprisonment, and the district judge’s finding that
the state defendants were liable for that
injury,” the Court held that “an award of
compensatory damages was mandatory. The
jury simply was not entitled to refuse to
award any damages for Hazle’s undisputable
– and undisputed – loss of liberty, and its
verdict to the contrary must be rejected.”
The district court had also “erred in
putting the question of apportionment
to the jury in the first place,” the Ninth
Circuit wrote. That “is a legal [issue] to
be decided by the judge, not the jury.” The
jury’s resolution of that issue was “simply
inconsistent with the district judge’s order
holding defendants liable for Hazle’s false
imprisonment.”
In addition, the appellate court reversed the district court’s grant of summary
judgment in favor of Westcare, finding “a
genuine issue of material fact as to whether
Westcare’s policy of contracting solely with
religious facilities was a proximate cause of
[Hazle’s] constitutional injuries.”The Ninth
Circuit noted that “Inouye leaves little room
for Westcare to argue that constitutional
injuries of the sort suffered by Hazle were
not a foreseeable result of its actions.”
Lastly, the Court of Appeals reversed
the dismissal of Hazle’s state law claim for

injunctive relief to enjoin the CDCR from
“carrying on any unlawful actions.” The
Court said the facts in this case established
“that, notwithstanding the state’s directive [to provide alternative nonreligious
programs], the defendants do not appear
to have taken any concrete steps to prevent
other parolees from suffering the same constitutional violations Hazle suffered.”
The case was reversed and remanded,
and remains pending on remand. See:
Hazle v. Crofoot, 727 F.3d 983 (9th Cir.
2013).

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July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 31 of 142

Louisiana Public Service Commission
Considers Prison Phone Issues

T

he A dvocate reported in March
2014 that tensions were high between
Louisiana Public Service Commission
(PSC) Chairman Eric Skrmetta and PSC
Commissioner Foster Campbell during a
hearing on issues related to prison and jail
phone rates.
Previously, in December 2012, the
PSC voted to lower the cost of phone
calls made by Louisiana prisoners by
cutting the rates of some calls by 25%
and prohibiting surcharges. The ban on
surcharges went into effect on February
28, 2013, while the rate reduction – which
only applies to calls made to family members, clergy, attorneys and certain other
parties – was postponed until 2014. [See:
PLN, April 2013, p.29; Jan. 2013, p.14;
Feb. 2012, p.36].
Two prison phone service providers,
City Tele-Coin and Securus Technologies (which also has the phone contract
for Louisiana’s state prison system), were
subsequently cited by the PSC for con-

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July 2014

tempt for charging additional fees in spite
of the prohibition on surcharges.
Commissioner Campbell had championed the prison phone reforms, including
the 25% rate reduction. City Tele-Coin
and Securus have since petitioned the
PSC to rescind the rate cut and ban on
surcharges.
Additionally, City Tele-Coin hosted a
fundraiser for PSC Chairman Skrmetta’s
election campaign, and the company’s
owner, Jerry Juneau, and his wife donated
$10,000 to Skrmetta’s campaign fund in
December 2013.
Although the contempt citations
against Securus and City Tele-Coin were
pending before administrative law judges,
Chairman Skrmetta asked the PSC to settle
the cases.
The City Tele-Coin surcharges at
issue include an “administrative cost” of
up to $10 when opening a direct-pay account; a “processing cost” on direct-pay
refunds of $5; a “transfer fee” of up to
$2.50 to move balances on direct-pay
accounts to a different phone number;
and a monthly “inactivity fee” of up to
$10 for accounts with no activity in a
six-month period.
Securus charges a “processing fee” of
$6.95 for credit card and check-by-phone
payments; a “wireless administrative fee”
of up to $2.99 a month when a user lists
a wireless number authorized to receive
prison phone calls; and a “processing fee” of
$4.95 on refunds from unused accounts.
On April 2, 2014, the PSC held a hearing to address issues related to the contempt
citations. Commissioner Campbell had
asked the PSC to hire a technical consultant
to audit the books of the two prison phone
companies, but the Commission rejected his
request. Chairman Skrmetta sought to go
into a behind-closed-doors executive session to settle the citations against Securus
and City Tele-Coin, which also was rejected
by the full Commission; consequently, the
administrative law process will continue and
the verdicts will be reviewed by the PSC. A
number of prison phone justice advocates
and community faith leaders testified at the
hearing as to how the surcharges and high
phone rates hurt prisoners’ families and the
local community.

26

Another PSC hearing, held in May
2014, was attended by Caddo Parish Sheriff
Steve Prator, who criticized the Commission’s actions to reduce prison and jail phone
rates, saying they compromised security at
his jail.
“I’m not getting in your business
about what the phone rates are. That’s not
what I’m here to tell you. I’m just going
to emphasize they’ve got to be monitored
and we’ve got to have the technology, and
it’s expensive to do. Government has to
pay for it. We have to pay for it,” Prator
said.
The rate reductions also have been
criticized by an organization called
“Crimefighters,” founded by a retired New
Orleans police officer, which took out a
full-page ad in the Shreveport Times accusing Commissioner Campbell of “fighting
for the rights of criminals” and “being soft
on crime.”
Similarly, Keith Gates, an attorney
who is challenging Campbell’s seat on the
PSC in elections this fall, accused him of
helping “jailbirds.”
On June 6, 2014, in a monthly news
column, Commissioner Campbell noted
that high prison phone rates have troubled
him for more than a decade. “This issue
involves millions of dollars collected by
monopoly telephone companies, the correctional facilities they do business with,
and the families of 40,000 people in jail in
Louisiana,” he said.
“The Public Service Commission must
assure that monopoly utility companies
don’t abuse their customers,” Campbell
added. “Inmate families have few advocates to defend them against corporations
charging outrageous phone rates and questionable fees.”
PLN will report future developments
concerning prison phone rates in Louisiana.
If City Tele-Coin and Securus are found
guilty of the contempt citations, they face
thousands of dollars in fines and the potential loss of their licenses to operate in
the state.
Sources: The Advocate, www.shreveporttimes.
com, Commissioner Foster Campbell’s monthly
news column ( June 6, 2014), www.kcbd.com,
www.fox8live.com
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 32 of 142

State of Washington
Prison Phone Justice Campaign
Prison Phone Justice Project needs your help for statewide campaign!
While much progress has been made in reducing the costs of long distance prison calls, we are
still fighting to reduce the high costs of in-state prison and jail calls at the local level. In January
2014, the Human Rights Defense Center (HRDC), the parent organization of Prison Legal News,
reopened its Seattle office to launch the Washington Prison Phone Justice Campaign.
This is our first statewide phone justice campaign, and we’re excited to have people involved
on both the local and national levels who are dedicated to ending the exorbitant phone rates and
kickbacks associated with the prison phone industry. We have already been obtaining the phone
rates and contracts from all 39 county jails in the state and the Washington DOC.
We hired a local campaign director, Carrie Wilkinson, who manages our office in Seattle and is
coordinating the statewide campaign. Washington prisoners and their families pay some of the
highest phone rates in the nation, and we need your help to win this battle!

Here’s how you can help – first, please visit the campaign website:

www.wappj.org
There you can see all the ways you can make a difference. The site allows you to sign up for the
campaign and upload videos and share blog entries about how high prison phone rates make it
difficult for you to stay in touch with your incarcerated loved ones. You can even call in your
story to 1-877-410-4863, toll-free, at any time! We need to hear how you and your family have
been affected by high prison and jail phone rates. If you don’t have Internet access, you can mail
us a letter describing your experiences. Send letters to HRDC’s main office at: HRDC, Attn:
WA Phone Justice Campaign, P.O. Box 1151, Lake Worth, FL 33460. Washington state
prisoners can send a copy of this notice to their family members so they can get involved.
We especially need copies of telephone bills that show prison and jail phone charges!
By choosing to participate in the Washington Prison Phone Justice Campaign, you will be
playing a key role in ending the unfair phone rates that prisoners’ families have to pay. We
cannot win this battle without your help, so please visit the campaign website and share your
experiences! Donations are also welcome and greatly appreciated, and can be mailed to the
above address or made online via the campaign website. Thank you for your support!
Prison Legal News

27

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 33 of 142

Two Murders in Seven Months at
CCA-run Prison in Tennessee

O

n May 23, 2014, the Medical
Examiner’s Office in Nashville completed an autopsy report on Tennessee state
prisoner Jeffery Sills, 43, who was murdered
at the South Central Correctional Facility
in Clifton, Wayne County on March 28.
The facility is operated by Corrections Corporation of America (CCA), the nation’s
largest for-profit prison company.
Sills’ death was classified as a homicide
caused by “blunt and sharp force injuries.”
He was allegedly beaten and stabbed to
death by his cellmate, Travis Bess, who was
later transferred to the Riverbend Maximum Security Institution.
Jeffery Sills was at least the second
prisoner murdered at the CCA-run prison
since September 1, 2013, when Gerald Ewing, 28, was killed during a series of fights
at the facility. Comparably, according to the
Tennessee Department of Correction there
were no homicides at state-run prisons in
calendar year 2013 and to date this year.
Jeffery Sills’ death was particularly brutal,
according to the autopsy report. He suffered
lacerations, abrasions and contusions to his
head and neck, fractured cheek and nasal
bones, cutting and stab/puncture wounds, and
hemorrhages in the “posterior cervical spinal
muscles” and “skeletal muscle of back and
intercostal muscles of posterior thorax.”
Prison Legal News managing editor
Alex Friedmann, who also serves as associate
director of PLN’s parent organization, the
Human Rights Defense Center (HRDC),
said both prisoners and a CCA staff member employed at South Central contacted
HRDC after Sills was murdered.
“Several prisoners said Bess had publicly
stated he would kill Jeffrey Sills if they were
placed in a cell together, and that CCA guards
were present when he made that statement.
Regardless, they were both put in the same cell
with predictable results.” Additionally, “the
CCA employee who contacted us reported
that Sills had asked to be placed in protective
custody, but prison staff failed to act on his
request before he was murdered,” said Friedmann, who served six years at South Central
himself prior to his release in 1999.
The Tennessee Bureau of Investigation is investigating Sills’ death and has
reportedly indicated that an indictment
will issue soon.
July 2014

“Two murders within seven months
is extremely disturbing,” Friedmann stated,
“especially considering that CCA houses
about 5,000 [Tennessee] state prisoners
in three facilities while around 15,000
prisoners are held in 11 state-run facilities. Yet despite holding one-third as many
prisoners, none of whom are classified
maximum-security, two murders occurred
at a CCA facility and zero in state prisons
within the same time period.”
According to research conducted by
HRDC, historically there have been higher
rates of violence at the three CCA-operated
facilities in Tennessee than in state prisons.
Based on the most recent data provided by
the Department of Correction, during the
first five months of 2013 the average rate of
violent incidents at the CCA-run prisons
– including prisoner-on-prisoner assaults,
prisoner-on-staff assaults and institutional
disturbances – was 24.6% higher than at
state facilities.
“Other studies have also found higher
levels of violence at privately-managed pris-

ons,” said Friedmann. “This is presumably
due to the business model of the private
prison industry, which must cut costs in
order to generate profit. Those cuts, particularly in regard to staffing costs, lead to
high staff turnover rates, understaffing and
thus less security at private prisons. Consequently there are higher rates of violence
– up to and including murder, evidently.”
The FBI is currently investigating
fraudulent staffing reports at a CCA prison
in Idaho. [See: PLN, Oct. 15, 2013, p.28;
May 2013, p.22].
There have been two other recent homicides at CCA-operated prisons in other
states, including the November 2013 murder of Michael Patrick McNaughton, 55,
who was beaten to death at a CCA facility
in Florence, Arizona, and the March 2014
murder of California prisoner Todd Bush,
33, at the CCA-run North Fork Correctional Facility in Oklahoma.
Source: HRDC press release ( June 12,
2014)

Visitors Fingerprinted
at Alabama Prisons

A

labama’s prison system is the first
– and currently only – in the nation to
require visitors to be fingerprinted. In late
2012, the Alabama Department of Corrections (ADOC) implemented the new
policy due to what officials claimed was a
need for greater efficiency. A new computer
system had the capacity to scan fingerprints,
something the old system was not able to
do. The fingerprinting procedure was “part
of the upgrade” and the brainchild of the
ADOC’s IT department, according to
prison system spokesman Brian Corbett.
The old system required guards to review each visitor’s driver’s license to verify
their identity before allowing them into a
state prison.
“That was a time-consuming task,”
Corbett told the Montgomery Advertiser.
“Now, the verification process is much
faster, so visitors are moved through the
process much faster.”
“We still require visitors to have a
government-issued photo ID, and that re-

28

quirement will remain in place,” he added.
“But there are times when someone else
resembles the photo on an ID. Scanning
the fingerprint of visitors verifies they are
who they say they are.”
The program prompted an immediate
response from the American Civil Liberties
Union. David Fathi, director of the ACLU’s
National Prison Project, didn’t buy the
ADOC’s purported security concerns.
“Alabama prison officials can’t say with
a straight face that it is a security issue, not
when the remaining 49 state prison systems
do not require the scanning of visitors’ fingerprints,” he stated. “It is an unnecessary
barrier to visiting inmates.”
Fathi called the fingerprint scan “extreme” – especially since visitors to Alabama
state prisons already have to undergo a
criminal background check.
“If showing a driver’s license is all that
is required to get on an airplane that will
fly you near the White House,” he said, “it
should be enough to get you inside a prison
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 34 of 142

to visit someone.”
ADOC officials claimed that visitors’
fingerprints will not be shared with local,
state or other law enforcement agencies, nor
will they be used to check for outstanding
warrants.Alabama is the first state to require
visitor fingerprinting at all state prisons, but
other correctional facilities have considered
similar policies.
In March 2011, the Topeka CapitalJournal reported that the El Dorado
Correctional Facility in Kansas was going to
fingerprint visitors when leaving the prison.
Captain Dale Call, then the administrative
officer at El Dorado, said visitors would be
required to place an index finger on a scanner before they exit as a security measure to
help prevent prisoners from inadvertently
being released. Their fingerprints would not
be kept on file, however.
In the nation’s capital, officials with
the District of Columbia Department of
Corrections (DC DOC) announced in
early 2011 that they were considering fingerprinting visitors at the D.C. jail to check
for outstanding warrants.
The proposal prompted concerns that
the fingerprinting would be overly intrusive,

Prison Legal News

even though DC DOC officials said they
never intended to digitally store the fingerprints and the Metropolitan police would
decide what to do if a visitor’s fingerprints
revealed an outstanding warrant.
Corrections officials told the Washington Examiner that they wanted to use “live
scan” technology to take an image of the
visitors’ fingerprints – the same technology
used on prisoners to confirm their identity
when they enter and leave the jail. The District planned to use federal grant money to
pay for the system.
“Through a $134,000 grant from the
Office of Justice Grants, we will be [using]
the technology in our visitors control area to
assist [D.C. police] in the identification of individuals with outstanding warrants,”corrections
spokeswoman Sylvia Lane told the Examiner.
“If a match is made, DOC will detain the visitor and contact the police department and the
visitor will be taken into custody,” she said.
The DC DOC’s plan to fingerprint
visitors faced sharp criticism, however, and
officials announced in March 2011 that
they were reevaluating the proposal due to
a “host of legal, financial and operational
concerns that have been raised.”

29

In Maryland, a public protest accompanied the March 2013 implementation
of a policy requiring all visitors to the
Baltimore City Detention Center to be
fingerprinted. The warden at the jail said if
the fingerprinting reveals that a visitor has
been incarcerated, then he or she will not
be allowed to visit.
Sources: USA Today, www.correctionsone.
com, www.allgov.com, Associated Press, http://
cjonline.com, www.nbcwashington.com,
www.wbaltv.com, Montgomery Advertiser

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 35 of 142

T

Prison Industries in India Compete in Open Market

he government of the Indian state
of Tamil Nadu is expanding a program
that allows prison industries to compete
in the open marketplace under the ironic
brand name “Freedom.” Prison industry
programs already exist at nine central prisons, three women’s prisons and nine district
jails scattered across Tamil Nadu, located in
the southern tip of the Asian nation. The
facilities hold a combined total of about
11,000 prisoners.
Prison authorities are adding open-air
bazaars to market fresh produce grown by
prisoners to shoppers from neighboring
communities. The bazaars are in addition
to current prison industries that include the
production of soap, leather, textiles, books
and baked goods. Traditionally, those products have been sold only to other government
agencies and are considered substandard.
“So far, we were manufacturing goods
for the police and other departments. Such
government clients are not very demanding in terms of pricing, delivery schedule
and quality, although we ourselves try to
maintain this,” said S.K. Dogra, Additional
Director-General of Police in Tamil Nadu.
“But once you operate in the open market,
you have to adopt the best commercial
practices. So, naturally the entire process
of manufacturing will have to move up the
scale in terms of efficiency and quality.”
Providing prisoners with skills they can

use to obtain jobs after their release is a major objective of the program. Prison officials
said they have identified individuals who are
qualified to provide training to prisoners in
the use of modern manufacturing technology. Additionally, a portion of the revenue
generated by the sale of prison-made goods
on the open market is earmarked for prisoners’ accounts.
The expansion of the “Freedom” label
includes a jail in Ondipudur, in the western part of the state, where prisoners have
taken to farming. Under the watchful eye of
guards, they sell their produce in a newlycreated bazaar on the facility grounds.
P. Govindarajan, Deputy Inspector
General of Prisons in nearby Coimbatore,
said the bazaar is an effort to both rehabilitate and re-socialize prisoners. One of the
prisoners at the facility said the program has
allowed him to pursue his goal of becoming
a farmer. “Life took me elsewhere, but I am
finally living my childhood dream,” said
“Madhu,” a prisoner whose real name was
not disclosed, in February 2014.
Another prisoner said the program
gave him a sense of fulfillment. “It was a
very proud moment to see something I’d
planted give fruit,” he said, holding an ear
of corn he had grown.
Prison officials said the profits from
the bazaar are shared among prisoners,
prison staff and the Tamil Nadu government, with each receiving 20% of the net
proceeds. The remaining 40% is placed in
a state prison fund.
On February 23, 2014, Chief Minister J. Jayalalithaa inaugurated a “Freedom

T

Sources: www.thehindu.com, http://m.
newindianexpress.com

Jury’s Tasteless Gag Gifts to Judge and
Bailiff Fail to Demonstrate Unfair Trial

he Eleventh Circuit Court of Appeals has affirmed the denial of a death
row prisoner’s habeas corpus petition that
contended he was denied a fair trial by an
impartial judge and jury because the jurors
gave inappropriate gag gifts to the judge
and one of the bailiffs.
The habeas proceeding involved Georgia death row prisoner Marcus A. Wellons,
who was convicted of the murder and rape
of a fourteen-year-old girl in 1989. During
his trial, Wellons did not dispute that he
had killed and raped the victim; rather, he
July 2014

Shop” in the Puzhal prison complex in
eastern India, to serve as a market for
prisoner-produced goods; the shop includes
a bakery, a waiting hall for visitors and other
facilities.
A press release said the Chief Minister
directed that “Freedom Shops” be opened in
all central Indian prisons to market goods
made by prisoners. The initiative is part of
the state’s effort to reform prisoners and
provide them with training to help them
live a decent life after they complete their
sentences.
Products for sale include garments,
bakery items, footwear, soaps, candles,
mosquito nets, rain coats and more, all
manufactured by prisoners. In addition, the
program is providing agricultural training
to prisoners at two other facilities in Singanallur and Salem.
“I do not see any difficulty in marketing the products,” said Dogra. “Many of the
prison inmates are highly skilled. Since they
do not have any diversions within the prison,
they usually work with greater focus.”
Taken from a different perspective,
however, Dogra’s comments could portend
abuse of the system. Because prisoners “do
not have any diversions,” which makes them
good workers, prison authorities may have
an incentive to prevent the introduction of
any “diversions” – such as educational, treatment or other rehabilitative programs – to
ensure that prisoners focus on their profitgenerating prison industry jobs.

30

claimed he was either not guilty by reason
of insanity or guilty but mentally ill. After
finding him guilty, the jury recommended
a sentence of death for the murder and life
for the rape.
Defense counsel learned during posttrial interviews that some jurors gave gag
gifts to the judge and a bailiff either near
the end of or immediately following the
penalty phase of the trial. The judge received
chocolate candy in the shape of a penis
while the bailiff received chocolate in the
shape of female breasts. Wellons’ counsel
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 36 of 142

also learned that when the sequestered
jurors dined at a local restaurant, the judge
had spoken to them.
Motions for a new trial and for recusal of
the judge were denied, Wellons’ convictions
were affirmed on appeal and the Supreme
Court denied review. Likewise, a state habeas
petition was denied. After the federal district
court denied Wellons’ habeas petition, the
Eleventh Circuit affirmed.This time, however,
the Supreme Court granted certiorari and the
matter was subsequently remanded for an
evidentiary hearing on the “disturbing facts
of this case.” The district court again denied
relief and Wellons again appealed.
As for the encounter at the restaurant,
most of the jurors testified that the judge
had waved or nodded or made a brief comment. One juror recalled the encounter
occurred on the day the jury saw the autopsy
photos, and the judge commented that she
understood the jurors were upset.
Four of the jurors said they did not
become aware of the gag gift to the judge
until later. As it turned out, a friend of one
of the jurors owned a confectionery shop,
and the juror asked her husband to ask the
friend to make chocolate turtles for the
jury. The friend, who was unaware of the
serious nature of the case, included the gag
gifts to “lighten things up.” On the last day
of the trial, the gifts were given to the judge
and bailiff.
The Eleventh Circuit cited precedent
holding that an ex parte communication
alone is insufficient to overturn a conviction.
Additionally, the record did not indicate
the trial judge had showed partiality during
the brief encounter with the jurors at the
restaurant, so habeas relief on that issue was
properly denied.
Further, the Court of Appeals found
the gag gifts did not call into question the
impartiality of the jury. It held the “unfortunate giving of these tasteless gifts” was
“inconsequential to the verdict” and played

no role in the judge’s or jury’s consideration
of the case. The jurors testified that the gifts,
which were given at the conclusion of the
case, had nothing to do with anything that
occurred during the trial.
The appellate court noted judges or
bailiffs should not receive gifts from the
jury. “Trial judges are expected to handle
these situations, sternly admonish or discipline those involved, and disclose such
occurrences to each party so that timely
objections can be considered and made,”
wrote the Eleventh Circuit. While the judge
had failed to do so in this case, the Court
of Appeals found the jurors’ testimony
did not indicate Wellons had received an
unfair trial.
“We also acknowledge that the illadvised actions of a few thoughtless jurors
could create the perception that this jury
was too busy joking around rather than
deciding Wellons’s fate,” the appellate court
stated. “But these were two isolated incidents in the span of a multi-week trial and
we cannot say, on the basis of this record,
that the verdicts were tainted.”
Accordingly, the district court’s denial
of Wellons’ habeas petition was affirmed.
A petition for writ of certiorari, filed
with the U.S. Supreme Court, was denied
on October 7, 2013. Wellons remains on
Georgia’s death row. See: Wellons v. Warden, Georgia Diagnostic and Classification
Prison, 695 F.3d 1202 (11th Cir. 2012),
cert. denied.

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Learn how to defend your
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July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 37 of 142

T

Decline in Arrests of Los Angeles
County Probation Officers

he Los Angeles County Probation
Office has cited tougher self-policing
and stricter hiring standards for a dramatic
decrease in the number of employees arrested for driving under the influence and
various other crimes, but the union representing probation officers complained the
changes have led to understaffing.
Probation Office Chief Jerry Powers
said the number of probation employees arrested for crimes both on and off the job fell
from a high of 74 in 2011 to just 32 in 2013.
Nearly half the arrests last year – 15 – were
for DUI offenses. Most of the remaining
charges were theft and assault.
“We’ve come light years from where we
were to where we are today,” Powers said at
a news conference.
But the president of AFSCME Local
685, the union representing the county’s
probation officers, disputed Powers’ claim
that the drop in the number of arrests was
the result of hiring standards and selfpolicing.
“It’s like crime statistics, they go up
and down all the time,” union president
Ralph Miller said. “Taking credit for those
numbers going down is like taking credit
for the sun rising and setting.”
Powers said stricter hiring standards,
including polygraph tests and more extensive background checks of job applicants,
were responsible for the decline. The Probation Office has also become more aggressive
with internal investigations.
“The amount of discipline has almost
tripled, so we’re holding employees accountable,” Powers stated. “I think that sends a
message to all employees in the department
that you’re going to behave, on duty and off
duty, and if you fail to meet our standards,
we’re prepared to see that you correct your
behavior or you find another employer.”
The Los Angeles County Board of
Supervisors heaped praise on the Probation Office in late 2013 for implementing
the new standards, but the union said the
changes jeopardized public safety. By January 2014, the union noted, more than 1,000
of the Probation Office’s 6,600 job positions
remained vacant, while probation officers
were required to monitor some 80,000 adult
and juvenile offenders – a number that has
increased under California’s Realignment
July 2014

initiative. [See: PLN, June 2014, p.1].
AFSCME Local 685 complained that
the new hiring standards are not realistic,
and in a letter to the Board of Supervisors
accused Powers of having “seriously mismanaged the hiring and promotional process,
resulting in a grave public safety crisis.”
Arrests of probation officers fell from
74 in 2011 to 44 in 2012, but included
some high-profile cases, including one
high-ranking employee who was charged
with defrauding banks by falsely claiming
his identity had been stolen.
On September 17, 2012, FBI agents
arrested Carl Edward Washington, a
division chief of intergovernmental relations. In announcing the arrest, the FBI
said Washington faced “three counts of
bank fraud and three counts of making a
false statement to a federally insured financial institution.”
Washington is also an ordained minister and a former lawmaker who was elected
three times to the state Assembly. As a
Probation Office employee, he reportedly
received loans and credit cards to purchase
airline tickets and hotel rooms and to obtain
cash advances totaling “several thousand
dollars,” according to investigators.
Washington eventually stopped paying his debts and claimed to be a victim
of identity theft. On July 22, 2013, he was
sentenced to one day in federal prison with
credit for one day already served, plus three
years of supervised release and $193,898.25
in restitution.
Of the 44 Los Angeles County probation officers arrested in 2012, dozens were
charged with drunk driving, drug possession
and theft. Charges were also filed against
a six-year veteran employee for filing false
workers’ compensation claims, and against
a probation officer for allegedly shooting a
man in a bar.
“They shouldn’t have 40 arrests in
any department,” said Connie Rice, a civil
rights attorney and police watchdog who
has been critical of the Probation Office.
“If you have 40 arrests, that ought to be a
sign that something is very wrong. It’s like,
‘Houston, we have a problem.’”
The number of probation employees
charged with crimes fell again to 32 in
2013.

32

“We don’t want any arrests, but reducing the numbers by half in two years shows
our new policies are having an impact,”
said Assistant Chief Probation Officer
Don Meyer. “If we could reduce it to zero
– which is unrealistic – that would be nice,
but we’ve obviously done a good job. It’s
not by accident that those numbers have
gone down.”
Still, some high-profile arrests have
continued. In August 2013, probation officer Frank Elliott Boyd III, 48, pleaded not
guilty to charges arising from a scheme to
defraud the state of $1.6 million in phony
childcare payments.
According to prosecutors, Boyd, his
ex-girlfriend and four other co-defendants
allegedly set up a number of licensed homebased childcare centers, then urged parents
to file fake documents with county and state
agencies for childcare that was never provided. Boyd was charged with conspiracy,
grand theft and perjury.
Also in 2013, a former probation officer
was arrested on misdemeanor charges of
using his iPad to take photos up a woman’s
skirt. Julio Mario Medal was sentenced to
five years’ probation and ordered to perform 120 days of community service after
pleading guilty to secretly videotaping for
sexual gratification, unlawful loitering and
attempted videotaping for sexual gratification.
Arrests have continued into 2014.
For example, former Los Angeles County
probation officer Robyn Palmer, 29, was
arrested on felony charges of insurance
fraud, forgery, grand theft and wire fraud
on May 16, 2014. She had received over
$29,000 in workers’ comp payments for an
injury allegedly received while restraining
a juvenile offender. However, it was later
learned she was not at work on the day she
claimed the injury occurred. Palmer was
jailed on $100,000 bond.
Meyer noted that most of the Probation Office employees who have been
arrested were hired in 2005-2008, when the
office did not conduct background checks
on job applicants.
Sources: Los Angeles Times, www.scpr.org,
http://losangeles.cbslocal.com, www.examiner.
com, www.dailynews.com
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 38 of 142

States Renewing Their Prison Phone Contracts
As state DOCs renew or rebid their prison phone contracts, you can help urge them
to lower intrastate phone rates and eliminate commission kickbacks!
The Campaign for Prison Phone Justice needs your help in:

**** Utah, Arkansas and Nevada ****
The Departments of Corrections in the above states are in the process of re-bidding or renewing their
prison phone contracts. Most DOCs receive a commission (kickback) on revenue generated from calls
made by prisoners, which results in excessively high phone rates. Although the FCC voted last year
to cap the costs of interstate (long distance) prison calls, which went into effect on February 11, 2014,
the order does not apply to intrastate (in-state) calls. An estimated 85% of prison phone calls are instate. This is an opportunity to ask DOCs to forgo commissions and ensure their new prison phone
contracts are based on the lowest cost to those who pay for the calls – mostly prisoners’ families.

Take Action NOW! Here’s What YOU Can Do!
Ask your family members and friends to write, email, call and fax the DOC and the governor’s office
(addresses and contacts are listed below), requesting that the DOC: 1) forgo commission payments
when re-bidding or renewing its prison phone contract, and 2) base the new contract on the lowest
calling costs. Lower prison phone rates should apply not just to long distance calls but also to in-state
calls. For a sample letter or to easily send an email, visit the Campaign for Prison Phone Justice’s
website and click on the “Take Action” tab:

www.phonejustice.org
Prison phone contract information & Contacts:
Utah: Receives a 55% kickback; existing contract expires on 7-31-2014. Charges $4.60 for a 15minute collect intrastate call and $3.15 for a collect local call. Contacts: Utah DOC, Director Rollin
Cook, 14717 South Minuteman Drive, Draper, UT 84020; ph: 801-545-5513, fax: 801-545-5726,
email: musher@utah.gov. Governor Gary R. Herbert, State Capitol, Suite 200, Salt Lake City, UT
84114; ph: 801-538-1000 or 800-705-2464, fax: 801-538-1557, email: sdeakin@utah.gov
Arkansas: Receives a 45% kickback; existing contract expires on 8-15-2014. Charges $4.80 for a
15-minute collect intrastate and local call. Contacts: Arkansas DOC, Director Ray Hobbs, Arkansas
Department of Correction, P.O. Box 8707, Pine Bluff, AR 71611-8707; ph: 870-267-6200, fax: 870267-6244, email: ray.hobbs@arkansas.gov. Governor Mike Beebe, State Capitol, Room 250, Little
Rock, AR 72201; ph: 501-682-2345, fax: 501-682-1382, email: tonya.mercer@governor.arkansas.gov
Nevada: Receives a 54.2% kickback; existing contract expires on 8-28-2014. Charges $2.95 for a
15-minute collect intrastate and local call. Contacts: Nevada DOC, Director James Cox, 3955 West
Russell Road, Las Vegas, NV 89118; ph: 702-486-9910, fax: 702-486-9961, email: gcox@doc.nv.gov.
Governor Brian Sandoval, State Capitol Building, 101 North Carson Street, Carson City, NV 89701;
ph: 775-684-5670, fax: 775-684-5683, email: scheduling@gov.nv.gov

Prison Legal News

33

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 39 of 142

Kentucky Prisoner’s Due Process Rights
Violated in Disciplinary Hearing
by Robert Warlick

O

n August 29, 2013, the Kentucky
Supreme Court affirmed an appellate decision that found an Adjustment
Committee (AC) in a prison disciplinary
proceeding had violated a prisoner’s due
process rights by not meeting the “some
evidence” standard as applied to confidential
informants (CIs).
Ontario Thomas, imprisoned at the
Northpoint Training Center in Kentucky,
was found guilty by the AC in June 2009 of
assaulting another prisoner, based solely on
statements from at least two CIs.
On December 16, 2009, Thomas filed
a petition in the Lyon Circuit Court alleging that the AC’s reliance on the CI
information violated his due process rights.
However, before the court ruled on his
petition, two AC reviews were conducted
which determined that the CI statements
were reliable, reaffirming the guilty finding. The AC stated it had “review[ed] the
confidential information and believe it to
be true and reliable according to policy.”
The Circuit Court subsequently dismissed
Thomas’ petition, finding that his rights had
not been violated.
The Court of Appeals reversed due to
the AC’s failure to meet the “some evidence”
standard during Thomas’ disciplinary hearing. The appellate court relied primarily on
Hesley v. Wilson, 850 F.2d 269 (6th Cir. 1988),
which requires a court to assess the reliability
of a CI and the CI’s information to determine whether it qualifies as “some evidence.”
The record on appeal provided no details as
to the credibility of the CIs; consequently,
the Court of Appeals held that Thomas’ due
process rights were violated and remanded
the case for a new AC hearing.

July 2014

The state appealed and the Kentucky
Supreme Court affirmed. Citing supporting federal cases from the Third, Seventh,
Eighth and Ninth Circuits, the Court noted
that the record “simply begs for some corroborating factors” of the CIs’ reliability,
which could be done by stating for the
record, “without divulging identities, why
witnesses are reliable.”
The state Supreme Court concluded
that “there is plainly no evidence to support
the Adjustment Committee’s determination

that the informants’ information was reliable. We know nothing of these informants
and their information – whether they were
eyewitnesses or whether there was any corroborating evidence. It would be helpful if the
investigating officer, after being duly sworn,
gave written details of what was related. This
would not only bolster the observation of the
witnesses, but would also provide the inmate
charged with a better opportunity to rebut the
evidence against him.” See: Haney v. Thomas,
406 S.W.3d 823 (Ky. 2013).

Brady Violations Result in Habeas Relief
for Pennsylvania Death Row Prisoner
by David Reutter

T

o correct a “grave miscarriage of
justice,” Pennsylvania U.S. District
Court Judge Anita Brody granted a writ
of habeas corpus to a state prisoner and
vacated his conviction and death sentence
for a murder that “in all probability he
did not commit.” The court found violations under Brady v. Maryland, 373 U.S.
83 (1963) due to the state’s withholding
of evidence.
James A. Dennis was convicted in
Philadelphia for the October 22, 1991
killing of high school student Chedell
Williams. Williams, 17, and a friend, Zahra
Howard, were approached by two men who
demanded they give up their earrings. The
girls fled; Howard hid behind a fruit stand
while Williams ran into the street.
The men chased Williams. One of
them held a gun to her neck and shot her;
they then jumped into a car and sped away.

34

Williams was pronounced dead shortly
after her arrival at a hospital.
Dennis’ conviction was “based on scant
evidence at best,” the district court wrote in
an August 21, 2013 ruling. “It was based
solely on shaky eyewitness identifications
from three witnesses, the testimony of another man who said he saw Dennis with a
gun the night of the murder, and a description of clothing seized from the house of
Dennis’ father that the police subsequently
lost before police photographed or catalogued it.”
The police never recovered a weapon,
never found the car used by the assailants
and never found two accomplices described
by witnesses. Judge Brody said confidence
in Dennis’ conviction was significantly
diminished by flaws with the investigation
and prosecution of the case, and noted
“There was virtually no physical evidence
presented at trial.”
All five of the nine witnesses who provided estimates of the shooter’s height put
him at 5’7” to 5’10”, with four describing
him as 5’9” or 5’10”. Dennis, however, is
only 5’5”. None of the witnesses confidently
identified Dennis right away, but three ultimately became the only testifying witnesses
for the state. The other witnesses did not
testify – a fact the district court found to be
a troubling flaw in trial counsel’s investigation and trial preparation.
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 40 of 142

Of the witnesses not called to testify,
four did not identify Dennis as the shooter,
three did not pick him from a photo array
and another chose a different suspect from
a line-up. A witness who had looked the
shooter in the eye definitively said Dennis
was not the shooter, but the state never
informed defense counsel of that fact.
Upon considering Dennis’ habeas petition, the federal district court found several
Brady violations. First, it found violations in
the suppression of six documents. The state
did not dispute that it failed to disclose the
documents to Dennis until a decade after
his trial.
One of those documents was a
statement from a jail prisoner who had corroborated evidence in the case and pointed
to two other suspects. Another involved a
witness who saw Dennis on the day of the
murder; she gave police an original receipt
from the Department of Public Welfare
that would have corroborated Dennis’ alibi
that she had seen him on a bus at the time
of the murder.
The prosecution also suppressed statements from Zahra Howard’s aunt and
uncle, who said she had recognized the

shooter from her high school and two
people she knew were present during the
shooting.
As for the witness who said he had seen
Dennis with a gun on the day Williams
was killed, he only made that statement
after being arrested “for a violent assault of
his pregnant girlfriend that left her in the
hospital,” and six months later prosecutors
dropped the felony assault charges against
him “without explanation.”
The district court found that Dennis
was prejudiced under Brady by the prosecution’s withholding of documents related to
the two witness statements and the receipt
that would have corroborated his alibi. It
also held the cumulative effect of the Brady
violations provided
a basis for granting
habeas relief.
“[T]here can
be no question” that
the state had violated Dennis’ right to
due process by withholding exculpatory
evidence that would
have made a material

difference at his trial, Judge Brody wrote.
“As a result, after serving over 20 years in
prison, Dennis is entitled to receive either
a new trial or his freedom.”
As of July 2014, however, he has
received neither. The state appealed the
district court’s judgment, which has been
stayed pending a decision by the Third
Circuit. Meanwhile, Dennis remains on
Pennsylvania’s death row. He is represented pro bono by the law firm of Arnold
& Porter, LLP. See: Dennis v. Wetzel, 966
F.Supp.2d 489 (E.D. Pa. 2013).
Additional sources: www.jimmydennis.org,
www.metro.us, www.dailymail.co.uk, www.
arnoldporter.com

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Prison Legal News

35

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 41 of 142

New York Jail Guard Sentenced for
Sexually Abusing Seven Prisoners

A

former guard at the Monroe
County Correctional Facility in Rochester, New York received six months in jail
plus 10 years’ probation and was required
to register as a sex offender after he pleaded
guilty in April 2013 to sexually abusing
seven female prisoners.
Former Sgt. Robert Wilson, 41, was
sentenced after entering the plea to a
21-count indictment that accused him of
engaging in criminal sexual contact with
the prisoners for two years, from 2010 to
July 2012. The charges included rape, sexual
abuse and official misconduct. [See: PLN,
Nov. 2013, p.56].
Four of the seven victims filed suit in
federal court in October 2013 against Wilson and Monroe County Sheriff Patrick
O’Flynn for unspecified compensatory and
punitive damages, joining a previous lawsuit
that was filed in July. The five suits, which
also name Monroe County as a defendant,
contend that O’Flynn and the county knew
as early as 2010 that Wilson had an “inappropriate relationship” with a female prisoner
but did nothing to stop his misconduct.
“These are five women that are at the
lowest point in their life,” said attorney
Robert King, who is representing the victims. “What we know is that this happened
time after time after time, woman after
woman after woman, inside the jail and in
some instances outside the jail after they
were released.”
Each of the lawsuits claims that “other
members of the Monroe County Sheriff ’s
Office allowed Sergeant Wilson to be
alone” with the women, and one victim

alleged the Sheriff ’s Office was “alerted
to the inappropriate relationship” but “did
not investigate.... If they did investigate,
the investigation was not sufficient,” and
officials “did not take action to remedy the
situation and prevent future harm.”
At the time of his indictment, Wilson
was a 17-year veteran and supervisor at the
jail; investigators said that for more than
two years he used his position to sexually
abuse female prisoners. He resigned after
being charged.
“I find that Wilson’s actions were obviously reprehensible and disturbing, and they
are an embarrassment to our organization
and to the community we serve,” said Sheriff O’Flynn. “He was a supervisor in charge
so he had access to the entire facility, and
he had very calculated actions to be able
to manipulate the system to accommodate
his actions.”
Investigators said they believe Wilson
had relationships with many of the women
before they entered the jail; he apparently
did not take any of the prisoners off jail
property, but did take them out of secure
areas at times.
Monroe County District Attorney
Sandra Doorley stated the victims deserve
justice. “Regardless of what they’ve done
in the past and where they are and what
their situation in life is, if they are victims
and a law is violated, we will represent their
interest in court,” she said.
The prisoners’ lawsuits allege numerous
sexual encounters involving Wilson. One of
the victims said Wilson encouraged her “to
strip tease in her cell while he watched,” then

later directed her to perform oral sex. In another case, the victim claimed Wilson called
her away from her cell for “unscheduled
medical appointments” and led her into an
office where he engaged “in personal, flirtatious and sexually explicit conversation.”
The same victim’s lawsuit also alleges
that Wilson told her to “write sexually
explicit letters to him, which she did,” and
“Wilson wrote a sexually explicit letter” back.
She also claims that after she was released
from jail, Wilson took her to his apartment
and “tried to force” her to have sex “but allowed her to give him oral sex instead.”
Another of the prisoners said Wilson
came to her cell, sat on her bunk and “directed her to show him her breasts.” The lawsuit
filed by a fourth victim alleges that Wilson
took her to a private room for sex after calling
her into a hallway with the excuse that he
had cleaning chores for her to do.
Authorities said Wilson was not reported by any of the prisoners he victimized;
rather, an investigation was initiated after
another staff member at the jail reported
Wilson for improper use of computers,
which led to the discovery of his sexual misconduct. The five lawsuits filed by Wilson’s
victims all remain pending. See: Goodison,
Jansen, Andrews, DiStefano and Knapp v.
Monroe County, U.S.D.C. (W.D. NY ),
Case Nos. 6:13-cv-06342, 6:13-cv-06566,
6:13-cv-06567, 6:13-cv-06568 and 6:13cv-06569.
Sources: www.corspecops.com, www.whec.
com, Associated Press, Rochester Democrat and
Chronicle, www.13wham.com

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July 2014

36

Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 42 of 142

BOP Grievance System Contributes to
“Compliance or Defiance” by Prisoners

A

2013 study found that the grievance system utilized by the federal
Bureau of Prisons (BOP) appears to have
become an important tool to defuse prisoner complaints, supporting the belief that
the failure of BOP officials to adequately
respond to grievances contributes to higher
levels of violence in federal prisons.
The research study determined that another benefit of the BOP’s grievance system
is deflecting or reducing potential litigation.
Indeed, many federal court decisions have
been decided in the BOP’s favor based upon
prisoners’ failure to exhaust administrative
remedies as required by the Prison Litigation Reform Act.
The study, “Procedural justice and
prison: Examining complaints among federal inmates (2000-2007),” was conducted
by David M. Bierie with the U.S. Marshals
Service and the Department of Criminology
and Criminal Justice at the University of
Maryland. Although it concentrated on what
it termed the “procedural justice paradigm,”
the study also revealed what Bierie called an
unexpected finding: “violence grew as the
number of support staff per inmate (e.g.,
teachers, counselors) declined within a given
prison. However, the opposite effect was
found with respect to increases in custody
staff per inmate within a given prison.”
The study appears to validate the
BOP’s grievance system. “Generally speaking, people feel a process is more ‘just’
when their voice is heard before decisions
are made, decision makers treat everyone
equally, outcomes are proportionate, and
there is a process of appeal or challenge if
they don’t agree with an outcome.” The opposite is also true if the system is perceived
to be unfair; thus, the grievance process
plays “a central role in generating compliance or defiance” by prisoners.
The study makes liberal use of other research into the U.S. criminal justice system
to lend weight to its conclusions. Several
previous studies had found that a grievance
system was not only about directly resolving problems, but also allowing prisoners
to vent their frustrations and anger about
perceived injustices by prison officials without resorting to violence.
Prison Legal News

by Derek Gilna
According to the 2013 study, prisons
“present an environment optimized to
magnify the likely impacts of perceived injustice by presenting environments that are
characterized by verbal threats and insults,
physical pain, unpleasant odors, disgusting
scenes, noise, heat, air pollution, personal
space violations and high density.”
Therefore, “[p]erceived injustice is
serious, especially in the eyes of inmates,
and the impact and relevance is further
magnified by the environment they live in,
delivering a near constant state of elevated
and clustered strain.”
The study found that the BOP’s grievance system is perceived by some prisoners
as overly formal and more concerned with
procedural practices and deadlines than the
substance of a complaint. Accordingly, “data
suggest a higher volume of late or rejected
[grievance] responses will increase violence.”
Bierie examined data from the BOP’s
Sentry system, staffing levels in federal prisons, and other BOP documents showing
the number and classification of prisoner
grievances over a seven-year period from
January 2000 through December 2007.
The research revealed that most complaints concerned issues related to discipline,

37

medical care and staff, with food, housing
and use of force at the bottom of the list. The
number of procedural grievance rejections
and prisoner density (i.e., overcrowding)
were tracked, as well as the ratio of prisoners to BOP employees, to determine if a
relationship existed between those factors
and levels of prisoner violence.
Interestingly, according to the study,
the number of grievances appeared to peak
in 2004 while assaults and serious violence
within BOP facilities increased from 2000
through 2007, perhaps reflecting increased
overcrowding in the federal prison system.
In addition to its other findings, the
study concluded that “most features of the
grievance process ... did not impact violence.
Neither the volume of current complaints,
nor the distributive justice outcomes predicted violence.” However, “[t]wo features of the
grievance process consistently predicted ...
violence: the proportion of responses which
were late, and the proportion of responses
which were substantively rejected.”
Source: “Procedural justice and prison: Examining complaints among federal inmates
(2000-2007),” by David M. Bierie. Psychology,
Public Policy and Law, Vol. 19(1), Feb. 2013

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 43 of 142

England, Increasing Number of States Allow
Same-Sex Prisoner Marriages or Civil Unions

P

risoners in England, including
those in the highest security classification, are being allowed to enter into
same-sex civil partnerships due to a policy
change that mirrors changes to same-sex
marriage laws in an increasing number of
states in the U.S.
Prison Service Order 4445 outlines
the requirements for prisoners in England
and Wales seeking to enter into same-sex
civil unions. The Order requires that both
prisoners be of the same gender, over 16
years old, not related, not currently married
and have at least three months remaining
on their sentences. The Order also covers
transsexual prisoners.
Prisoners are responsible for making
all arrangements for the civil partnership
ceremony and must pay all associated costs.
They are allowed to invite guests, but only
a reasonable number as determined by the
prison governor. Before authorizing the civil
partnership, prison authorities are required
to make a risk assessment determination.
The Order applies to the Prison
Service’s population of around 86,000
prisoners.
In the United States, the Department
of Justice announced in a February 2014
memo that it will grant full recognition to
same-sex marriages to “the greatest extent
possible under the law.” U.S. Attorney
General Eric Holder said the federal government is committed to equal protection.
“In every courthouse, in every proceeding and in every place where a member of
the Department of Justice stands on behalf
of the United States – they will strive to
ensure that same-sex marriages receive the
same privileges, protections, and rights as
opposite-sex marriages under federal law,”
Holder stated.
For federal prisoners, the policy change
means that same-sex spouses now have
visitation rights, and prisoners can seek
furloughs for a crisis involving a same-sex
spouse. In federal court, same-sex couples
now have the right to refuse to testify
against their spouse, even in states that do
not recognize same-sex marriages.
Gay rights advocates praised Holder’s
announcement, saying it will “change the
lives of countless committed gay and lesbian couples for the better.” Human Rights
July 2014

Campaign President Chad Griffin told the
Washington Post, “While the immediate
effect of these policy decisions is that all
married gay couples will be treated equally
under the law, the long-term effects are
more profound.”
In August 2013, the California Department of Corrections and Rehabilitation
(CDCR) issued a memo extending to
state prisoners the right to marry same-sex
partners. The memo followed a Supreme
Court ruling that overturned Proposition 8,
which had prohibited same-sex marriages
in the state.
“Effective immediately, all institutions
must accept and process applications for a
same sex marriage between an inmate and a
non-incarcerated person in the community,
in the same manner as they do marriages
between opposite sex couples,” M.D.
Stainer, director of the CDCR’s Division of
Adult Institutions, wrote in the memo.
However, “a currently incarcerated
inmate shall not, at this time, be permitted
to marry another currently incarcerated
inmate” due to security concerns.
In Illinois, prison officials said a policy
regarding same-sex marriages will be in
place when a statute legalizing such marriages in the state takes effect on June 1,
2014. “The Illinois Department of Corrections will be prepared to implement a

policy regarding this law when it goes into
effect,” said spokesman Tom Shaer. Illinois
state prison policy bans the marriage of two
prisoners, but prisoners will be able to marry
non-prisoners of the same gender.
Marriages between prisoners are also
prohibited in Minnesota, but Minnesota
Public Radio reported in September 2013
that state prison officials are considering
how they will handle marriage requests by
sex offenders who have finished their prison
sentences but are considered too dangerous to be released. According to the news
report, two male prisoners who have been
civilly committed contacted local officials
to request a marriage license. State law
requires marriage license applicants to apply in person, however, and the Minnesota
Department of Human Services denied the
offenders’ request for transportation to the
licensing office.
In New York, the State Department
of Corrections and Community Supervision held its first same-sex marriage at the
Auburn Correctional Facility in December
2011, when a male prisoner married a former
prisoner in a civil ceremony. [See: PLN, May
2012, p.37; April 2012, p.50].
Sources: www.dailymail.co.uk, New York
Daily News, www.pbs.org/newshour, www.
pantagraph.com, www.mprnews.org

Oregon Victim’s Right to Restitution
Survives Prosecutor’s Statutory Violation
by Mark Wilson

T

he Oregon Court of Appeals held
that a prosecutor’s failure to comply
with state restitution laws did not deprive a
trial court of authority to impose restitution
after sentencing.
Oregon law requires the prosecutor to
“investigate and present to the court, prior
to the time of sentencing, evidence of the
nature and amount” of a victim’s damages
resulting from a crime.
Cindie Wagoner was charged with
identity theft. On October 15, 2009, the
victim provided proof of her economic
losses to Flores, a victim advocate assigned
to her case by the Washington County

38

District Attorney’s Office. However, Flores
did not forward that information to the
prosecutor.
Wagoner pleaded guilty and was sentenced in December 2009. The prosecutor
noted that the time had passed for the victim to request restitution, and the trial court
did not award any restitution. The January 5,
2010 judgment in Wagoner’s case indicated
that the restitution amount was zero.
Flores was terminated the following
month. When other employees cleaned out
Flores’ desk they found the victim’s October
15, 2009 proof-of-loss documents.
In March 2010, the victim filed a moPrison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 44 of 142

tion asserting that she had a right to receive
prompt restitution under Article I, section
42(1)(d) of the Oregon Constitution.
After a hearing, the trial court agreed
that the victim was entitled to restitution;
the court then issued a May 24, 2010
supplemental judgment requiring Wagoner
to pay restitution of $800.
Wagoner appealed, arguing that because the prosecutor had failed to present

evidence of the victim’s loss before sentencing as required by ORS 137.106, the trial
court had no authority to subsequently
impose restitution.
The Oregon Court of Appeals noted
that it had “recently addressed a very
similar question” in State v. Thompson, 257
Ore. App. 336, 306 P.3d 731 (Or. Ct. App.
2013), and found the ruling in Thompson
controlled. The violation of ORS 137.106

“did not prevent the court from imposing
restitution in order to provide the victim a
remedy by due course of law, after it was
discovered that her constitutional right to
restitution was violated.”
Accordingly, the trial court’s order
requiring Wagoner to pay restitution was
affirmed. See: State v. Wagoner, 257 Ore.
App. 607, 307 P.3d 528 (Or. Ct. App.
2013).

Habeas Petitioner Cannot Avoid Payment of Appellate Filing Fees
by Michael Brodheim

T

he Seventh Circuit Court of Appeals has held that a prisoner seeking
collateral relief cannot avoid paying appellate filing fees.
Following a murder conviction, Indiana
prisoner Kelly S. Thomas was sentenced
to 65 years in prison. After his appeal and
collateral attack were rejected in the state
courts, he filed a federal petition for writ
of habeas corpus under 28 U.S.C. § 2254.
When that was denied he filed a notice of
appeal. The district court judge declined to
issue a certificate of appealability, instead
certifying that the appeal was not taken in
good faith.
Based on that certification, Thomas
was required to pay appellate fees of $455
before the Seventh Circuit would consider
entertaining his appeal, unless he could
persuade the appellate court to allow him

to proceed in forma pauperis. Even then he
would still owe the fees – if he won, they
would be shifted to the state as part of the
appeal costs; if he lost, the fees would be
“payable like any other debt.”
Thomas filed a motion requesting
that the Court of Appeals disregard the
district court’s certification of bad faith.
He contended that prisoners are simply
not required to pay appellate fees assessed
under the Prison Litigation Reform Act
(PLRA).
The Seventh Circuit rejected his argument, noting that appellate fees are
authorized by 28 U.S.C. § 1913, which long
predates the PLRA. The Court of Appeals
gave Thomas 21 days to file a motion for permission to proceed in forma pauperis (which
depends on demonstrating that he cannot

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pay the fees and his appeal is not frivolous)
and a certificate of appealability (which is
dependant on a “substantial showing of the
denial of a constitutional right”).
The Seventh Circuit noted that an appeal can be non-frivolous and still fail to
meet the standard for a certificate of appealability. Thomas filed a petition for writ of
certiorari, which was denied on November
18, 2013. See: Thomas v. Zatecky, 712 F.3d
1004 (7th Cir. 2013), cert. denied.

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39

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 45 of 142

Prison Officials Liable for Private Employer ADA Violations
by Mark Wilson

T

he Ninth Circuit Court of Appeals
held last September that prison officials
are liable for violations of the Americans
with Disabilities Act (ADA) committed
by private employer contractors.
Arizona law requires state prisoners to
work 40 hours per week. Most are employed
in the Arizona Department of Corrections’
Work Incentive Pay Program (WIPP),
earning from 10 to 50 cents per hour. Prisoners who work for Arizona Correctional
Industries (ACI), which provides prison
labor for private company contractors, earn
significantly more.
One of those companies is Eurofresh,
“America’s largest greenhouse operation,”
which boasts that it can produce 200
million pounds of hydroponic tomatoes
annually.
In July 2008, Arizona prisoner William W. Castle was hired by Eurofresh as a
tomato picker, earning more than $2.25 an
hour. He was required to push a 600-pound
tomato cart and stand or walk during his
entire seven-hour shift.
Castle soon began suffering ankle
swelling and pain when he stood longer
than two hours. Decades earlier, Castle had
received a 20% service-connected disability
rating for an ankle injury sustained in an
Army parachute accident.
After a Eurofresh supervisor told
Castle he would be fired for taking breaks
to rest his ankle, Castle asked ACI and
Eurofresh to be reassigned to a different
position. His request was denied and he
was told his only option was to quit. Prison
officials then moved Castle to a WIPP job
in the motor pool, which paid only 50 cents
an hour.
Castle filed suit against Eurofresh and
state prison officials, claiming they had violated the ADA and the Rehabilitation Act
by failing to accommodate his disability. The
district court granted summary judgment to
the defendants and Castle appealed.
The Ninth Circuit reversed summary
judgment as to the prison officials, rejecting
their argument that they lacked authority
over Eurofresh employment decisions.
Following Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010) [PLN,
Nov. 2011, p.28], the appellate court observed that government officials are liable
July 2014

for ADA violations committed by private
contractors.
Since ACI admittedly contracted with
Eurofresh to provide “benefits” to prisoners,
including paid labor and vocational training,
the Court of Appeals concluded that “one
benefit State Defendants may not harvest is
immunity for ADA violations: State Defendants are obligated to ensure that Eurofresh
– like all other State contractors – complies
with federal laws prohibiting discrimination
on the basis of disability.”
Noting that the en banc court in Hale
v. Arizona, 993 F.2d 1387 (9th Cir. 1993)
[PLN, Sept. 1993, p.8] had held that prisoners are not “employees” entitled to minimum
wage under the Fair Labor Standards Act,
the Ninth Circuit found that “Castle is
not Eurofresh’s employee under the ADA
because his labor belongs to the State of
Arizona.” Therefore, Eurofresh was not liable for its ADA violations and was entitled
to summary judgment.
“Castle’s claims against Eurofresh
were properly dismissed because Castle
and Eurofresh were not in an employment
relationship, and Eurofresh does not receive federal financial assistance. However,
judgment was improperly granted to the
State Defendants. The State Defendants
are liable for disability discrimination

committed by a contractor,” the Court of
Appeals concluded.
“A profit-seeking firm that hires
convicts at its own worksite should not be
shielded from the costs of compliance with
the ADA,” Circuit Judge Marsha S. Berzon
wrote in a concurring opinion, encouraging reconsideration of Hale. “Permitting
private employers to escape those costs
while profiting from the use of prison labor
markets undermines the enforcement of the
statutory requirements generally, by creating
incentives for competing employers to shirk
compliance with regard to non-prison labor
– and thereby economically disadvantaging competitors of those employers using
prison labor.”
Nevertheless, noting that precedent
“forecloses consideration of such concerns,”
Judge Berzon reluctantly concurred that
Hale precludes a finding that Castle was an
“employee” under federal law. Thus, his only
remedy is against Arizona prison officials.
See: Castle v. Eurofresh, 731 F.3d 901 (9th
Cir. 2013).
The case remains pending on remand,
with the Arizona Department of Corrections filing a renewed motion for summary
judgment on April 14, 2014. Castle, who
has been released from prison, is proceeding pro se.

Seventh Circuit Reverses Summary
Judgment in Dental Care Suit
by David M. Reutter

O

n July 19, 2013, the Seventh Circuit Court of Appeals reversed a grant
of summary judgment to three defendants,
holding there was sufficient evidence for
a jury to find they acted with deliberate
indifference to a prisoner’s serious dental
needs.
Richard M. Smego, a civil detainee at
Illinois’ Rushville Treatment and Detention
Center, filed suit in federal court alleging
that a dentist, two doctors and a dental
hygienist had violated his constitutional
rights.
When Smego arrived at Rushville, Dr.
Jacqueline Mitchell, a dentist who contracts
with Wexford Health Sources, examined

40

him in December 2005 and found he had
twelve teeth with cavities. She promised to
begin filling them in early 2006.
Yet it was not until June 24, 2007 –
eighteen months later – that Dr. Mitchell
saw Smego again. She provided no care
during that visit, and it was not until the
next month that she installed a temporary
filling in one tooth but did nothing for his
most painful tooth. In August 2007, she
extracted the painful tooth and prescribed
Motrin, a painkiller to which Smego was
allergic.
Smego complained to his therapist
about his persistent dental pain in November 2007, almost two years after he first
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 46 of 142

saw Dr. Mitchell. The therapist informed
Dr. Michael Bednarz, Rushville’s Medical
Director, and Mitchell assured him that
Smego was receiving appropriate care.
Dr. Hughes Lochard, a Wexford physician who saw Smego for an unrelated
medical issue, examined Smego’s teeth.
While he said he did not want to get
involved in dental issues, he prescribed
Motrin for the pain and refused to prescribe
any other medication.
Dr. Mitchell did not see Smego again
until 2008, when she placed fillings in
three of his teeth; three days after that
visit, Smego filed his federal civil rights
action.The district court granted summary judgment to the defendants and
he appealed.
The Seventh Circuit disagreed with the
district court’s conclusion that Smego had
failed to state viable claims or only alleged
negligence by the defendants. The Court
of Appeals found a jury could conclude
that Mitchell failed “to spare Smego thirty
months of serious dental pain by providing
the treatment she herself already decided
was necessary.” Moreover, “Dr. Mitchell
admitted that even five years after she had
diagnosed Smego’s cavities she still had not
begun treating at least two of them,” the
appellate court noted.
There was ample evidence of Mitchell’s
personal contact with Smego, which made
her aware of his tooth decay and pain. A
jury could also conclude, the Seventh Circuit wrote, that what little care Dr. Mitchell
provided was inappropriate.
The dental hygienist, Kelly Lawshea,
told Smego to not be a “pest” when he
spoke to her about his pain and difficulty
in obtaining dental treatment. While she
could not be held liable for failing to sched-

ule treatment or obtain supplies that were
blamed as the cause of the delay in treatment, a jury could find her “pest” statement
“discouraged Smego from taking more
aggressive steps to receive treatment from
the dental office.”
As to Dr. Bednarz, the Court of Appeals found that Smego failed to present
sufficient evidence of deliberate indifference. Bednarz took action by contacting
Dr. Mitchell, and he was allowed to rely on
her representations absent clear evidence
that those representations were false. The
opposite conclusion was reached as to Dr.
Lochard, however. He never contacted
Mitchell and did not defer to her, and had
also prescribed the ineffective treatment
of Motrin. In the latter regard, the Seventh Circuit noted that in a different case,
another “Wexford physician repeatedly
prescribed ibuprofen (the active ingredient
in Motrin) despite a known allergy,” citing
Olive v. Wexford Corp., 494 Fed. Appx. 671
(7th Cir. 2012).
The district court’s summary judgment order was vacated as to Mitchell,
Lawshea and Lochard, and remanded
for further proceedings. See: Smego

v. Mitchell, 723 F.3d 752 (7th Cir.
2013).
Following remand, Smego moved
to disqualify U.S. District Court Judge
Harold A. Baker from presiding over the
case. He pointed out that Judge Baker
had dismissed two of his lawsuits, both
with findings that an appeal would be in
bad faith. Both times, Smego appealed
and the Seventh Circuit remanded the
cases to the district court. Further, in one
of those cases, Judge Baker had stated
during a hearing that he wouldn’t believe
Smego “on a stack of Bibles.” The judge
also told the jurors after they ruled for the
defendants that they had “vindicated” him,
apparently referring to his prior dismissal
of the case.
Judge Baker granted Smego’s motion
and recused himself on January 31, 2014.
Smego subsequently settled his claims
against Lawshea and Dr. Lochard in May
2014, while his claims against Dr. Mitchell
are scheduled for trial on July 15, 2014.
Notably, Smego litigated this case pro se,
including on appeal. See: Smego v. Adams,
U.S.D.C. (C.D. Ill.), Case No. 3:08-cv03142-SEM-TSH.

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Prison Legal News

41
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July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 47 of 142

Judge May Resolve Exhaustion Issue; No Policy on
Grievance Non-decisions Means Remedies Unavailable
by David Reutter

T

he Third Circuit Court of Appeals
held on August 26, 2013 that a judge
may resolve factual disputes relevant to
the exhaustion of administrative remedies
without the participation of a jury. It also
held the district court had erred in finding
a failure to exhaust where a prisoner did
not receive a response to his grievances
and appeals were not required in such circumstances.
Robert L. Small, a pretrial detainee at
New Jersey’s Camden County Correctional
Facility (CCCF) and a paraplegic, filed a
civil rights complaint alleging excessive
force, denial of medical treatment, and
confiscation of his wheelchair and its replacement with one without leg rests. The
suit concerned events during two stints that
Small served at CCCF between June and
September 2004 and again between May
2005 and January 2008.
The lawsuit, originally filed in 2006,
was amended by pro bono counsel in
January 2008. The defendants moved for
summary judgment in late 2009, claiming
Small had failed to exhaust administrative
remedies under CCCF’s grievance policy.
The district court dismissed all but one
of Small’s claims following an evidentiary
hearing, and he appealed.
Small argued the Prison Litigation
Reform Act requires that a jury, not a judge,
determine factual disputes related to administrative exhaustion issues because Seventh
Amendment rights are implicated.
The Third Circuit disagreed, joining the
Second, Fifth, Seventh, Ninth and Eleventh
Circuits in concluding “that judges may
resolve factual disputes relevant to the
exhaustion issue without the participation
of a jury.”
The appellate court then turned to the
exhaustion issue itself. First, it found “Small
knew of, and was able to access, CCCF’s
grievance procedures.” Having concluded
that administrative remedies were available
to him, the Court of Appeals considered
whether he had substantially complied with
the jail’s grievance process.
Small argued he had complied by
submitting sick call requests and letters
of complaint, some of which were sent to
July 2014

people outside CCCF. The Third Circuit
held those efforts were not substantially
compliant with CCCF’s grievance procedure.
However, as to two grievances that
Small filed concerning incidents in 2005,
the Court of Appeals held the district court
had erred in finding Small did not comply
with CCCF’s grievance policy because he
failed to appeal.
It was undisputed that neither of the
grievances had resulted in a decision by
jail staff, and the appellate court said it
disagreed “that substantial compliance with
CCCF’s procedures requires appealing nondecisions.” Rather, the jail’s grievance policy
addressed “only the appeal of a decision with

which the inmate is not satisfied,” and did
not “mention what must be done or even
could be done by the inmate when a decision is never made.”
As CCCF’s grievance procedure “did
not contemplate an appeal from a non-decision ... the appeals process was unavailable”
to Small. The Third Circuit thus affirmed
in part and reversed and remanded as to
claims related to the two grievances that
did not result in decisions by jail staff. See:
Small v. Camden County, 728 F.3d 265 (3d
Cir. 2013).
Following remand, the district court
appointed counsel to represent Small on
February 21, 2014. This case, now eight
years old, remains pending.

New York Prisoner Awarded Sanctions
for Spoliation of Evidence; Case
Settles for $500,000
by Mark Wilson

O

n September 4, 2013, a New York
federal district court held that a jail
official was precluded from testifying in
a prisoner’s lawsuit about what she supposedly witnessed on surveillance video
footage that had been erased. The court
also granted the prisoner’s request for an
adverse inference jury instruction and attorney’s fees.
In May 2011, guards did not intervene
as New York City jail detainee Dwaine
Taylor was savagely beaten by several
gang members, including Batise Boyce,
in a courthouse holding cell. He wasn’t
removed from the cell for approximately
three hours.
When Taylor was finally taken to an
emergency room, he was diagnosed with
“jaw fractures on both ... sides of his face,”
an impacted tooth and another loose tooth.
During surgery the next day, doctors closed
the “jaw fractures with a metal plate and
screws,” removed one of his teeth and
wired his jaw shut. Taylor was hospitalized
for three days and then returned to the
infirmary at the Rikers Island jail, where
he remained for another month.

42

Within 15 days, officials prepared “an
investigation ‘package’ recommending that
Boyce be ‘re-arrested’ for assaulting” Taylor.
That package included copies of surveillance
video footage. One week later, Boyce was
indicted.
Taylor served notice of his intent to sue
and on July 31, 2012 filed a failure to protect
suit against jail officials in federal court. He
alleged that the assault was sanctioned by
guards “under a widespread practice called
‘the Program,’” which permitted gang members to attack other non-gang-associated
prisoners as a means of control.
“A ceiling-mounted, twenty-four
hour surveillance camera” captured events
in the holding cell during the assault. Assistant Deputy Warden Executive Officer
Jacqueline Brantley reviewed the entire
three hours of the video but saved just
eight minutes, and the remaining footage
was erased.
On June 7, 2013, Taylor moved for
spoliation of evidence sanctions. The defendants claimed they had no duty to preserve
the remaining three hours of video footage
and that Brantley should be allowed to
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 48 of 142

testify as to what the rest of the footage
depicted.
The district court disagreed, holding
that Brantley was precluded from testifying about what she observed on the deleted
surveillance footage. The court also granted
Taylor’s request for an adverse inference
jury instruction and an award of reasonable
attorney’s fees and costs in connection with

the motion for sanctions.
The case settled in October 2013, with
the defendants agreeing to pay $500,000
inclusive of fees and costs. Taylor was
represented by the Legal Aid Society and
the law firm of Emery Celli Brinckerhoff
& Abady, LLP. See: Taylor v. City of New
York, U.S.D.C. (S.D. NY), Case No. 1:12cv-05881-RPP.

Seventh Circuit Admits Prisoner is Right
but Denies Relief, Suggests Clemency

T

he Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), mandates
sentence enhancements for certain federal
defendants who commit crimes with firearms; those who have three or more prior
“violent felonies” or “serious” drug offenses
face a minimum 15-year prison term.
In some cases, however, prior state
convictions should not quality as “predicate”
offenses for the purpose of triggering an
ACCA sentence enhancement.
In April 2014, the Seventh Circuit
Court of Appeals issued a ruling in a
case involving federal prisoner Cody F.
Ellerman, who had challenged his ACCA
enhanced sentence for being a felon in possession of a firearm.
The appellate court noted that “Ellerman’s frustration with his inability to
obtain relief is understandable given that
he is correct, on the merits, that he never
should have been sentenced as an armed
career criminal.” The Court of Appeals
found that “His prior drug convictions
were all for selling marijuana in Kansas,
... and as level 3 felonies, did not subject
him to a statutory maximum of at least ten
years.... Accordingly, those convictions did
not qualify as ‘serious drug offenses’ under
18 U.S.C. § 924(e)(2)(A)(ii), and Ellerman
should not have been sentenced as an armed
career criminal.”
However, he had not filed a direct
appeal to his 2003 conviction, his postconviction appeals were untimely and the
Seventh Circuit wrote it was “not empowered to correct the sentencing error.”
The appellate court concluded: “Having
fallen victim to the procedural complexity of
collateral attacks, Ellerman is out of judicial
remedies. But he may consider asking the
President for a pardon or to commute his
sentence.” See: Ellerman v. Walton, Seventh
Circuit Court of Appeals, Case No. 14-501
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(April 21, 2014).
In cases raising similar issues, scores
of federal prisoners convicted in North
Carolina have been found legally innocent
in firearm possession cases, including cases
involving ACCA enhancements. Yet some
of those prisoners have been denied relief
and remain incarcerated, too. [See related
article in this issue of PLN, p. 48].
Ellerman informed PLN in June
2014 that, following the suggestion of the
Seventh Circuit, he had filed a petition for
commutation with the Office of the Pardon Attorney. That may be an even longer
shot than trying to obtain judicial relief,
however, considering President Obama’s
paltry track record of granting requests for
clemency. [See: PLN, Jan. 2013, p.32; May
2011, p.36].
In February 2014, the U.S. Department
of Justice announced an expanded clemency
initiative; the administration apparently has
taken the change seriously, replacing Pardon
Attorney Ronald Rodgers in April 2014.
The initiative may not help Ellerman’s
chances for commutation, though, as it only
applies to federal prisoners who have served
at least 10 years of their sentence, have no
significant prior convictions, and were convicted of a nonviolent crime that would have
resulted in a lower sentence had they been
sentenced today. The expanded clemency
initiative will be covered in greater detail
in a future issue of PLN.
Additional source: www.aclu.org

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Revised ed. By Dr. Melissa Palmer
See page 61 for more information.

43

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 49 of 142

I

North Carolina Repeals Racial Justice Law

n June 2013, Nort h Car ol ina
Governor Pat McCrory signed legislation
repealing the state’s Racial Justice Act of
2009 (the Act), a controversial law that supporters said was an effort to address racism
in death penalty cases. Opponents, however,
argued it merely clogged the legal system
and denied justice to victims of the state’s
154 prisoners sentenced to death.
“Nearly every person on death row,
regardless of race, has appealed their death
sentence under the Racial Justice Act,”
Governor McCrory said in a statement
that accompanied his repeal of the law.
“The state’s district attorneys are nearly
unanimous in their bipartisan conclusion
that the Racial Justice Act created a judicial
loophole to avoid the death penalty and not
a path to justice.”
The Act was passed following the exoneration of three North Carolina prisoners
who had been wrongfully convicted and
sentenced to death. All were black. [See,
e.g.: PLN, Aug. 2010, p.32].
The Racial Justice Act allowed condemned prisoners to challenge a death
sentence “sought or obtained on the basis
of race” if they could prove that race was a
factor in their prosecution, jury selection
or sentencing, and to petition to reduce
their sentence to life in prison without
the possibility of parole. According
to the North Carolina Department of
Public Safety, slightly more than half –
approximately 53% – of the state’s death
row prisoners are African-American. U.S.
Census Bureau statistics indicate that
blacks only comprise around 22% of the
state’s population.
When the Act was passed in 2009,
opponents contended it was a thinly-veiled
attempt by a Democratic governor and a
Democrat-controlled state legislature to
essentially do away with capital punishment. Due to various legal appeals, North
Carolina has not carried out an execution
since 2006. Republicans took control of
the legislature in 2010, and McCrory, a
Republican, was elected in 2012.
“It [the Act] tries to put a carte blanche
solution on the problem,” said Republican
state Rep. Tim Moore. “A white supremacist who murdered an African-American
could argue he was a victim of racism if
blacks were on the jury.”
Colon Willoughby, the district atJuly 2014

torney in Wake County, which surrounds
Raleigh, the state capital, said death row
prisoners can already petition to reduce
their sentences on the basis of racial bias
under a U.S. Supreme Court ruling. He said
the Racial Justice Act “came about and set
up new artificial obstacles and barriers that
were designed simply to put a moratorium
on the death penalty and not to promote
justice for anyone.” As a result, he argued,
the Act did nothing but clog North Carolina’s courts.
“The premise of it is that somehow,
because juries were white, that they discriminated against people, both white and
black,” he said. “The whole underlying
concept of it is ridiculous.”
“It’s incredibly sad,” countered Democratic state Rep. Rick Glazier, a long-time
supporter of the Act. “If you can’t face up to
your history and make sure it’s not repeated,
it lends itself to being repeated.”
Four prisoners have had their death
sentences reduced to life without parole
under the Act, all in 2012. In Cumberland
County, the court cited a study which
strongly suggested racial bias in jury selection. Researchers from Michigan State
University who studied North Carolina
cases between 1990 and 2010 found that
prosecutors removed black citizens from
juries in murder trials at more than twice
the rate of other races.
“We think that essentially this legislature is sweeping evidence of racial bias
under the rug, and it’s really disappointing,” said Sarah Preston, policy director
for the ACLU of North Carolina. “Instead
of looking at the cases that have passed as
evidence of the necessity for the law, they
have decided that it’s evidence that the law
should be repealed.”
Preston and other legal experts said
the question now is whether appeals still
pending under the now-repealed Act will
go forward or be dismissed. “Everyone who
has made a claim under the Racial Justice
Act is probably going to have to litigate
over whether or not they continue to have
a claim,” Preston said.
The North Carolina legislature had
been chipping away at the law ever since
Republican control in the state government
grew stronger. In 2012, the state House and
Senate overrode then-Democratic Governor Bev Perdue’s veto of legislation gutting

44

the Act, replacing it with an amended law
that made it more difficult for prisoners to
challenge their death sentences. Instead of
using race-related statistics from the entire
state or region, appeals under the Act were
limited to statistical data from the judicial
district where the crime occurred. The
amended law also specified that statistics
alone were not enough to prove racial bias,
and that the race of the victim could not
be considered.
The amended Act was written by
Republican House Majority Leader Paul
“Skip” Stam, who touted the measure as a
means of ending the lengthy halt to executions in North Carolina.
“With [the] override of the governor’s
veto, the end of the moratorium is in sight,”
Stam said following the July 2, 2012 vote
to amend the Racial Justice Act. “The basic
principal of justice is restored: individual
responsibility.”
In debate leading up to the vote, local
district attorneys and other supporters of
the death penalty said changes to the Act
would allow defendants to rely less on statistics that could mislead judges into finding
that racism played a role in convictions and
death sentences.
“I don’t trust statisticians or people who
came in after the fact to find some way to
get cold-blooded killers off of death row,”
said state Senator Thom Goolsby, who is
also a defense attorney.
“We should not allow racism to come
into our courtrooms,” countered state Senator Floyd McKissick during the veto debate.
“Race still impacts the minds and the hearts
and the consciences of many people who
serve on our juries.”
The Senate easily overrode then-Governor Perdue’s veto, but in the House the
vote was 72-48 – exactly the 60% majority
needed. After using her veto power, Perdue
said she supported the death penalty. “But it
has to be carried out fairly – free of prejudice,” she added.
In December 2012, following the legislative amendment to the Act, then-Superior
Court Judge Gregory A. Weeks reduced the
death sentences of three prisoners – two
black and one Native American – to life
without parole.
According to the American Bar Association, “Judge Weeks found that the
prisoners met their burdens of proof ...
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 50 of 142

through the use of statewide and countyspecific statistical evidence, as well as
non-statistical evidence. This ‘powerful evidence of race consciousness and race-based
decision making’ included hand-written
notes f rom the Cumberland County
prosecutor that noted the race of potential
jurors who were black, sometimes associating them with drug or alcohol abuse. The
prosecutor also repeatedly noted which
potential jurors lived in predominantly
black neighborhoods.... The prosecutor’s
notes did not indicate which potential jurors were white or lived in predominately
white neighborhoods. Judge Weeks’ ruling
also noted that prosecutors had a ‘cheat
sheet’ that instructed prosecutors how to
deflect charges of racial bias in jury strikes.
In one case, the prosecution struck black
jurors at twice the rate of white jurors; in
the other two cases, the rate was four times
as high.”
The court’s ruling was “based primarily
on the words and deeds of the prosecutors
involved in these cases,” Judge Weeks said.
“Despite protestations to the contrary, their
words, their deeds, speak volumes. During
presentation of evidence, the court finds

powerful and persuasive evidence of racial
consciousness, race-based decision making
in the writings of prosecutors long buried
in the case files and brought to light for the
first time during this hearing.”
Now that the Racial Justice Act has
been repealed, however, whether death
penalty cases in North Carolina will be
“free of prejudice” – the phrase used by
former Governor Perdue – is again a matter of debate.
On April 14, 2014, the North Carolina
Supreme Court agreed to hear appeals in
the cases of the four prisoners whose death
sentences were reduced to life without
parole under the Act – Marcus Robinson,
Tilmon Golphin, Christina Walters and
Quintel Augustine. Prosecutors are seeking
to have their death sentences reinstated.
The state Supreme Court is composed of
seven justices; one is black and the other
six are white. Not that race matters, of
course.
Sources: www.journalnow.com, Raleigh
News & Observer, www.cnn.com, The New
York Times, www.wral.com, www.americanbar.org, Associated Press, www.ncapd.org

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July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 51 of 142

S

Prison Closures Cause Economic Turmoil

hrinking state budgets across the
country are leading to prison closures
that in turn have a negative impact on communities that depend on the facilities as a
source of jobs and revenue. [See: PLN, June
2013, p.1; April 2009, p.1]. Small towns
in Kentucky, Georgia and New York are
among those facing recent adjustments to
this new economic reality, but some local
residents and lawmakers have fought back
with campaigns to keep the prisons open.
The city of Wheelwright, Kentucky was
hit hard by the closure of the 600-bed Otter
Creek Correctional Center, a prison owned
and operated by Corrections Corporation
of America (CCA). Officials said over 170
jobs were lost, although CCA pledged to
relocate as many employees as possible to
other facilities. The company said the June
2012 closing of Otter Creek was necessary
after Kentucky did not renew its contact to
house state prisoners at the facility.
“A lot of them [the employees] live
within the city and a lot of them live in the
community, you know,” said Andy Akers,
Wheelwright’s mayor. “We’re a tight knit
community around here.” Just before the
closure of the prison, Akers had predicted
a devastating impact on local businesses,
fearing the city’s economy would suffer.
“If you don’t have jobs you can’t spend
money at them. Money keeps rolling over
and over when you spend it,” he said. “I hate
to see it closing, but if there’s any way we
can help we’re trying.”
Kentucky also declined to renew its last
contract with CCA in June 2013, to house
prisoners at the company’s 826-bed Marion
Adjustment Center in St. Mary. State officials said the decision would save $1.5
to $2.5 million per year, and the prisoners
will be moved to other facilities. CCA vice
president Steve Owen said the non-renewal
of the contract, resulting in the closure of
the prison, was “disappointing” – though he
was likely referring to the economic impact
it would have on the company rather than
the local community.
Kentucky DOC spokesperson Jennifer
Brislin said the state would assist the 166
CCA employees whose jobs were eliminated due to the facility’s closure.
“We understand that this creates uncertainty for them,” she stated. “We’re mindful
that this creates an enormous challenge.”
However, “It’s just to help with applications
July 2014

and the like,” she clarified. “Obviously, that
doesn’t guarantee a job” elsewhere.
Additionally, CCA announced in
December 2013 that it would be closing
the North Georgia Detention Center in
Gainesville, Georgia due to a decline in
the number of immigration detainees held
at the facility. The closure will affect around
130 employees.
City Manager Kip Padgett said they
“will be exploring all options for future use
of the facility”; Gainesville had expected to
receive $825,000 in rent from the CCAoperated detention center for fiscal year
2014. The facility also had a $7 million
payroll and CCA spent around $295,000
with local businesses.
“It was news to us,” Gainesville Mayor
Pro-Tem Bob Hamrick said, in regard to
CCA’s unexpected announcement that it
was closing the detention center. “Obviously, it is a blow to our employment here.
But, hopefully, we can come up with some
way to not only absorb the employees that
will be laid off but also to find some use for
that facility.”
In New York, a community group
organized to prevent the state from closing the Chateaugay Correctional Facility
as scheduled on July 26, 2014, which will
eliminate up to 111 jobs with a $5.8 million annual payroll. The Save Chateaugay
Correctional Facility Task Force published
a 30-page booklet describing the impact
the closure will have on the community and
Franklin County.
For example, the booklet compares the
number of jobs lost in Chateaugay to the
equivalent of 6,000 jobs lost in Brooklyn.
It also notes that Chateaugay is the state’s
newest medium-security prison, and that
it will cost less to operate once the facility
starts using natural gas instead of fuel oil,
taking advantage of a pipeline project in
the county.
Chateaugay is one of four prisons
scheduled to close under a proposal announced by New York Governor Andrew
Cuomo in July 2013, but state lawmakers questioned whether the closures are
truly justified. State Senator Kathleen Marchione, who has been critical of the plan,
said “misplaced priorities” are to blame for
closing 15 New York correctional facilities
since 2011. She said she will fight to keep
open the Mt. McGregor prison, a medium-

46

security facility located in the legislative
district she represents.
“The closure of Mt. McGregor would
cost our community 320 public safety
positions and hurt the local economy,”
Marchione argued. “I disagree with the
administration’s closure proposal that would
impact the public safety professionals who
serve New York with honor and work in
some of the toughest, most stressful and
dangerous conditions imaginable.”
In addition to Chateaugay and Mt.
McGregor, the Cuomo administration has announced the closure of the Butler Correctional
Facility in Red Creek and Monterey Shock Facility in Beaver Dams. Closing the four prisons
will save an estimated $30 million.
Groups that represent prison employees have mounted opposition to the
closures, claiming that shutting down the
four facilities does nothing to alleviate the
condition of more than 10,000 state prisoners who are still double-bunked due to steps
taken by former Governor Mario Cuomo in
the 1990s to address prison overcrowding.
The New York State Correctional Officers & Police Benevolent Association
called the state’s decision to close the prisons
“political posturing,” “insulting” and “a show
of disrespect.” The association called on its
members to hold rallies, sign petitions and
contact their legislators to oppose the closures,
urging them to “Stand with your brothers
and sisters and stop the closures of more
prisons and mental health agencies! Enough
is enough! Your facility could be next!”
Local resolutions have been passed
by officials in the cities and counties affected by the prison closures, including the
towns of Wilton and Chateaugay as well as
Chemung, Franklin, Wayne and Saratoga
Counties.
Contending that the legislature was
blindsided by the Cuomo administration’s
plan, Senator Marchione and State Assemblyman James Tedisco both introduced
bills that would require approval by state
lawmakers before any prisons could be
closed. The legislation would also require
the state to announce closings at least a
year in advance.
Although the four facilities are expected to close as planned, the legislature
imposed a two-year moratorium – until July
2016 – on any further prison closures.
Officials with the state Department of
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 52 of 142

Corrections and Community Supervision
(DOCCS) said the crime rate in New York
has fallen 13% over the past decade, reducing the need for prison capacity. Further,
the state’s prison population has dropped
nearly 24% since 1999, from 71,600 to
around 54,100.
“As the inmate population has continued to decline, prisons that are no
longer needed can close,” stated DOCCS
Commissioner Anthony J. Annucci. “By
pursuing policies that are tough, smart and
fair, we can maintain or improve public
safety on the outside, so there is less need
to put offenders on the inside, delivering
great savings to New York.”
Meanwhile, prison officials pledged to
do what they can to soften the impact on
state employees. “At the time of the closure

T

Sources: www.wkyt.com, www.floydcountytimes.com, www.pressrepublican.com, www.
legislativegazette.com, www.gainesvilletimes.
com, www.abc12.com, www.mlive.com,
www.corrections.com, Associated Press, www.
kentucky.com, Atlanta Journal-Constitution,
www.nyscopba.org

Administrators Fired at
Privately-Run Texas Jail

he warden and head of security
at the Liberty County Jail (LCJ) in
Liberty, Texas have been fired in the wake
of allegations that the chief of security
sexually assaulted a female prisoner at the
facility. The 285-bed jail is operated by the
New Jersey-based Community Education
Centers (CEC), a for-profit company.
Warden Timothy New and Chief of
Security Kenneth Reid Nunn were fired in
September 2012, just days after the county
received a notice of claim from attorney Paul
Houston LaValle on behalf of former LCJ
prisoner Brandy Nichole O’Brien. O’Brien
had been incarcerated at LCJ for failing to
make timely child support payments.
According to the notice of claim,
O’Brien “was repeatedly subjected to assault and battery, sexual assault, deviant
sexual assault, humiliation, degradation and
intentional infliction of emotional distress
at the hands of Chief of Security Kenneth
Reid Nunn and others” while incarcerated
at the privately-run lock-up.
“Further, when Chief Nunn was repeatedly caught violating my client’s rights by other
members of the jail staff or sheriff ’s office, my
client was threatened, coerced and coached on
the statements she gave to investigators by Warden Tim New and others,” LaValle wrote.
In a statement announcing the terminations of New and Nunn, CEC said
it was working with law enforcement to
investigate staff at the jail.
Prison Legal News

announcement there were 673 employees at
the four facilities,” according to a DOCCS
statement. “As of February 3, 2014, there
were 386 staff remaining, and DOCCS
personnel have been holding another round
of meetings with those staff members to
assist in planning their transitions.”
State officials noted that since the
closings were announced there has been “a
gradual transition of staff to other prisons,
other state agencies or retirement.”

“The allegations, which have just come
to the company’s attention, apparently
began approximately a year ago when, as a
weekender, [O’Brien] encountered the jail’s
former employees and began cooperating
with law enforcement,” said CEC representative Christopher Creeder.
Liberty County has a $4 million annual contract with CEC to operate the
jail. CEC manages eight secure facilities
in Ohio, Pennsylvania and Texas, and “provides a full range of therapeutic residential
and non-residential reentry services with a
documented record of reducing recidivism,”
according to the company’s website.
Sources: www.yourhoustonnews.com, www.
cecintl.com, www.libertytxsheriff.com

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47

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 53 of 142

North Carolina: Hundreds of Federal Prisoners
Legally Innocent, Some Still Incarcerated
by Derek Gilna

F

ollowing a 2011 federal appellate
court ruling, the U.S. Department of
Justice (DOJ) initially tried to delay the release of federal prisoners who were wrongly
convicted in North Carolina. The government later announced that it would halt
such tactics, but has continued to oppose
challenges filed by some offenders who are
legally innocent.
The DOJ’s actions followed a review
of prosecutions in three federal courts in
North Carolina. DOJ spokesman Wyn
Hornbuckle said “many more” cases could
surface when all of the state’s federal court
cases are examined.
The prisoners were convicted of possessing firearms in what the Fourth Circuit
Court of Appeals held was a misapplication
of the sentencing criteria, a circumstance
unique to North Carolina due to the state’s
system of “structured sentencing.” Adopted
by the state legislature in 1993, the system
mandates that the maximum prison term for
any given crime is based on the offender’s
criminal record. As a result, sentences for
even minor crimes can extend for years if a
defendant has numerous prior offenses.
Federal law provides that anyone
convicted of a crime punishable by more
than a year in prison is considered a felon,
and thereby prohibited from possessing a
firearm or ammunition. However, that provision of federal law, as imposed by North
Carolina federal courts, conflicted with the
state’s structured sentencing.
For example, an offender convicted of a
minor crime in a North Carolina state court
– writing a bad check, for example – would be
considered a felon under federal law if his or
her prior record was serious enough to warrant
a prison sentence longer than a year. Federal
courts proceeded under the notion that if
one person convicted of writing a bad check
was considered a felon, then all offenders
convicted of writing bad checks were felons
... even if a defendant’s record warranted a
sentence of less than one year under the state’s
structured sentencing system. Consequently,
offenders found in possession of a firearm
were charged with violating federal law even
if their prior state offenses should not have
been considered felonies.
July 2014

The Fourth Circuit held in August
2011, in United States v. Simmons, 649 F.3d
237 (4th Cir. 2011) (en banc), that federal
courts had been misapplying the law. Only
those offenders who could have actually
faced a prison sentence of longer than a
year, the appellate court held, should be
considered felons under federal law. As a
result, scores of federal defendants should
not have been prosecuted for being felons in
possession of a firearm, because they didn’t
meet the legal definition of “felon” at the
time they were charged.
The ruling in Simmons meant that
about half of the convictions in North
Carolina state courts over the past decade
should no longer be considered felonies
under federal law. A 2012 investigation by
USA Today concluded that “none of them
[prisoners serving time for firearm possession] had criminal records serious enough to
make them felons under federal law.”
USA Today’s investigation examined
firearm possession convictions in western
North Carolina between 2005 and 2011, and
“was limited to people who had been convicted only of gun possession and included
only those cases in which federal prosecutors
had specifically identified the prior offense
that made possession a crime.”
In the wake of Simmons, the DOJ
initially did little to address the problem
of offenders serving federal prison terms
despite being legally innocent. In fact, the
Department of Justice did not try to identify
or notify the affected prisoners, and even
argued in individual prisoners’ cases that
they should not be released.
DOJ officials claimed it wasn’t their
responsibility to inform prisoners who were
serving sentences for what the Fourth Circuit had determined was no longer a crime.
While federal prosecutors conceded the prisoners were innocent, they maintained that
offenders affected by Simmons had to follow
federal court rules and file motions challenging their convictions and sentences.
“We can’t be outcome driven,” said
Anne Tompkins, the U.S. Attorney in
Charlotte. “We’ve got to make sure we follow the law, and people should want us to do
that.” She added that her office was “looking

48

diligently for ways, within the confines of
the law, to recommend relief for defendants
who are legally innocent.”
That effort apparently was not a high
priority, however. Ripley Rand, the U.S.
Attorney in Greensboro who conducted
the DOJ’s review of cases affected by Simmons, conceded that more than a third of the
firearm cases prosecuted by his office might
be called into question. “We’re going to be
addressing this for a while,” he remarked.
In fact, the 20 prosecutors in his office were
so inundated by prisoners challenging their
sentences that other prosecutions were
placed on hold. “It’s definitely been a huge
burden,” Rand said.
“No one wants anyone to spend time
in jail who should not be there,” noted one
prosecutor in Raleigh, but convictions that
are already final “are in a totally different
posture and require us to follow the existing
statutory habeas law.” Rand added that he
was “not aware of any procedural mechanism by which [the affected prisoners] can
be afforded relief.”
Defense attorneys disagreed, saying federal prosecutors should assume a greater role
in identifying cases for review. “We’re doing
it with our hands tied,” said Eric Placke, a
Greensboro public defender. “I appreciate
the compelling considerations they have to
deal with. But I do think in cases of actual innocence that it would be nice, to say the least,
if they would be a little more proactive.” He
said his office was handicapped by limited
access to records in closed cases.
Legal experts agreed that the procedural approach to such cases was not an
easy one. Saying “I’m innocent” may not
be sufficient for a successful challenge,
according to Nancy King, a law professor
at Vanderbilt University. Nevertheless, she
noted, “innocent people should be able to
get out of prison.”
Following Simmons, federal judges have
freed numerous prisoners and removed
others from post-release supervision. Some
had been incarcerated for up to eight years.
Since Simmons was decided, it has been
cited in over 200 Fourth Circuit decisions
and more than 960 rulings in North Carolina district courts as of July 1, 2014.
Prison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 54 of 142

One of the first federal prisoners to
have his conviction vacated was Terrell
McCullum. Prosecutors had opposed his
release. “At most, [McCullum] has become
legally innocent of the charges against
him,” federal prosecutors stated in an April
2012 court filing, arguing that he still had
a criminal record and possessed a gun, and
should not be freed.
In August 2012, U.S. District Court
Judge James Fox rejected the prosecution’s
arguments and reversed McCullum’s conviction “in the interests of justice,” even
though he had already completed his sentence and been released a month earlier.
“After careful consideration, the Department of Justice has decided to take a
litigating position designed to accelerate
relief for defendants in these cases who, by
virtue of a subsequent court decision, are
no longer guilty of a federal crime,” DOJ
spokeswoman Adora Andy said shortly
before the court ruled in McCullum’s case.
“We are working with the court, the probation office and the federal public defenders
to ensure that these matters are addressed as
effectively and quickly as possible.”
Another federal prisoner, Marion
Howard, was freed on December 5, 2012
after appealing to the court in a letter to
“please rule on my case before the holidays”
so he could be home with his family. Many
other prisoners have since been released as
a result of the Simmons decision, and cases
are still working their way through the
court system.
On May 23, 2014, for example, U.S.

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District Court Judge Martin Reidinger ruled
on a pro se habeas petition filed by federal
prisoner Marvin Barnette. “The Government
concedes that the Petitioner’s motion has
merit, and although the motion was untimely
presented, the Government agrees to waive
the defense of the statute of limitations to
Petitioner’s claims,” the court said.
“Petitioner’s sentence was enhanced
based on his prior convictions for breaking
and entering.... As the Government concedes, and as reflected by the state-court
judgments relevant to these convictions,
these offenses were Class H felonies, and at
the time Petitioner was convicted of these
offenses, Petitioner was a prior record level
II,” Judge Reidinger wrote. “As such, the
maximum sentence Petitioner could have
received for either of these offenses was
10 months. Because Petitioner could not
have received a sentence of more than one
year in prison based on these convictions
under North Carolina law, Simmons dictates
that these convictions no longer qualify as
‘violent felonies’ for purposes of the ACCA
[Armed Career Criminal Act].”
Judge Reidinger vacated Barnette’s
sentence and granted a resentencing hearing. See: Barnette v. United States, U.S.D.C.
(W.D. NC), Case No. 3:08-cr-00124MR-1; 2014 U.S. Dist. LEXIS 71118.
On April 8, 2014, the Fourth Circuit
held that a defendant sentenced as a career offender before Simmons was decided,
but who could not be designated a career
offender after Simmons, constituted a “fundamental miscarriage of justice” that warranted

equitable tolling of the statute of limitations
and habeas relief. See: Whiteside v. United
States, 748 F.3d 541 (4th Cir. 2014).
However, others have not been as
fortunate. Federal prisoner Clyde Dial, Jr.
filed a motion to vacate under 28 U.S.C.
§ 2255 challenging his guilty plea to two
charges with an Armed Career Criminal
Act enhancement, arguing that “the convictions used to apply the enhancement no
longer qualify as felonies” after Simmons. He
had received a 176-month prison sentence.
However, as part of his plea agreement Dial
waived his right to challenge his conviction
or sentence under 28 U.S.C. § 2255.
The DOJ opposed Dial’s motion and
sought to enforce the terms of the plea
agreement. The district court agreed with
the government, finding in a June 18, 2014
order that Dial had knowingly waived his
right to seek relief – even though he was
legally innocent with respect to the ACCA
enhancement. See: Dial v. United States,
U.S.D.C. (E.D. NC), Case No. 7:02-cr00090-F1; 2014 U.S. Dist. LEXIS 83017.
The ACLU of North Carolina estimated in 2012 that more than 3,000 federal
prisoners may be entitled to relief as a result
of Simmons, including reduced sentences
or release from prison, because they are
legally innocent. In some cases, though,
such innocence means little to federal
prosecutors.

Sources: USA Today, www.whiteandhearne.
com, www.reason.com, Associated Press,
www.pagepate.com

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Prison Legal News

49

July 2014

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 55 of 142

Do Faith-Based Prisons Work?
by Alexander Volokh

T

here are a lot of faith-based prison
programs out there. As of 2005, 19
states and the federal government had some
sort of residential faith-based program,
aimed at rehabilitating participating prisoners by teaching them subjects like “ethical
decision-making, anger management, victim restitution” and substance abuse in
conjunction with religious principles.
One of them – the InnerChange
Freedom Initiative program in Iowa – was
struck down on Establishment Clause
grounds in 2006, but various faith-based
prison programs still exist, including
InnerChange programs in other states.
InnerChange programs, which are explicitly motivated by Christian and Biblical
principles, are probably more vulnerable to
constitutional challenges; programs that
are more interfaith and have less explicitly
religious content, like Florida’s Faith- and
Character-Based Institutions or the federal
Life Connections Program, are probably
less so.
Faith-based prisons continue to be
promoted as promising avenues for reform,
chiefly on the grounds that they improve
prison discipline and reduce recidivism.
Unfortunately – even if we ignore the constitutional issues – most of the empirical
studies of the effectiveness of faith-based
prisons have serious methodological problems and, to the extent they find any positive
effect of faith-based prisons, can’t be taken
at face value. Those few empirical studies
that approach methodological validity
either fail to show that faith-based prisons
reduce recidivism, or provide weak evidence
in favor of them.

* * *
The most serious problem with studies
of the effectiveness of faith-based prisons is
the self-selection problem. Prisoners obviously choose faith-based prisons voluntarily.
And the factors that would make a prisoner
choose a faith-based prison may also make
him less likely to commit crimes in the
future. (One such factor might be religiosity itself ). Also, a prisoner who takes the
trouble to choose a rehabilitative program
may be more motivated to change, and this
may make him more likely to change.
As a result, faith-based programs
July 2014

might appear to have better results because
its participants have lower recidivism rates
– but this might have nothing to do with
whether the programs actually “work.” A
program with zero effect that successfully
attracts better prisoners will appear to have
better results – in fact, even a program that’s
slightly harmful (i.e., has a negative “treatment effect”) might appear to have better
results, as long as it attracts prisoners who
are sufficiently better (i.e., has a positive
“selection effect”). If the positive selection
effect is greater than the negative treatment
effect, the program might fool naïve observers into thinking it’s a success.
Therefore, what we certainly don’t
want to do is just compare the results of
participants in a faith-based program with
those of non-participants. (Nonetheless,
some studies do this!). This presents the
self-selection effect in its most naked form
– and the results of such a study can’t be
taken seriously.
Other studies are slightly more sophisticated. They compare the group of
participants with a matched group of
non-participants, where non-participants
are matched to participants based on
various observable factors like race, age,
criminal history and the like. Thus, suppose there are 100 participants and 1,000
non-participants. As stated above, we
shouldn’t just compare the 100 with the
1,000 – the 100 are systematically different
from the 1,000, because the 100 chose to
participate and the 1,000 didn’t. The 100
have some sort of motivation that sets
them apart from everyone else, even apart
from any effectiveness of the program.
Instead, what these studies do is take the
1,000 non-participants and identify 100
who “look like” the 100 participants – each
of the 100 non-participants is as close as
possible to one of the participants in race,
sex, age, education and other observable
factors. The hope is that comparing the
100 participants with the 100 matched
non-participants will make for a more
valid comparison.
Alas, this hope is probably unjustified.
Even if you could perfectly match the 100
participants with 100 non-participants who
looked very similar, you can only match
prisoners based on observable factors like

50

race, sex, age and so on. But one of the most
important factors – motivation to change
– is unobservable. So, in my view, these
studies, though somewhat more sophisticated, still aren’t good enough to overcome
the self-selection problem.
The third type of study uses a more
sophisticated statistical technique called
“propensity score” matching. Participants
are matched to participants not based on
observable factors directly, but based on
their propensity score, that is, their estimated probability of participating in the
program. But these propensity scores are
generated using observable characteristics
like race, sex, age, education and so on. Motivation remains unobservable, and that’s
still one of the most important factors in
whether a released prisoner reoffends. So
propensity scores still don’t solve the selfselection problem.
So far, we’ve seen three types of studies – naïve comparisons of participants to
non-participants, matching based on some
observable characteristics, and matching
based on propensity scores. None of these
three types of studies are credible because
they don’t account for self-selection. Prisoners who are motivated enough to choose to
participate in a rehabilitative program are
already less likely to reoffend. So any study
that compares voluntary participants and
voluntary non-participants may just be
picking up the effect of being a good person,
not the effect of the program itself. (Some
of these studies are subject to even further
sources of bias. For instance, in addition to
self-selection in the decision whether and
how intensively to participate, there can be
selection by the program staff in the decision of whom to admit or whom to kick out,
as well as “success bias” in the consideration
only of those who completed the program
without dropping out).
In my view, the only credible studies
so far fall into a fourth category – those
that compare (voluntary) participants in
faith-based programs with people who
volunteered for the program but were
rejected.
Finally, a class of statistically valid
studies! Unfortunately, the results from
these studies generally aren’t good. In
a 2003 evaluation of the Texas InnerPrison Legal News

Case 2:15-cv-02245-BSB Document 1-3 Filed 11/06/15 Page 56 of 142

Change program, there was no significant
difference between how well accepted
and rejected volunteers did in terms of
two-year arrest or reincarceration rates.
Same goes for a 2003 evaluation of the
Biblical Correctives to Thinking Errors
program at Indiana’s Putnamville Correctional Facility, a 2004 evaluation of the
Kairos Horizon Communities in Prison
program at Florida’s Tomoka Correctional Institution and a 2009 evaluation of
Florida’s dorm-based “faith and character”
programs.
I’ve looked at two evaluations of an
after-care program for ex-prisoners, the
Detroit Transition of Prisoners program.
This program may confer some benefits,
though it’s hard to say because the results
aren’t reported in a form that would make
this easy to determine. But even if this program is successful, we still have to grapple
with the “resources problem”: The studies
compare participation in the program either
with the alternative of no program at all
or with the “business as usual” alternative
of whatever other programs happen to be
available, rather than with participation
in a comparably funded secular program.

Thus, even if a religious program is better
than nothing at all, it could be because of
the greater access to treatment resources
(for instance, mentors and counselors) and
not because of the religious content of the
program.

* * *
In the end, this article has bad news
and good news.
The bad news, as explained above, is
that most studies are low-quality and the
results of the higher-quality studies aren’t
promising. There seems to be little empirical
reason to believe that faith-based prisons
work.
The good news is that there’s also no
proof that they don’t work. The absence of
statistically valid or statistically significant
findings isn’t the same as the presence
of negative findings. And while the selfselection problem is real and important, the
resources problem may not even be a problem at all: maybe the “zero alternative” or
the “business as usual” alternatives really are
proper empirical baselines, since they reflect
both reality and, perhaps, political feasibility. So the picture isn’t uniformly bleak;

there are some programs that seem to show
some statistically significant effects, even if
they’re weak and even if we’re not sure how
well they compare to the hypothetical effects of a hypothetical, comparably funded
secular program.
Perhaps future research will shed light
on these questions. In the meantime, clearly
some groups want to have faith-based prisons, some prisoners want to attend them
and they probably do little if any harm. If
some programs don’t work, this is an indication to future practitioners that something
needs to be changed; if some programs
work, maybe they can be replicated elsewhere. Better results won’t emerge unless
they’re allowed to emerge by a process of
experimentation.
Alexander Volokh blogs at the Volokh Conspiracy (www.washingtonpost.com/news/
volokh-conspiracy) and is an Associate Professor of Law at the Emory University School
of Law; this is a synopsis of his research on
faith-based prisons, which was published in
the Alabama Law Review (Vol. 63, 2011).
He provided thi