EXHIBIT A 

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

DEPARTMENT 

OF 

CORRECTIONS 

CHAPTER: 900 OPR: 

y INMATE PROGRAMS 

AND SERVICES 

OPS 

ADC 

DEPARTMENT ORDER: 914 SUPERSEDES: 

DEPARTMENT ORDER MANUAL 

914,01 

914,02 

914,03 

914,04 

914,05 

914,08 

914,07 

914,08 

914,09 

914,10 

INMATE MAIL 

INMATE MAIL 

TABLE OF CONTENTS 

PROCEDURES 

DO 91415/11081 

EFFECTIVE DATE: 

FEBRUARY 26, 2010 

REPLACEMENT PAGE 

REVISION DATE: 

JUNE 8, 2012 

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

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

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

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

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

PUBLICATIONS '" """ "" '" '" '" "" '" '" '" ""'" '" '" '" ""'" '" '" """ "" '" '" '" "" '" 1 0 

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

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

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

THE OFFICE OF PUBliCATION REVIEW """ "" """ """ "" """ """ "" """ """ "" 16 

IMPLEMENTATION.". '" "" '" '" '" """'"'''' '" '" '" ""'" '" '" '" ""'" '" '" """ "" '" '" '" ""'" 17 

DEFINITIONS. ""'" '" '" "" '" '" '" """ '" "" '" '" '" ""'" '" '" '" ""'" '" '" """ "" '" '" '" '" "" 16 

AUTHORITY "'"'''' '" '" '''' '" '" '" '''''' '" '''' '" '" '" '"'''' '" '" '" '"'''' '" '" '''''' '''' '" '" '" '" '''' 20 

ATTACHMENT 

FEllftUARY 28, 2010 914- PAi3E I 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 2 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 

1.1 

MAIL GENERAL 

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 

1.1.2 

1.1.3 

1.1.4 

1.1.5 

1.1.6 

Released offenders currently under community supervision by the Department, 

excluding members of the inmate's immediate family as defined in this 

Department Order. 

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 Inter-relational mail shall be approved as outlined in section g 14.04 

of this Department Order. 

Current or former Department/Contract Bed employees or current or former 

Department volunteers, without the Complex Warden's prior written approval. 

Minors that are not the inmate's natural or adopted child or minors that do not 

have parents' or guardians' prior written approval. 

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. 

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 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. 

1.2 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. 

INMATE MAIL JUNE 8, 2012 914 - PAGE 1 

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

1.2.1 

1.2.2 

1.2.3 

1.2.4 

1.2.5 

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. 

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. 

Postage stamps shall not be used as negotiable instruments or legal tender as 

payment for materials ordered from private vendors. 

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

or services. 

Inmates are subject to the limits for possession of postage stamps as outlined in 

Attachment A of Department Order #909, Inmate Property. 

1.3 Mail room staff shall maintain: 

914.02 

1.1 

INMATE MAIL 

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: 

1.3.2.1 

1.3.2.2 

1.3.2.3 

1.3.2.4 

1.3.2.5 

An itemized list of all incoming and outgoing packages, including 

the name and ADC number of each inmate who sends or receives a 

package. 

The name and address of each sender and addressee for each 

package. 

A detailed description of the contents of each. For incoming 

publications, this includes the name and dated information for each 

publication. 

The amount of postage or the amount paid to the contract carrier 

for each outgoing package. 

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. 

1.3.3 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 

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 914 - PAGE 2 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 4 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

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: 

1.4.1 Mail that arrives without an inmate ADC number shall be stamped "Return to 

Sender,' and returned. 

1.4.2 

1.4.3 

1.4.4 

1.4.5 

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. 

When possible, First Class mail belonging to an inmate who is temporarily 

confined at a hospital or local county jail shall be forwarded. 

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. 

All mail received for inmates on escape status shall be forwarded to the Criminal 

Investigation Unit (CIU) for evaluation and processing. 

1 .5 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. 

INMATE MAIL 

1.5.1 Upon inspection, incoming mail shall be withheld from an inmate if it meets one 

or more of the following criteria: 

1.5.1.1 

1.5.1.2 

1.5.1.3 

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

of the institution. 

Substantially hinders efforts to treat or rehabilitate the inmate; 

however, legal mail will not be withheld for this purpose. 

Threatens the intended recipient. 

FEBRUARY 26, 2010 914 - PAGE 3 

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

1.5.2 

1.5.3 

1.5.4 

1.5.1.4 

1.5.1.5 

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. 

Has content written in code or that contains hidden messages. 

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. 

When an incoming envelope is stamped "Return to Sender" staff shall open and 

inspect it for contraband before returning it to the inmate. 

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. 

1 .6 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 

1.6.2 

1.6.3 

1.6.4 

1.6.5 

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)." 

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. 

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. 

The Business Office shall notify CIU of any received Internal Revenue Service 

(IRS) checks. CIU may notify the IRS if deemed appropriate. 

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. 

1.7 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. 

INMATE MAIL FEBRUARY 26, 2010 914 - PAGE 4 

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

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 

1.7.1.2 

1.7.1.3 

1.7.1.4 

1.7.1.5 

1.7.1.6 

1.7.1.7 

1.7.1.8 

1.7.1.9 

1.7.1.10 

1.7.1.11 

1.7.1.12 

1.7.1.13 

1.7.1.14 

1.7.1.15 

1.7.1.16 

1.7.1.17 

1.7.1.18 

INMATE MAIL 

Used or unused postage stamps. 

Stickers, labels, address labels or decorative stamps. 

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

Photos of other inmates. 

Unknown foreign substances and/or powders. 

Oils, perfumes, incense or personal property items. 

Lottery tickets or games of chance. 

Tax forms. 

Battery operated greeting cards, or greeting cards larger than 8 %" 

by 11." 

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

Unused postcards. 

Bookmarks. 

Inspirational cards or medals. 

Candy, gum, or any food items. 

Art, crafts and hobby supplies. 

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. 

Calendars. 

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 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 914 - PAGE 5 

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

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 will be delivered provided the 

mail/publication content meets policy guidelines and: 

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 914 - PAGE 6 

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

914.03 

1.1 

1.2 

1.3 

1.4 

1.5 

AUTHORIZATION OF COMPACT DISCS AND/OR CASSETTE TAPES 

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. 

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. 

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. 

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. 

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 

1.5.3 

1.5.4 

The inmate shall show in advance that he/she is in possession of an operational 

and authorized appliance with a cassette player. 

Correspondence tapes shall not contain sexually explicit language or any other 

unauthorized content that would be in violation of this Department Order. 

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 914 - PAGE 7 

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

914.04 

1.1 

1.2 

INTER-RELATIONAL MAIL 

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. 

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

1.2.1 

1.2.2 

Provide the child's birth certificate, and 

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: 

1.9.1 

1.9.2 

1.9.3 

1.9.4 

1.9.5 

Complete a Request to Communicate with an Incarcerated Family Member, Form 

915-3, as outlined in Department Order #915, Inmate Phone Calls. 

Verify that an immediate family relationship exists between the inmates. 

Forward the application to the Warden or Deputy Warden for 

approval/disapproval. 

Forward copies of the approved applications to the respective Mail/Property 

rooms at the requesting and receiving institution. 

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

AIMS. 

INMATE MAIL FEBRUARY 26, 2010 914 - PAGE 8 

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

914.05 

1.1 

OUTGOING MAIL 

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 

1.1.2 

1.1.3 

1.1.4 

1.1.5 

Institution mailroom staff shall return mail lacking this information to the sending 

inmate, if known, for a correction. 

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. 

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 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. 

SECTION DELETED 

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. 

1.2 Staff who processes outgoing inmate mail may inspect it for contraband, but shall not 

read or censor mail being sent to: 

1.2.1 

1.2.2 

1.2.3 

1.2.4 

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

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. 

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

Elected or appointed public officials. 

1.3 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. 

1.4 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. 

INMATE MAIL APRIL 28, 2011 914 - PAGE 9 

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

914.06 

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 

1.5.2 

1.5.3 

1.5.4 

1.5.5 

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

violence. 

Information that involves escape plans and/or activities that violate Department 

or institution regulations or written instructions. 

Threatens the intended recipient. 

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. 

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 

1.7.2 

1.7.3 

Retain the censored portion of any outgoing mail during any investigation, and 

then return it to the sender. 

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. 

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 

1.1 

1.2 

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. 

PUBLICATIONS 

All publications are subject to screening and review and shall meet standards and 

guidelines as detailed in this Department Order. 

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 914 - PAGE 10 

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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 

1.3.2 

Secondary markets (also known as Third Party Vendors) such as e-Bay and 

Amazon Marketplace are not authorized retailers or distributors. 

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 

1.6.2 

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

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 914-PAGE 11 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 13 of 90
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: 

1.2.1 

1.2.2 

Publications that contain photographs, drawings, cartoons, animations, pictorials 

or other facsimiles that show nudity of either gender. (For Nudity see 

Definitions.) 

Publications that contain any of the following acts and behaviors either visually, 

written or in audio (non-lyric) form: 

1.2.2.1 

1.2.2.2 

1.2.2.3 

1.2.2.4 

1.2.2.5 

1.2.2.6 

Physical contact by another person with a person's unclothed 

genitals, pubic area, buttocks or, if such person is a female, 

breast. 

Sadomasochistic abuse. 

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

or sodomy. 

Masturbation, excretory functions, and lewd exhibition of the 

genitals. 

Incestuous sexual activity. 

Sexual activity involving an unwilling participant, or a participant 

who is the subject of coercion, or any sexual activity involving 

children. 

1.3 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. 

INMATE MAIL FEBRUARY 24, 2011 914 - PAGE 12 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 14 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

914.08 

1.4 Personal letters are not subject to Publication Review. 

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

1.1 

1.5.1 

1.5.2 

1.5.3 

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. 

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. 

1.5.2.1 

1.5.2.2 

1.5.2.3 

The Office of Publication Review is considered the second level 

review for sexually explicit material. 

SECTION DELETED 

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. 

Prohibited publications include, but are not limited to: 

1.1.1 

1.1.2 

1.1.3 

Depictions or descriptions that incite, aid, or abet riots, work stoppages, or 

means of resistance. 

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

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. 

INMATE MAIL FEBRUARY 24, 2011 914 - PAGE 13 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 15 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

1.1.4 

1.1.5 

1.1.6 

1.1.7 

1.1.8 

1.1.9 

1.1.10 

1.1.11 

1.1.12 

1.1.13 

1.1.14 

1.1.15 

1.1.16 

1.1.17 

INMATE MAIL 

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. 

Depictions, descriptions, instructions on the use of hands, feet, or head as 

weapons, fighting weapons and techniques, self-defense and martial arts. 

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. 

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. 

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. 

Detailed illustrations, explanations, and/or descriptions of computers/ 

communications systems or electronics. 

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

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.) 

Content that contains survival skills that could be used as an aid in eluding 

capture following an escape. 

Gambling strategies and other gambling-related instructional material. 

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. 

Cipher or code or instruct on the usage of code. 

Pictures, depictions, illustrations or text that promotes acts of violence, that 

cause or intends to cause serious criminal injury or harm. 

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 914 - PAGE 14 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 16 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

1.1.18 

1.1.19 

1.1.20 

1.1.21 

1.1.22 

1.1.23 

1.1.24 

1.1.25 

1.1.26 

1.1.27 

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. 

Intelligence gathering instruction and/or investigative techniques that may 

impede the Department's investigative ability. 

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. 

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

1.1.21.1 

1.1.21.2 

1.1.21.3 

Harming of oneself or others; 

Impacting clinical test results; 

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. 

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

Crime scene/autopsy photos. 

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. 

Canine search procedures, techniques and scent discrimination. 

Instruction on the making of incense. 

Depictions, descriptions or content that instructs on the sale, manufacture, 

concealment, or the construction of tools. 

2.1 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. 

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

INMATE MAIL FEBRUARY 26, 2010 914 - PAGE 15 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 17 of 90
CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

914.09 

1.1 

914.10 

1.1 

INMATE MAIL 

PUBLICATION REVIEW PROCESS 

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 

The Office of Publication Review shall: 

1.1.1 

1.1.2 

1.1.3 

Review, process, document and track publications forwarded by the 

Complex/Stand-Alone Unit Publication Review staff and determine whether to 

allow or exclude them. 

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

item. 

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 

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CHAPTER: 900 - INMATE PROGRAMS AND SERVICES 

DEPARTMENT ORDER: 914 - INMATE MAIL 

1.1.4 

1.1.5 

1.1.6 

1.1.7 

1.1.8 

1.1.9 

Send completed Office of Publication Review - Notice of Result form to the 

Complex/Stand-Alone Unit Publication Review staff for distribution. 

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. 

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. 

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. 

Notify all Wardens and Complex/Stand-Alone Unit Level Publication Review staff 

of pending and completed second reviews. 

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. 

1.1.9.1 

1.1.9.2 

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. 

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. 

1.1.10 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-ROS Document 1-1 Filed 11/06/15 Page 19 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-ROS Document 1-1 Filed 11/06/15 Page 20 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 

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THIS PAGE BLANK 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 22 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-ROS Document 1-1 Filed 11/06/15 Page 23 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} 

ATTACHMENT 

Attachment A - Obscene Material 

FORMS LIST 

914-6, Office of Publication Review - Notices of Result 

Charles L. Ryan 

Director 

914-7, Complex Level Publications Review/Sexually Explicit Material 

AUTHORITY 

A.R.S. 12-941 et seq, Disposal of Certain Unclaimed Property in Custody of State, City or Town Officers. 

A.R.S. 13-2501, Definitions of Contraband. 

A.R.S. 13-2505, Promoting Prison Contraband. 

A.R.S. 13-3309, Seizure; Exception; Definition. 

A.R.S. 13-3501, Obscene Material. 

A.R.S. 13-3503, Seizure of Obscene Things; Disposition. 

A.R.S. 13-4301 et seq, Forfeiture. 

A.R.S. 13-4411.01, Notice of Right to Request Not to Receive Inmate Mail. 

A.R.S. 13-4429, Return of Victim's Property; Release of Evidence. 

A.R.S. 31-231, Unauthorized Communications. 

A.R.S. 31-235, Prisoner correspondence: definitions. 

INMATE MAIL FEBRUARY 24, 2011 914 - PAGE 20 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 24 of 90
ATTACHMENT A 

DEPARTMENT ORDER 914 

914.07 

1.1 

1.2 

OBSCENE MATERIAL 

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

OBSCENE MATERIAL 

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. 

Material may be deemed obscene under applicable constitutional standards. A publication is 

deemed obscene when ALL of the following apply: 

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. 

1.3 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-ROS Document 1-1 Filed 11/06/15 Page 25 of 90
EXHIBIT B 

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

VOL. 25 No. 3 March 2014 ISSN 1075-7678 Dedicated to Protecting Human Rights

Corizon Needs a Checkup: Problems with

Privatized Correctional Healthcare

by Greg Dober

Corizon, 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 

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.

Prison Medical Care for Profit

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 

From the Editor 18

Private Prison Racial Disparities 20

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

Prison Legal News

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 27 of 90
March 2014 2 Prison Legal News

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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 28 of 90
Prison Legal News 3 March 2014

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.

Arizona DO

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 

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 DO

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 

Privatized Healthcare Problems (cont.)

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

Matthew Clarke, John Dannenberg, 

Derek Gilna, Gary Hunter, 

David Reutter, Mark Wilson, 

Joe Watson, Christopher Zoukis

re

Mari Garcia

ad

Susan Schwartzkopf

LAYOUT

Lansing Scott

HRDCli

Lance Weber—General Counsel 

Robert Jack—Staff Attorney

PLN is a monthly publication.

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related to prisoner rights and prison conditions of confinement. PLN welcomes all news 

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Prison Legal News

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 29 of 90
March 2014 4 Prison Legal News

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 paraBRANLETTES BEAUTIES

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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 30 of 90
Prison Legal News 5 March 2014

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 

APRIL 2013

FRESNO, CALIFORNIA

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October 2013, Californ

• $90,000 settlement with CDCR and 

LA Sheriff 

• Confidential settlement with CDCR

• $600,000 injury recovery

• $150,000 bad faith settlement

• Federal action dismissed without 

penalty by agency

• Parole dates granted by BPH

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 31 of 90
March 2014 6 Prison Legal News

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 DO

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 

Privatized Healthcare Problems (cont.)

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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 32 of 90
Prison Legal News 7 March 2014

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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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 33 of 90
March 2014 8 Prison Legal News

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, misleading 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].

Indiana DO

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 

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.

Maine DO

In an October 2013 Bangor Daily New

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 

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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 34 of 90
Prison Legal News 9 March 2014

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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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 35 of 90
March 2014 10 Prison Legal News

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 

Corizon took too long to evaluate and 

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 

and others like hers is easily preventable,” 

said Chad McCoy, the attorney representing George’s estate.

Minnesota DO

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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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 36 of 90
Prison Legal News 11 March 2014

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” 

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 

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 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 37 of 90
March 2014 12 Prison Legal News

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, citing 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 

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 

Privatized Healthcare Problems (cont.)

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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 Misconduc

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 

Somers, CT.)

(Void in New York)

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 39 of 90
March 2014 14 Prison Legal News

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.”

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 

Privatized Healthcare Problems (cont.)

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Prison Legal News 15 March 2014

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 willing 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.

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 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 41 of 90
March 2014 16 Prison Legal News

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 

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(Transfers Under The Int’l Prisoner Treaty) 

3907 N. Federal Highway, # 151

Pompano Beach, FL 33064

954-271-2304

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 Esta

by Derek Gilna

Nicholas 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.”

Privatized Healthcare Problems (cont.)

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 42 of 90
Prison Legal News 17 March 2014

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 

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. 

LEARN TO 

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Learn how to defend your 

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the comprehensive litigation guide, Protecting Your 

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prisoners who are unable to 

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Written by Robert E. Toone

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Seventh Circuit Upholds Removal

of Prisoner’s Dreadlock

The 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 originally-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]. 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 43 of 90
March 2014 18 Prison Legal News

From the Edito

by Paul Wright

This month’s cover story onCorizon, 

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 

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 Consen

On 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 

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). 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 44 of 90
Prison Legal News 19 March 2014

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. David Ganim, HRDC’s national Prison Phone Justice Director, 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!

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 45 of 90
March 2014 20 Prison Legal News

Why There’s an Even Larger Racial Disparit

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 

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 money 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 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 46 of 90
Prison Legal News 21 March 2014

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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.” 

* The study draws on data from nine 

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.

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 47 of 90
March 2014 22 Prison Legal News

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

your sports scores and lines delivered conveniently to your email 

inbox, every day! Add info@sportzzbuzz.com to your Corrlinks 

email subscription list for info. on how to get The Buzz!

Arrest-Proof Yourself, by Dale Carson and Wes Denha

(Chicago Review Press, 2007). 282 pages (paperback), $14.95.

Book review by John E. Dannenberg

I

n short, Arrest-Proof Yourself is

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. 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 48 of 90
Prison Legal News 23 March 2014

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March 2014 24 Prison Legal News

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When Victims Speak Up in Court – in Defense of the Crimina

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.

One 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 

one year after Autobee’s death, Montour 

pleaded guilty to 

first-degree murder 

and was quickly sentenced to death by a 

Colorado judge. But 

that death sentence 

was overturned, in 

2007, after the U.S. 

Supreme Court ruled 

in Ring v. Arizona 

that judges alone, 

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:

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 50 of 90
Prison Legal News 25 March 2014

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“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 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 51 of 90
March 2014 26 Prison Legal News

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 

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.

“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.

Victims Defend Criminals (cont.

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 52 of 90
Prison Legal News 27 March 2014

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: 651-361-

7226 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: 502-564-

4726, 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 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 53 of 90
March 2014 28 Prison Legal News

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Texas Criminal Court Fees are a Tax on Poor Defendant

by Matt Clarke

The 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 

$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 

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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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 54 of 90
Prison Legal News 29 March 2014

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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)

Texas O

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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 55 of 90
March 2014 30 Prison Legal News

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Oregon Jail Guard Quits, Divorces Wife for Former Prisone

“I 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 

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 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 56 of 90
Prison Legal News 31 March 2014

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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 Improperl

Enhanced Prisoner’s Parole Da

The 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). 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 57 of 90
March 2014 32 Prison Legal News

California Female Prisoners Sterilize

More 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 

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 

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

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 58 of 90
Prison Legal News 33 March 2014

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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 59 of 90
March 2014 34 Prison Legal News

Kentucky Supreme Court: Probation Cannot be

Extended for Sex Offender Treatme

The 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 

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

On 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, 

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 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 60 of 90
Prison Legal News 35 March 2014

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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 

Office, 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. 

Seventh Circuit Upholds

FTCA Venue Transfer

The 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 “Although 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). 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 61 of 90
March 2014 36 Prison Legal News

Alabama Sheriff Made Party on Counterclaim

Alleging Prisoners Subjected to Sexual Abu

The 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 

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 Eviden

The 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 

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.

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 62 of 90
Prison Legal News 37 March 2014

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 Ordere

The 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 

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.”

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). 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 63 of 90
March 2014 38 Prison Legal News

California County Not Liable for Misconduct of Jail

Guard Not Acting within Scope of Employm

On 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 

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 

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).

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 64 of 90
Prison Legal News 39 March 2014

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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, 

Second Circuit: Videoconference at Resentencing

Violates Right to be Present

The 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 

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 violated 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. 

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. 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 65 of 90
March 2014 40 Prison Legal News

Eighth Circuit: Denial of Nominal Dama

Jury Instruction was Improper

The 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 

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 Jailer

Compared 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 

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

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 66 of 90
Prison Legal News 41 March 2014

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D.C. Circuit Holds PLRA’s Exhaustion Requiremen

Inapplicable to Former Prisoner

The 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 

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). 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 67 of 90
March 2014 42 Prison Legal News

Michigan Parole and Probation Supervision

Scrutinized; Three Officials Fire

The 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. 

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 

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 Palme

See page 61 for more information.

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 68 of 90
Prison Legal News 43 March 2014

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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PO Box 1151 • Lake Worth, FL 33460

Tel 561-360-2523 • www.prisonlegalnews.org

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 69 of 90
March 2014 44 Prison Legal News

The Federal Tort Claims Act: A Primer

by Derek Gilna

The 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 

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 (4th 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); 

28 U.S.C. § 2675(b). A sum certain means 

a specified dollar amount.

Claimants under the FTCA 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 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 70 of 90
Prison Legal News 45 March 2014

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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 FTCA 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 functions 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

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 71 of 90
March 2014 46 Prison Legal News

Psst! Hey Man, Need Some Execution Dr

Officials 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 possibility 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. 

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 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 72 of 90
Prison Legal News 47 March 2014

[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 

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 

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

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 73 of 90
March 2014 48 Prison Legal News

A Rare Look Inside the Maine State Prison’s “Superma

An almost-clean version of hell 

by Lance Tapley

There 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 400-

speed, 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 Joseph 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.”

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.

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 74 of 90
Prison Legal News 49 March 2014

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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 75 of 90
March 2014 50 Prison Legal News

Video Visitation a Growing Trend, but Concerns Remain

A 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 

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 

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.

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 76 of 90
Prison Legal News 51 March 2014

“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 Close

According 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 

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 Waive

of Court-ordered Answer

An 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 

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. 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 77 of 90
March 2014 52 Prison Legal News

New Hampshire Prisoners Suspected o

Breaching Prison Computer Syste

New 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 

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 UNICO

by Derek Gilna

When 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 

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 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 78 of 90
Prison Legal News 53 March 2014

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 

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 reintroduced 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)

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 79 of 90
March 2014 54 Prison Legal News

Ninth Circuit Holds Staff Sexual Abuse Presumed Coerciv

State Bears Burden of Rebutting Presumptio

The 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. 

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 manifestations 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 Deat

The 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 

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.

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 80 of 90
Prison Legal News 55 March 2014

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“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 

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

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 81 of 90
March 2014 56 Prison Legal News

News in Brie

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 

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 

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 

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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 82 of 90
Prison Legal News 57 March 2014

Airway Heights, WA.)

(Void in New York)

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 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 83 of 90
March 2014 58 Prison Legal News

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, 

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 

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Prison Legal News 59 March 2014

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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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 85 of 90
March 2014 60 Prison Legal News

News In Brief (cont.

Criminal Justice Resources

ACLU National Prison Project

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

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

The Exoneration 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 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

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) 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

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

Just Detention International 

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

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) 684-

1550. 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

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. 

Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 86 of 90
Prison Legal News 61 March 2014

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Case 2:15-cv-02245-ROS Document 1-1 Filed 11/06/15 Page 88 of 90
Prison Legal News 63 March 2014

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