On February 5, 2008, the U.S. Court of Appeals for the Tenth Circuit reversed the dismissal of a suit against Corrections Corporation of America (CCA) for failure to prove exhaustion of administrative remedies.

Wesley Purkey, a federal prisoner formerly housed at CCA’s facility in Hearenworth, Kansas, sued CCA and various CCA employees for alleged constitutional violations. The defendants moved to dismiss, arguing that Purkey failed to show that he exhausted his administrative remedies prior to filing suit. The district court granted the motion. Purkey appealed.

On Appeal, Purkey argued that it was not his burden to show exhaustion of administrative remedies. The Tenth Circuit agreed. In Jones v. Bock, 549 U.S. 199 (2006), the Supreme Court held that exhaustion of administrative remedies is an affirmative defense that must be pleaded and proven by the defense. Accordingly, the Tenth Circuit reversed and remanded the matter to the district court for further proceedings. See: Purkey v. CCA Detention Center, 263 Fed. Appx. 723 (10th Cir. 2008).

The district court denied the defendants’ renewed motion for summary judgment on remand. Purkey had filed a grievance with the CCA facility but was transferred to another facility before receiving a denial. The court determined that ...

The short, sad lives of some detainees facing relatively minor charges end in jail. Here are three such cases.
By Rob Jordan

As she laid her head on her big sister's chest and listened to the heartbeats slow, Harolyn Frazier thought of opportunities lost. In the wake of a seizure, 38-year-old Lola Davis was brain dead, and Frazier had given hospital staff permission to turn off life support. A guard sat on a bench nearby. Outside the narrow window, evening light gave in to darkness.

Frazier sobbed quietly, thinking of the baby girl Davis had given birth to six months earlier. She thought of life without her sister, the only close family she had left. She thought about how their lives had taken such separate paths — Frazier had become an ordained minister and successful office manager, while her sister had been condemned to draw her last breath in a place where freedom is a hallucination. Then the heartbeats stopped.

Within minutes the guard had "secured the scene." As Frazier consoled two of Davis's daughters outside, a police officer arrived, followed by a homicide detective who dutifully recorded the details. "Deceased was an inmate at TGK [Turner Guilford Knight Correctional ...

Detention Retention

President Obama has tried to split the difference between comprehensive immigration-reform advocates and law-and-order types. But for immigrants in detention, not much has changed since the Bush era.

Renee Feltz and Stokely Baksh | June 2, 2009 | web only

Maria del Carmen Garcia-Martinez recently emerged from an Immigration and Customs Enforcement (ICE) holding cell in Maricopa County, Arizona, with her arm broken and her hand covered in blue ink. She had been booked for forgery at a Phoenix jail, where six officers twisted her arm after she resisted putting her fingerprint on what she thought was a form that would deport her to Mexico.

Garcia-Martinez spoke only Spanish, the form was in English, and she believed that after 19 years in the United States, she had a good case for staying in the country, despite her lack of documentation. Her forgery charge stemmed from a California driver's license she showed to an officer who asked for identification while telling her not to post yard-sale signs on city property. But the license wasn't a forgery; it was just expired. The charges were dropped.

Garcia-Martinez's treatment while in custody was unusually harsh, but her experience of being harassed and ...

A Final Frontier in Prisoner Litigation

Does Bivens Extend to Employees of Private Prisons Who Violate the Constitution?

By: Matthew W. Tikonoff

Suffolk University Law Review - Volume 40, Book 4, 06/07 - Please Cite Directly to Suffolk University Law Review

NOTES

“[N]o iron curtain [exists] between the Constitution and the prisons of this country.”[1]

I. Introduction

Over the past few decades, corporate America has accrued influence and power in a most unlikely arena: the nation’s prison system.[2] States and the federal government, citing economic and logistical advantages, have enlisted corporations to construct, staff, and operate their correctional facilities.[3] As the federal inmate population skyrockets, the federal government’s reliance on prison corporations has become pronounced in recent years.[4] The industry’s success produced controversy, as critics have argued that the corporations’ focus on profitability compromises inmate welfare.[5] The news media reports of abusive conditions in private prisons corroborate these suspicions.[6]

Coincident with the rise of private prisons, inmates began suing private prison employees for alleged constitutional violations.[7] These inmates filed suit pursuant to Bivens, a cause of action that exposes “federal agent[s] acting under color of [their] authority” to monetary damages for violating an individual’s constitutional rights.[8] The lower courts were ...

Billionaire-Funded California Voter Initiative Triples Lifer Parole Denial Intervals, Imposes Restrictions on Parole Violators

In the November 2008 elections, California voters narrowly passed Proposition 9 by a 53 to 47% margin. Prop. 9 was a state Initiative Act that 1) tripled the statutory intervals permitted by the Board of Parole Hearings (BPH) when denying parole to life-sentenced prisoners, and 2) countered a recent U.S. District Court ruling that guaranteed legal representation and prompt revocation hearings for parole violators.

Seductively labeled on the ballot as a “victim’s rights” act, Prop. 9 was bankrolled almost entirely by billionaire Henry T. Nicholas III, whose 21-year-old sister, Marsy Leach, was murdered in 1983 by a former boyfriend. Notwithstanding that Marsy’s killer died in prison years ago, Prop. 9 was in reality a posthumous blanket decree designed to punish all of California’s 120,000 parolees and 30,000 life-sentenced prisoners.

But in what can only be characterized as poetic justice, Nicholas was himself recently indicted on 21 federal charges that include stock fraud, conspiracy, pimping, perjury, drugging friends’ and prostitutes’ cocktails, and having a warehouse of drugs. He faces up to 340 years in prison and is scheduled to go to trial in late 2009.

The Tentacles ...

Caging Kids for Cash: Two Pennsylvania Judges Guilty of Selling Out Juvenile Justice System

by Matt Clarke

Judges are supposed to be the protectors of our constitutional rights. They are expected to be fair and impartial, and to safeguard vulnerable members of society who are unable to protect themselves. Admitting to a shocking breach of this sacred trust, in January 2009 two Luzerne County, Pennsylvania judges entered guilty pleas to federal charges related to their acceptance of $2.6 million in kickbacks.

The payments were for their help in arranging the construction of private juvenile facilities, eliminating a county-owned and operated juvenile prison, obtaining a favorable contract for the private facilities, and incarcerating juvenile offenders accused of minor crimes in the private, for-profit prisons.

On January 21, 2009, Luzerne County President Judge Mark A. Ciavarella, Jr., 58, and Senior Judge Michael T. Conahan, 56, entered conditional guilty pleas to the charges contained in a 22-page criminal information. The plea agreement requires them to resign from their positions, pay an undisclosed amount of restitution, and serve 87 months in prison. Both remain free on $1,000,000 unsecured bonds pending formal guilty pleas and sentencing. See: United States v. Ciavarella and Conahan, U.S.D.C. (MD ...

California County’s 2005 Purchase of Private Prison Still Clouded in Conflict of Interest Questions

by Marvin Mentor

Investigative journalism by the San Bernardino Daily Bulletin has revealed that the April 2005, $31.2 million purchase of a private prison by San Bernardino County remains under a conflict-of-interest cloud because the lobbyist who represented both the buyer and seller allegedly did not fully disclose his dual relationship at the time.

The Victor Valley Modified Community Correctional Facility, located in Adelanto, was owned by Maranatha Corrections, LLC. The company’s consultant, former state Assemblyman and Board of Prisons Terms member Brett Granlund, also served as a lobbyist for the county. Maranatha founder Terry Moreland reportedly failed to disclose this conflict of interest to county officials at the time of the private prison sale.

The conflict question was subsequently assigned to independent attorney Leonard Gumport, who found that Granlund’s involvement in the sale was “minimal” and he had no influence on the purchase negotiations. Although the parties insist there was no wrongdoing regarding the sale of the prison, Gumport’s report has never been made public. [See: PLN, Dec. 2007, p.15; Jan. 2006, p. 20].

The private prison had been built on spec by Moreland, who ...

by Matt Clarke

In July 2008, Louisiana-based private prison company LCS Corrections Services agreed to remove junked cars, appliances and other debris inhibiting the flow of Petronila Creek, which runs close to LCS’s newly-built 1,100-bed Coastal Bend Detention Center near Robstown, Texas.

The company had applied to the Texas Commission on Environmental Quality (TCEQ) for a permit to discharge up to 150,000 gallons a day of treated wastewater into the creek.
The permit was opposed by residents, especially those from nearby Lost Creek colonia, because the creek already had putrid, stagnant water and tended to flood due to blockages.
A colonia is an unincorporated, often impoverished community in the southwest, usually without potable water, sewage systems or paved roads.

Although water tests had not shown high levels of E. coli bacteria, Lost Creek residents complained that the creek water sickened both community members and livestock. The contamination may have resulted from people dumping animal carcasses into the creek, or from brine pits and brine injection wells located close by. The creek tested high for chlorides, sulfates and total dissolved solids. State agencies had refused to clear the creek’s flow obstructions because it cuts through private property and was not considered ...

$75,000 Settlement in Utah Jail Prisoner’s Suicide

Officials at the Salt Lake City Jail settled a lawsuit involving a prisoner’s suicide for $75,000. The settlement came in the hanging death of Arthur Henderson.

When he was booked on January 28, 2006, Henderson revealed he was depressed and had suicidal ideations, ...

The U.S. Court of Appeals for the Eleventh Circuit held that a federal prisoner incarcerated at a privately operated prison may not pursue a Bivens action against private prison employees for violating his Eighth Amendment rights.

Luis Francisco Alba, a federal prisoner incarcerated at the McRae Correctional Institution in McRae, Georgia, filed a pro se civil rights complaint claiming deliberately indifferent medical care. McRae is owned and operated by Corrections Corporation of America (CCA) under contract with the Federal Bureau of Prisons (BOP).

According to his complaint, Alba underwent surgery for a benign goiter in his throat while at McRae. He alleged that the surgery damaged his vocal cords, and that despite repeated requests he was not given appropriate post-operative treatment. Alba sued several individual CCA employees, including the warden and other health services staff, but not CCA corporate.

He specifically alleged that prison employees, acting pursuant to CCA policy, had refused to schedule thyroplasty surgery – a corrective procedure recommended by a throat specialist. Alba contended that CCA employees did not authorize the surgery based on a CCA policy that considered the surgery “elective” in order to curtail medical costs. Alba sought monetary damages and an order directing prison ...