Dismissal Sanction for Prisoner's Refusal to be Deposed Without Court Order Reversed


The Tenth Circuit Court of Appeals held that considering a prisoner's refusal to be deposed absent a court order, as a factor to enter a sanction of dismissal is improper. The Court further held the failure to enter a default judgment for the prisoner was not an abuse of discretion.


Michael Ashby, a Colorado prisoner confined at the Crowley County Correctional Facility (CCCF), alleged in his 42 U.S.C. § 1983 complaint that food he ate at CCCF was contaminated with glass, causing him internal injuries. Ashby sued two officials at CCCF and other "shell" companies owned by Correctional Services Corporation (CSC).


CSC has set up a complex web of shell companies to avoid liability and, in this case, service. The progress of this litigation was delayed because of a dispute over the existence/designation of defendant Crowley Correctional Services Limited Liability Company (Crowley LLC). Crowley LLC did not file an answer for nineteen months, and Ashby moved for default judgment. The Tenth Circuit held the district court did not abuse its discretion in denying that motion due to a pending motion to dismiss Crowley LLC as a defendant.


The ...

Three Virginia retailers who made their money from prisoner earnings now find themselves in financial trouble. In August 2003, when the Virginia Department of Corrections (DOC) relinquished management of prison commissaries to St. Louis-based Keefe Supply Co., three Virginia vendors filed suit against the prisons in Richmond Circuit Court.


Virginia Smacks Inc., Highland Beef Farms and Lee Hartman & Sons have literally lost millions of dollars under the privatization package.


Based on their common misery the three companies brought suit against the DOC alleging that the privatization deal with Keefe is illegal in that the St. Louis Company is allowed to benefit from cheap prison labor. "You can't provide inmate labor to a private enterprise as a subsidy," said Ian Wilson, attorney for the plaintiffs.


Keefe first took over five Virginia prisons in 2002, under former Corrections Director Ron J. Angelone. Department spokesman Larry Traylor says that privatization centralizes the process, is more efficient and saves the state money. Keefe went from management of five commissaries in 2002 to thirty-seven in 2003.


Wilson points to contract documents that show that the privatization package always intended to provide Keefe with "inmate labor, at a very low cost." He argues that this ...

Conditions at the McPherson and Grimes Correctional Units in Newport, Arkansas are unconstitutional, the U.S. Department of Justice concluded after an 18-month investigation. According to the investigation report, dated November 25, 2003, investigators found that prisoners at both units experienced deliberate indifference to their serious medical needs, were not adequately protected from physical harm and sexual assault, and were exposed to unsanitary and unsafe conditions.


McPherson is the state's only women's prison. Built to house roughly 600 prisoners, it held approximately 700 at the time of the investigation. Grimes housed young men from 16-24 years of age. The units are part of a single complex. Both are comprised of barracks-style dormitories (which have been found unconstitutional as far back as 1970).


Originally operated by Wackenhut Corrections Corporation, the state resumed control of the prisons in July 2001 after refusing to pay for increased operating costsbut the problems persist.


Medical Care


Medical care at the prisons, which is provided by Correctional Medical Services (CMS), was found to be seriously deficient.


For instance, asthmatics' access to chronic care was impeded by a CMS policy prohibiting medical personnel from ordering inhalers, instead requiring the prisoners to report to the infirmary when they experienced ...

Pastor Don Raymond isn't trained in corrections and is not employed by the government, but he runs a new 140-person wing of the Ellsworth, Kansas, medium-security prison that draws prisoners from throughout the state system.


In the phylum of prison staff, Raymond defies classification. He is not a tight-lipped warden, vindictive guard, or burnt-out social worker. In an industry that thrives on invisibility and resents the media, Raymond drives 140 miles, past newly seeded wheat fields and the rhythmically bowing heads of oil-well pumps, to pick me up from the airport, where he offers prayers of thanksgiving for my visit and "for the ministries of writing He has blessed Samantha with." In a building that hums with hostility, Raymond is attentive, unguarded, gentle. Prison staff are not permitted to share personal information with prisoners, address them by their first names, or socialize in any way; if a prisoner wants to speak privately with a counselor, he has to fill out a Form-9. But these restrictions do not apply to Raymond, who often puts in 14-hour days working the cellblocks of the state's prisons, recruiting men to transfer to his wing. In prisoners' marked bodies, averted eyes, and bristling rage, Raymond ...

"Unremarkable." That's what prison nurse Jolinda Waterman called Donnie Powe's condition when she relegated him to an observation cell. Guards perfunctorily recorded his declining health right up until he died, face down on the floor of his 6 by 8 foot tomb in Wisconsin Secure Program Facility (WSPF) aka Supermax.


For twenty-one hours guards literally watched Powe die slowly inside his Supermax prison cell. Powe had complained of weakness and vomiting, telling a prison nurse he thought he had the flu. The nurse put Powe on a clear liquid diet and told him to contact medical later if he didn't feel better. This is where the record of his slow, agonizing death begins.


March 15, 2003, 12:45pm A prison sergeant calls nurse Waterman to Powe's cell. Powe is "only mumbly when spoken to," says the sergeant. Powe's mattress is on the floor, he is "unable to, move (his)" legs and his speech is "slow and softly spoken."


Unable to walk and barely able to lift his head, Powe is placed in a "restraint chair" and taken to the infirmary. Waterman diagnoses Powe's symptoms as "unremarkable." She leaves him on a liquid diet and gives him a laxative. Powe is placed ...

Constitutional Amendment Effort Launched
to Bar Florida's Prison Privatization

by David M. Reutter


The Florida Police Benevolence As-sociation (PBA) has launched a petition drive to enact an amendment to Florida's constitution that would bar privatization of prisons, jails, and offender supervision. The PBA represents over 30,000 law enforcement, corrections, and probation officers.


The PBA launched the drive following Governor Jeb Bush's recent proposal for the state legislature to provide an emergency $65 million to build new prison beds. That proposal included a provision to set aside $75,000 to allow the Correctional Privatization Commission, Florida's private prison oversight group, to take bids to build an 1,800 bed prison in Northwest Florida.


"The PBA went ballistic" when it learned of the provision, said Senator Victor Crist, R-Temple Terrace, one of the bill's co-sponsors. While campaigning for re-election in July 2002, Bush pledged to the PBA that he would not seek more private prisons. That pledge may have been subject to fiscal lobbying. In 2002, private prison companies Wackenhut, Corrections Corporation of America, and Cornell Companies, Inc., donated $274,000 to Florida candidates and political parties.


Prison privatization has its critics in the Florida legislature. "The control of individuals who have had their rights ...

Permanent Injunction Requires Full HCV
Retreatment for Florida Prisoner

by John E. Dannenberg


The U.S. District Court (S.D. Fla.) is-sued a permanent injunction on July 24, 2003 ordering James Crosby, the Secretary of the Florida Department of Corrections (FLADOC) and its contract health care provider Wexford Health Sources, Inc. (Wexford) ...

Court Questions Federal Assault Conviction
on Private Prison Guard


In a case applicable to all federal pris-oners incarcerated in private and state prisons the Fifth Circuit Court of Appeals held a federal prisoner who assaults a private person employed at a privately run prison may be convicted of assault of a federal officer with a dangerous weapon under 18 U.S.C. § 1141. Jesus Jacquez-Beltram appealed his conviction under § 1141 for acts committed while incarcerated at the Eden Correctional Center (ECC) in Texas, a prison operated by Corrections Corporation of American (CCA).


As the guard was a private employee of CCA rather than a federal employee, to be a covered victim under § 1141 he must have been assaulted either while assisting a federal officer or employee in the performance of his official duties in assisting federal officers. The Court found Beltram was read the indictment and voluntarily pled guilty. The indictment alleged the guard was assisting an officer or employee in the capacity of a guard for the Bureau of Prisons (BOP) when Beltram hit him over the head with a two-way radio. The Court declined to add to the statutory elements by requiring that a federal agent be ...

Fighting For Fair Phone Rates

by Deborah M. Golden

In 2000, a group of prisoners, loved ones of prisoners, and attorneys filed a lawsuit in the U.S. District Court for the District of Columbia challenging the high cost of collect calls from private correctional facilities. The case is Wright, v. Corrections Corporation of America, USDC DC case no. 1:00CV00293 (GK), in front of Judge Kessler. This group is represented by attorneys at Seliger & Elkin, in Chicago; D.C. Prisoners' Legal Services Project, in Washington, DC; and the Center for Constitutional Rights, in New York. The lawsuit claims, among other things, that the high costs of the phone calls violate anti-trust laws, the Eighth Amendment, and the Federal Communications Act.

We asked the court to make the case a class action, but the judge did not rule on that motion. Instead, in August 2001, the judge ordered us to go to the Federal Communications Commission ("FCC") because the case involves issues under its jurisdiction. However, the judge did not dismiss the case, but nothing will happen until FCC rules.

In front of the FCC, the process is being divided into two parts. The first part is a Petition for Rulemaking, in ...

County May Be Liable For Private Prison's Customs And Policies

by Bob Williams


The New Mexico federal district court has held that a county could potentially be liable under 42 U.S.C. § 1983 for the customs and policies of a private prison corporation to whom it had contracted the operation of its jail. Exhaustion of administrative remedies was also mandated.


Fernando Herrera, a temporary prisoner in the Santa Fe County Detention Center operated by Cornell Corrections, Inc., a private prison corporation, was threatened, shot three times in the head, side, and testicle with a pellet shotgun, then beaten and kicked by guards with one guard jumping on his head. Herrera had warned a county transport guard this would happen.


Herrera filed a § 1983 complaint against the County of Santa Fe, Cornell Corrections Inc., and several guards, raising Eighth Amendment use of excessive force and state law negligence claims. The district court denied the defendant's motion to dismiss but raised sua sponte the issue of exhausting administrative remedies.


In denying the defendant's motion to dismiss, the Court noted that only the warning to a transport guard could conceivably involve the county. The remaining claims were against Cornell and its employees. ...