Archives for posts with tag: prisoners

A few posts ago, NinjaLaw told you some details about federal prisoner Waseem Daker,. That post briefed the February 2007 opinion by Judge Story of the District Court in Georgia and also mentioned some updates on Mr. Daker’s current situation. The post today arises from the conclusion of proceedings about the books, already referenced in the previous posts. This opinion is August 2007 and, as mentioned previously, it was upheld on appeal. But also recall from the previous post, that despite this being the end of Mr. Daker’s RLUIPA claims about these books it is not the end of his story. Mr. Daker was rearrested five years after serving a ten year sentence and is now again in Federal prison on charges related to the same 1995 situation.

Waseem DAKER, Plaintiff,
v.
Joe FERRERO, et al., Defendants.

Civil Action No. 1:03-CV-02481-RWS.
506 F.Supp.2d 1295 (2007)
United States District Court, N.D. Georgia, Atlanta Division.

This August 2007 opinion includes the names of a variety of books banned from Mr. Daker’s prison reading requests and determines that some were properly denied, others were improperly denied but the defendant’s aren’t liable for the error and some were improperly denied and constitutional first amendment rights were violated.

Both parties move for summary judgment on Plaintiff’s claims arising out of the denial of approximately 55 publications and numerous mailings while Plaintiff was incarcerated in GDC facilities. Defendants admit that the following publications, listed in the chronological order of their denial, were denied to Plaintiff:

including:

14) Ninja: History and Tradition
(15) Ninja: Power of the Mind
(16a) Ninja Mind Control
(16b) Bin Laden: The Man Who Declared War on America

Noting in footnote: “In its Order of February 26, 2007, the Court mistakenly listed Ninja Mind Control and Bin Laden: The Man Who Declared War on America as a single book denoted as Number 16 on the list,” – explaining why now 16a and 16b, also on this book list

The claims on these books was ruled summary judgment for the defendant, the prison, because of qualified immunity related to “Materials Containing Instructions on Fighting Techniques and Military Procedures and Materials Which Could Assist a Prisoner in Effecting an Escape”, citing Thornburgh:

the Supreme Court approved of a regulation restricting material which “depicts, encourages, or describes methods of escape from correctional facilities” or “depicts, describes or encourages activities which may lead to the use of physical violence or group disruption.” See Thornburgh, 490 U.S. at 413 (quoting 28 C.F.R. § 540.71(b)). The Court agrees with Defendants that the titles of these books could lead a reasonable prison official to conclude that they would assist in planning an escape from a prison institution or may lead to the use of physical violence or group disruption. Moreover, Plaintiff has failed to direct the Court to any precedent which clearly establishes the right to access books of a similar title or description. For both reasons, Defendants are entitled to qualified immunity.

One other “ninja” book on the censored list was:

(46) The Black Science: Ancient and Modern Techniques of Ninja

The claim on this book (#46) was also summary judgment for the defendant, because plaintiff conceded that it (amongst a few other books) “could be constitutionally denied on the basis of content” (see footnote #4).

There are other books on the list for which plaintiff won summary judgment (for example he was denied a book on Criminal Trial Practice for seemingly no good reason). The case also went on to trial on issues of procedural due process but this August 2007 opinion was determinative for the ninja issues. And as mentioned in previous post, he seems to be on trial again and also still filing civil rights actions – see this one filed two weeks ago, Aug 10, 2012.

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In this case, the court’s majority denied a writ of habeas corpus to a convicted cult leader, Jeffrey Lundgren, who claimed ineffective assistance of counsel. The word “ninja” appears in the dissent, in which Judge Merritt argues that the defense counsel’s failure to claim the insanity defense was ineffective assistance. But the majority saw it as a reasonable decision and would not let the defendant get the opportunity to first test the case at trial and then allege insanity. The particular facts are about insanity by “deific degree”, meaning the defendant acted under belief he was ordered by god to kill.

JEFFREY D. LUNDGREN, Petitioner-Appellant,
v.
BETTY MITCHELL, Warden, Respondent-Appellee.

No. 02-3001; 440 F.3d 754
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Decided, March 13, 2006, Judge Merritt’s dissent begins:

Lundgren testified that he killed a family of five cult members as a religious sacrifice. He did so, he said, because he received a command from God that this sacrifice was necessary to prepare for “Zion” and the “Second Coming.” I disagree with our Court’s decision and reasoning in section II.D.3. above rejecting Lundgren’s ineffective assistance of counsel claim based on trial counsel’s inexplicable failure to raise the defense of insanity. Other than insanity Lundgren had no defense. In many similar “deific decree” cases in which a “delusional” person like Lundgren professed to be following God’s command to kill, defense lawyers have almost uniformly entered an insanity plea — and the jury has accepted the defense in some of the cases. As we shall see, even the prosecutors in the case could not understand why Lundgren’s lawyers did not enter such a defense. I will also apply Ohio’s definition of insanity in light of a mental illness theory counsel overlooked in bypassing his only available defense. I will then show why, in light of these considerations, the conduct of Lundgren’s counsel was manifestly ineffective. The writ of habeas corpus should have issued in this case to require a new trial in which Lundgren would be allowed to present the insanity defense before the jury.

The dissent then continues by listing a variety of deific decree insanity defenses over the past 200 years:

State v. Lafferty, 2001 UT 19, 20 P.3d 342, 363 (Utah 2001) (Mormon fundamentalist, who killed his sister-in-law and her infant child pursuant to God’s “removal revelation,” presented insanity defense to jury);

People v. Coddington, 23 Cal. 4th 529, 97 Cal. Rptr. 2d 528, 2 P.3d 1081, 1103, 1110-14 (Cal. 2000), overruled on different grounds by Price v. Superior Court, 25 Cal. 4th 1046, 108 Cal. Rptr. 2d 409, 25 P.3d 618, 633 n.13 (Cal. 2001) (defendant presented insanity defense to jury after strangling chaperones of two girls he sexually abused professedly because God commanded the actions);

State v. Blair, 143 N.H. 669, 732 A.2d 448, 449-50 (N.H. 1999) (counsel presented insanity defense to jury in case in which husband bludgeoned his wife and son with a hammer after experiencing a “trance” in which God revealed that he would be cast into the lake of fire if he refused to do so);

People v. Serravo, 823 P.2d 128, 130 (Colo. 1992) (en banc) (jury found defendant not guilty by reason of insanity for stabbing his wife “in order to sever the marriage bond” in accordance with God’s purported instructions);

State v. Ryan, 233 Neb. 74, 444 N.W.2d 610, 632 (Neb. 1989) (cult leader entered plea of not guilty by reason of insanity after following Yahweh’s “command” to torture and kill an “unfaithful” cult member);

Laney v. State, 486 So. 2d 1242, 1245-46 (Miss. 1986) (defendant shot police officers because God purportedly commanded the act and presented insanity defense to jury);

State v. Cameron, 100 Wn.2d 520, 674 P.2d 650, 654 (Wash. 1983) (en banc) (jury question regarding insanity defense existed when defendant implemented God’s “command” to stab repeatedly his stepmother to stop the “evil spirit” within her);

State v. Malumphy, 105 Ariz. 200, 461 P.2d 677, 678 (Ariz. 1969) (defendant, who shot and killed two co-employees due to his belief that God sanctioned the deeds, presented insanity defense to jury);

State v. Di Paolo, 34 N.J. 279, 168 A.2d 401, 407-08 (N.J. 1961) (defendant repeatedly stabbed ex-girlfriend because God professedly commanded the actions and presented insanity defense to jury);

People v. Schmidt, 216 N.Y. 324, 110 N.E. 945, 945, 34 N.Y. Cr. 51 (N.Y. 1915) (defendant, who claimed God commanded him to kill a woman as a sacrifice, presented insanity defense to jury);

State v. Hudson, 1999 Tenn. Crim. App. LEXIS 144, No. 01C01-9508-CC-00270, 1999 WL 77844, at **1, 8 (Tenn. Crim. App. Feb. 19, 1999) (appellate court remanded for entry of a judgment of not guilty by reason of insanity in case in which defendant shot her one-month-old nephew, believing that God had instructed her to kill “the son of Satan”);

State v. McDaniel, 1998 Ohio App. LEXIS 6122, No. 18805, 1998 WL 887184, at **2-3 (Ohio Ct. App. Dec. 16, 1998) (defendant, after experiencing religious delusion that God commanded him to kill his wife with a baseball bat, presented insanity defense to jury);

Ivery v. State, 686 So. 2d 495, 499-503 (Ala. Crim. App. 1996) (defendant, who claimed to be the “ninja of God” and to have followed God’s command “to kill people at will and to take their money as the spoils of victory,” presented insanity defense to jury);

People v. Wilhoite, 228 Ill. App. 3d 12, 592 N.E.2d 48, 55-58, 169 Ill. Dec. 561 (Ill. App. Ct. 1991) (court found defendant not guilty by reason of insanity after she followed God’s “command” to shove her nine-year-old daughter out of apartment window to pass “a test to see if the defendant could get into heaven” prior to the imminent end of the world);

Perkey v. Cardwell, 369 F. Supp. 770, 770-74 (S.D. Ohio 1973), aff’d, 492 F.2d 1244 (6th Cir. 1974) (defendant claimed he was carrying out God’s orders by shooting victim and entered plea of not guilty by reason of insanity);

United States v. Guiteau, 10 F. 161, 186 (D.D.C. 1882) (defendant alleged he was following God’s command to kill the president and presented insanity defense to jury);

Elizabeth Mehren, Fellow Inmate Guilty of Murdering Ex-Priest, Los Angeles Times, Jan. 26, 2006, at A15 (Massachusetts inmate, who claimed God commanded him to kill defrocked priest, presented insanity defense to jury);

Mom Who Killed Kids with Rocks Committed to Mental Hospital, Chi. Trib., Apr. 7, 2004, at 8 (Texas jury found mother innocent by reason of insanity after she stoned two of her young sons to death with heavy rocks professedly in accordance with God’s instructions); Richard Moran, The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800), 19 Law & Soc’y Rev. 487, 508 (1985) (jury acquitted defendant who pled insanity defense following attempted shooting of the king of England purportedly at God’s direction);

cf. State v. Wilson, 242 Conn. 605, 700 A.2d 633, 641 (Conn. 1997) (“An individual laboring under a delusion that causes him to believe in the divine approbation of his conduct is an individual who, in all practicality, is unlikely to be able fully to appreciate the wrongfulness of that conduct.”).

With footnote #1

I am aware of only a few deific decree cases in which the insanity defense was not presented. In one of them, the failure to do so was held to constitute ineffective assistance of counsel. Galloway v. State, 1985 OK CR 42, 698 P.2d 940, 942 (Okla. Crim. App. 1985) (defendant, at the professed direction of God, “drove demons out” of his neighbor by killing him). In another, the defendant represented himself. Jon Krakauer, Under the Banner of Heaven xxii-xxiii (large print ed. 2003) (Mormon fundamentalist killed his sister-in-law and her infant child pursuant to God’s “removal revelation”). The brother of the aforementioned defendant declined to raise the insanity defense in his first trial because he believed the jury would interpret that defense as an admission of guilt, but, in his retrial, allowed counsel to present the insanity defense. State v. Lafferty, 2001 UT 19, 20 P.3d 342, 363 (Utah 2001); State v. Lafferty, 749 P.2d 1239, 1250 (Utah 1988). In addition, prosecutors wondered why some of Lundgren’s followers did not raise the insanity defense. See Cynthia Stalter Sasse & Peggy Murphy Widder, The Kirtland Massacre 273 (1991).

And so here, the word “ninja” is actually a reference to another case entirely. That case was in an Alabama criminal court. Again, in that case, and in this citing case, we see “ninja” in a case related to murder and religion.

Ultimately, the higher courts did not agree with Judge Merritt’s dissenting analysis (though a stay of execution was at one point temporarily ordered) and Jeffrey Lundgren was executed by the State of Ohio on October 24, 2006. The final clemency report can be read, with eight signatures recommending denial of clemency and explaining further details about his case. May the ninja gods have mercy on their souls.

Habeas petition successful because of violation of Brady v Maryland and perjured testimony. Time served but conviction vacated. Allegations of robber with a “Ninja mask” (note, ninja is capitalized):

CLINTON TURNER, Petitioner,
– against –
SUNNY L. SCHRIVER, Respondent.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
97 CV 3074 (NG)
327 F. Supp. 2d 174

Opinion by Judge Nina Gershon, decided July 21, 2004:

Petitioner brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1988 conviction, after a jury trial, in the New York Supreme Court, Queens County (Sherman, J.), of Robbery in the First Degree in violation of N. Y. Penal Law § 160.15; Robbery in the Third Degree in violation of N. Y. Penal Law § 160.05; and Grand Larceny in the Fourth Degree in violation of N. Y. Penal Law § 155.30. Petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of ten to twenty years on the Robbery in the First Degree count, and concurrent terms of two to four years on the Robbery in the Third Degree and Grand Larceny counts. Petitioner has completed his term of imprisonment.

At trial:

Officer Cardo testified that, at around five a.m. on October 17, 1987, he responded to a radio call of an assault in progress and found four individuals arguing over a Toyota that was parked in front of a Dunkin’ Donuts on College Point Avenue in Brooklyn, NY. Three of the individuals were black males and one was a white male. The white male, Mr. Clarke, told Officer Cardo that, as he was walking to his car, he was approached by four individuals, the three black males who were present and one person who fled after robbing him. The robber was carrying a knife and wearing black pants, a shirt, and had a Ninja mask over his face. He was approximately six feet tall and around thirty years old. Mr.. Clarke gave the individual with the knife his wallet, which contained approximately $1500 in cash. After the man took his wallet, he pulled the Ninja mask off of his head which allowed Mr. Clarke to see his face. The three black males were placed under arrest and were subsequently transported to the 109th precinct.

And:

Mr. Clarke testified that he never told the police or anyone else that petitioner was wearing a Ninja mask. Mr. Clarke did not see petitioner take anything out of his car. Petitioner did not have anything on his head when Mr. Clarke found him in the car or during the chase, and Mr. Clarke never told the police that there was anything on his head at that time.

And:

In summation, defense counsel began by stating that petitioner had admitted his criminal record and did not try to hide from the facts of his life. Defense counsel compared Officer Cardo’s testimony that Mr. Clarke told him that he was robbed near his car by a man wearing a Ninja mask with that of Officer Krien that Mr. Clarke told him that he saw only one individual in his car, he chased him, and the person stole his wallet at knife-point inside one of the project buildings. Defense counsel also pointed to the inconsistencies between Mr. Clarke’s testimony and that of both of the officers and how Mr. Clarke’s story changed over time. Counsel argued that these inconsistencies, petitioner’s knowledge of where Mr. Clarke lived and the car that he drove, and the implausibility of Mr. Clarke’s story, all provided reasonable doubt that a crime had occurred.

Concluding:

[T]his court holds that there has been a violation of due process based upon Brady v. Maryland for failure to turn over material impeachment evidence [related to Clarke’s criminal history]; that holding is sufficient in itself to require relief. In addition, on the facts of this case, there has also been a violation of due process based upon the admission of perjured testimony [by Clarke] which the prosecutor should have known was false.

Conclusion

The petition for a writ of habeas corpus is granted, and the judgment of conviction is vacated.

JOSE E. PAULINO, Plaintiff, -v.- AMICUCCI, WARDEN WESTCHESTER COUNTY JAIL, OFFICER BARBIERI, SERGEANT JOHN DOE, CAPTAIN JOHN DOE AND TEN OTHER KNOWN AND UNKNOWN OFFICERS OF THE SO CALLED NINJA TUTTLE SQUAD, Defendants.

02 Civ. 208 (LAP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2003 U.S. Dist. LEXIS 995
2003 WL 174303

Decided – January 23, 2003
Opinion by Loretta A. Preska, United States District Judge:

Plaintiff Jose E. Paulino brings this pro se action, pursuant to 42 U.S.C. § 1983, against defendants Warden Amicucci, Officer Barbieri, Sergeant John Doe, Captain John Doe and ten other known and unknown officers of the so called “Ninja Tuttle Squad” (collectively, the “defendants”) for damages he sustained on or about January 14, 2000, while he was incarcerated at the Westchester County Correctional Facility in Valhalla, New York. The defendants now move to dismiss the amended complaint pursuant to the Supreme Court’s ruling in Porter v. Nussle, 534 U.S. 516, 152 L. Ed. 2d 12, 122 S. Ct. 983 (2002), which held that an inmate cannot bring an action with respect to prison conditions under Federal law until he first exhausts the administrative remedies available to him. Because plaintiff has not exhausted his administrative remedies, plaintiff’s amended complaint is dismissed without prejudice to renewal upon proper exhaustion of plaintiff’s administrative remedies.

BACKGROUND

The following is a brief summary of the facts recited by plaintiff in his complaint. On or about January 14, 2000 1 plaintiff was an inmate at Westchester County Jail in Valhalla, New York. (Plaintiff’s Amended Complaint, hereafter “Compl.,” at P IV). According to plaintiff, at approximately 1:00 p.m. on or about that day, in Unit 4NE of the Jail, plaintiff was assaulted and “beaten and tortured physically and mentally” by the correctional officers known as the “Ninja Tuttles.” (Id.). The incident began when plaintiff was watching television in the common area at the jail. (Id.). The air conditioner was on, so plaintiff placed a sheet around his shoulders to keep warm. (Id.). Plaintiff was approached by Officer Barbieri, who instructed him to remove the sheet from his shoulders. (Id.). Plaintiff responded by telling Officer Barbieri that it was cold in the unit and that he did not have any clothing to protect him from the cold air. (Id.). Plaintiff then requested that Officer Barbieri call a sergeant. (Compl. P IV). When the sergeant showed up, instead of speaking to plaintiff to find out what had occurred, the sergeant ordered the entire unit in “lock-in.” (Id.).

Plaintiff alleges that five minutes later, approximately ten correctional officers came to his jail cell and assaulted and beat him in the face, head, arms, lower back and genitals. (Id.). As a result of their conduct, plaintiff sustained injuries which include swelling and pain in his left cheek and the back of his head, pain in his lower jaw when he eats, cuts to his wrists from the tight handcuffs, “strong” headaches, lower back pain and genital pain. (Compl. P IV-A). Furthermore, plaintiff suffers from a “genital medical condition” and continually experiences nightmares as a result of the abuse to which he was subjected. (Id.). Plaintiff asserts that he was seen by a physician’s assistant in the Metropolitan Detention Center in Brooklyn, New York with respect to the incident, but he was administered only a pain reliever for his headaches. (Id.).

Prior to filing the instant action, plaintiff did not present the facts relating to this complaint in accordance with the state prisoner grievance procedure. (Compl. P II.B). According to plaintiff, he was not in the Westchester County Jail, where the incident occurred, for long enough to file a complaint because the United States Marshals removed him before he could initiate any administrative grievance procedure. (Compl. P II.D).

Explaining:

Here, plaintiff does not dispute that he did not exhaust his administrative remedies. (Compl. P II.B; Plaintiff’s Opposition to Defendants’ Motion to Dismiss, hereafter “Pl. Opp.” at 3). Instead, plaintiff makes several arguments for why he should be excused from exhausting his administrative remedies. Plaintiff first insists that because he was removed from the Westchester County Jail on January 19-only five days after the incident-his stay was too short for him to have initiated any grievance procedure. (Pl. Opp. at 3). Second, plaintiff asserts that he was never advised by any staff member of any grievance program or procedure. (Id.). Finally, plaintiff claims that the grievance procedure “would have been futile, my effort would have been worthless and a waist [sic] of time, because there is a big gap between the New York State and/ or Westchester County Jail and the Federal Administrative Remedy procedure.” (Id.).

Nevertheless, the Court dismissed for lack of jurisdiction:

because plaintiff has not exhausted his administrative remedies, his claim should be dismissed for lack of subject matter jurisdiction without prejudice to renewal upon proper exhaustion of those remedies. See Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) (dismissal for failure to exhaust administrative remedies should be without prejudice).

Recall similar incident of prison emergency response terms called Ninja Turtles and consider also the character Harry Tuttle from the movie Brazil and Mr. Tuttle from Saved by the Bell.

ninja tuttle

KENNETH CLARK, Plaintiff, -v- WESTCHESTER COUNTY, WESTCHESTER COUNTY DEPARTMENT OF CORRECTION, WESTCHESTER COUNTY DEPARTMENT OF CORRECTION MEDICAL DEPARTMENT, OFFICER WILLIS, SERGEANT SIMMONS, # 107, T.A.C. TEAM, aka “Ninja Turtles”, and JOHN DOES # 1 THROUGH # 4, Defendants.

96 CIV. 8381 (DLC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1998 U.S. Dist. LEXIS 6086

Decided – April 30, 1998

Opinion written by District Judge Denise Cote:

On November 7, 1996, Kenneth Clark (“Clark”) commenced this action as a consequence of the brutal mistreatment that he alleges he received while a pretrial detainee at the Westchester County Jail in Valhalla, New York, during two incidents on November 12, 1995 and February 3, 1996. Clark’s original complaint named two individual defendants, Officer Peter Willis (“Willis”) and Sergeant Ronnie Simmons (“Simmons”), as well as Westchester County, the Westchester County Department of Corrections, and the Westchester County Department of Corrections Medical Department. The initial pleading also listed four John Doe defendants who were part of a prison response team Clark identified as the “Ninja Turtles.” Two matters are before the Court at this time: first, in a motion to amend dated January 6, 1998, Clark seeks to add as individual defendants those John Does he has now identified by name; second, the defendants have moved for summary judgment and have opposed the motion to dismiss. For the following reasons, the motion for summary judgment is granted in part and in part denied, and the motion to amend is denied.

And:

At a March 7, 1997 conference, the parties agreed to, and the Court set, a discovery cut-off of October 17, 1997. Through his First Request for Production of Documents, Clark asked for documents that would identify the so-called “Ninja Turtles” by March 28, 1997. Pursuant to this Court’s direction, the defendants supplied — in a May 31 Response that plaintiff’s counsel says he received at latest in mid June — the names of those officers working on the “S.S.T.” team during the relevant shifts.

Of course, this is not the first Federal Court case to mention the Ninja Turtles but I think it is the first time we see “ninja turtles” as a reference to excessive force by a prison response teams. This is similar to previous cases about DEA agents in ninja outfits and masked police accused of excessive force. But here the “ninja turtle” reference applies not only to black attire but also to the riot gear padding and hard helmets of Correctional Emergency Response Teams.

ninja turtles

Previous NinjaLaw cases about Ninja Turtles:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

First mention of Ninja Turtles in F.Ct. where it’s actually about them
Mirage Studios v. Weng et.al. – April 29, 1994

Burger King Kids Club with Mutant Ninja Turtles – multi-ethnic path to Glee and Celebrity Apprentice
CK Company v. Burger King – September 29, 1994

Ninja Turtles again, this time with FASA’s BattleTech, ExoSquad, RoboTech and Playmates
Fasa v. Playmates – June 19, 1995
(WITH POWER RANGERS)

Spam vs Spa’am with Splinter from TMNT and Pumbaa from Lion King
Hormel Foods v. Jim Henson Productions – September 22, 1995

Ring Pops not utilitarian so trademark protects after patent expired
Topps Company v Verburg – December 12, 1996