Incident Prompts State Legislative Hearing

by Jacob Barrett

On December 28, 2021, long-time PLN contributor and jailhouse lawyer Mark Wilson, 52, was released from a 120-day stint in solitary confinement at the Oregon State Correctional Institution (OSCI) prompted by a disciplinary report (DR) over a toy phone left on his desk at the prison law library.

The incident provoked state Rep. Janelle S. Bynum (D-Clackamas), Chair of the Oregon House Judiciary Committee, to hold a hearing on January 11, 2022.

“There was some level of outrage in terms of the length of time Mr. Wilson was segregated,” Bynum said, “and whether there was a case of retaliation and unfair treatment.”

Wilson’s release came just shy of three weeks after his attorneys lost a bid for a temporary restraining order (TRO) to get him out of solitary on December 10, 2021, before a federal judge, Michael H. Simon of the U.S. District Court for the District of Oregon, who reluctantly determined they had named the wrong defendant.

“There is so much here that at a minimum raises serious questions and probably would be enough for a jury to find by circumstantial evidence ... that what really was going on was retaliation against Mr. Wilson,” the judge allowed. “I would be prepared to find, if we have the right defendant, that there is a substantial likelihood of irreparable injury from remaining in disciplinary segregation.”

The TRO motion had been filed along with Wilson’s original §1983 suit against the state Department of Corrections (DOC) on November 4, 2021, alleging officials there violated his free speech and due-process rights when he was placed in administrative segregation at OSCI following a months-long investigation prompted by the toy phone.

The probe was launched on January 19, 2021, six weeks after OSCI administrators received an “anonymous” kite alleging misconduct in the prison’s law library. There they searched and found Wilson was in possession of an “unauthorized toy phone” which an investigator later asserted in a DR had “created a threat to the safety, security, or orderly operations of the facility.”

The investigation shifted attention to the law library’s coordinator, Pam McKinney, who said she left the toy on Wilson’s desk without his knowledge as a joke because he received so many calls from outside attorneys. In a sworn declaration later given to the Court, she wrote that “the phone was mine—it was not given to AIC [adult in custody] Wilson as his own.”

“I pointed out that the phone was a ‘baby phone,’ the kind that has eyes, wheels, and can be pulled as a pull toy,” McKinney added.

She said she put the phone on Wilson’s desk as part of the ‘Oregon Way,’ an evolving DOC practice in which the department encourages an emphasis on ‘normalization.’

McKinney had become known in the facility for the welcoming culture she had created within the library by expanding services and putting up seasonal holiday decorations. At Christmas she even dressed up in a reindeer outfit and brought fake antlers for prisoners to wear while working in the library. At the end of each year the library had a ‘secret Santa’ event for AIC workers.

McKinney attempted to humanize the library further by bringing in goldfish, one of which Wilson had named Fishstix. But guard Cpl. Desiree Torro-Montgomery complained that if prisoners were allowed to have goldfish in the library she should be allowed to have an “emotional support animal.” As a consequence, the fish were removed and replaced with plastic fish hanging from strings in a pitcher.

After the toy phone was discovered, Wilson was told he could not work on any cases in the law library except his own. A long-time prison reform advocate with more than 30 years of legal experience, he had worked in the law library helping prisoners navigate the legal system, including filing and obtaining counsel to represent them in COVID-19 civil suits against DOC.

Meanwhile Jerry Plante, the prison investigator who ultimately wrote Wilson’s DR, continued his investigation, writing later that he reviewed “hundreds of emails” McKinney had sent and received for Wilson between January 2020 and January 2021 from “individuals at an outside justice resource firm.” According to Plante the emails saved Wilson more than $387.40 in copy and postage costs, which he called “detrimental to the prison security.”

Not so, McKinney asserted, both to the Court and to Plante during an interrogation in April 2021. She said her supervisor had approved sending legal documents by email for a prisoner to state agencies and for that reason she allowed Wilson and other library workers to send emails to attorneys as “a matter of practicality and getting things done.” She said she suspected the real motive behind the inquiry into Wilson was retaliation.

“I strongly believe that [DOC] disapproves of...Wilson’s lawsuits and legal actions, and that I am collateral damage,” McKinney said.

Prison officials insisted the issue was the approval she got from her supervisor to let Wilson send the emails. McKinney thought it covered Wilson’s legal work on behalf of himself and other prisoners. But prison officials said it was actually limited to forwarding grievances to DOC’s Department of Administrative Services (DAS) after the COVID-19 pandemic slowed regular mail delivery and threatened the timeliness of filings.

As a result, McKinney said she felt forced to resign, doing so on April 15, 2021, in order to avoid losing matching contributions DOC had made to her retirement account.

After considerable delay, Plante wrapped up his investigation and issued his DR on August 4, 2021, accusing Wilson of breaking prison rules barring contraband—apparently by accepting the toy phone—and also of compromising McKinney by using her email to send and receive legal communication beyond that exchanged with DAS.

At a hearing on August 31, 2021, DOC Hearings Officer Ronnie Foss agreed with Plante’s findings and sentenced Wilson to the maximum penalty, 120 days in administrative segregation. Foss also issued a $100 fine and suspended Wilson’s privileges for 28 days, though those penalties would be canceled if there were no further infractions.

Wilson, who is known as a tireless advocate for prisoners within the facility and throughout DOC, began serving his sentence that day.

“Other legal assistants are afraid to do the kind of work I was doing now because they’re afraid they’ll face what happened to me,” he worried.

His attorneys filed suit and asked for a TRO, seeking to force Plante to rescind his DR, which would negate the sentence Foss handed down and return Wilson back to the general population of OSCI. But Judge Simon agreed with DOC attorneys that Plante was the wrong person to sue, since he lacked authority to directly reverse Foss’ sentence, leading to the filing of an amended complaint the same day, December 10, 2021.

At the hearing before state lawmakers the following month, DOC Director Colette S. Peters attempted to push back against the idea that her guards had singled out Wilson for retaliation.

“With safety and security inside a prison, we have to focus on those small slips in behavior,” Peters insisted. “So while bringing in a phone might seem like child’s play, it is something that’s very serious, and both the employee and the AIC must be held accountable.”

Bobbin Singh, founder and Executive Director of the Oregon Justice Resource Center (OJRC), who represents Wilson in his suit, said Wilson has been a “voice for people inside” to advocate for better treatment and conditions.

Wilson was also a special advisor to OJRC and served as the first prisoner on a 2019 legislative workgroup on prison education. He graduated from the University of Oregon (UO) in June 2019 with a bachelor’s degree and served as a teaching assistant for the UO Inside Out Program. He has been a PLN contributing writer since 2003. See: Wilson v. Plante, USDC (D.Or.), Case No. 6:21-cv-01606-SI. 

Additional source: The Oregonian

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