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Prisoner Education Guide

Prison Legal News: November, 1999

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Volume 10, Number 11

In this issue:

  1. The Cultural Commodification of Prisons (p 1)
  2. New Jersey Guard Wins $3.75 Million Harassment Suit (p 5)
  3. From the Editor (p 6)
  4. New York City Arrestee Awarded $5.02 Million in Strip Search (p 6)
  5. PLN Sues Washington DOC over Censorship of Nazi Guard Exposé (p 7)
  6. California Changes Shooting Policy (p 8)
  7. $7,000 Award to Prisoner Shoved by Guard while Praying (p 8)
  8. No Privacy Rights for Sex Offender Registrants (p 9)
  9. CCPOA Pimping in the California State Assembly (p 9)
  10. Probable Cause Hearing Delay Actionable (p 10)
  11. Ex-Welfare Workers in Georgia Replaced with Prison Slaves (p 11)
  12. California Prison Legal Fund Broke (p 12)
  13. Nevada Guards Party with Inmate Welfare Fund (p 12)
  14. Prison Realty Stock Plummets; Shareholders File Suit (p 13)
  15. Corcoran Bad Apple Rehired (p 13)
  16. New York Retaliation Suit Nets $100,000 in Damages (p 13)
  17. California Governor Vetoes Parole Reform Bill (p 14)
  18. California Illegally Dumps Parole Records (p 14)
  19. Suicides at Connecticut Prison Raise Concerns about Mental Health Care (p 14)
  20. Prisoner Strip Search Warrants Fourth Amendment Analysis (p 15)
  21. Amended Complaint Filed Outside Limitations Period Relates Back (p 16)
  22. A Guide to the Prison Litigation Reform Act, by John Boston (Review) (p 16)
  23. California Visits Reinstated after Food Boycott (Letter) (p 16)
  24. $100,000 Settlement in South Carolina Jail Death (p 17)
  25. Heck Not Applicable to Ad Seg; Only "Available" Exhaustion Required (p 17)
  26. Retaliatory Acts Need Not "Shock the Conscience" to be Actionable (p 18)
  27. Sheriff Liable for Inadequate Staffing and Refusing Medical Treatment to Assaulted Prisoner (p 20)
  28. Second Circuit Discusses Heck and Edwards (p 21)
  29. Evidentiary Hearing Allowed in PLRA Consent Decree Terminations (p 22)
  30. West Virginia Supreme Court Upholds Computer Ban (p 22)
  31. Washington Felony Infraction Law Struck Down (p 23)
  32. Request for Telephonic Appearance Must Be Considered (p 24)
  33. BOP Violates Due Process in Ad-Seg, Transfer and Mail Suit (p 24)
  34. Trial Required in Jail Attack (p 25)
  35. Race Discrimination Claim Not Barred by PLRA Physical Injury Rule (p 25)
  36. News in Brief (p 26)
  37. PLRA Attorney Fee Cap Not Retroactive in Attorney Client Case (p 28)
  38. PLRA Attorney Fee Provision Not Retroactive in Jail Conditions Suit (p 28)

The Cultural Commodification of Prisons

Pop culture is about acculturation more than it is about culture. It is about defining the norms and parameters of society. Over one hundred years ago Karl Marx wrote about capitalism's ability to turn everything into a commodity. Commodities are items, whether goods or ideas, which can be bought and sold. In his day, Marx observed that capitalism had converted labor, raw materials, manufactured goods, even sex, into commodities and that traders and merchants had eagerly made a fetish out of the commodities themselves.

By the mid twentieth century a mass consumer culture had evolved which was capable of commodifying much more than Marx had ever envisioned in his day. By the 1950's, abstract ideas like lifestyle and art were marketed and sold as pop culture. Hugh Hefner sold the Playboy idea of the suave, cultured, swinging bachelor. Benjamin "Bugsy" Siegal sold the Las Vegas idea that anyone could strike it rich at the gaming tables. Jack Kerouac helped create the Beatnik culture. Hollywood contributed, with the likes of James Dean and Marlon Brando, the individualistic, albeit apolitical, social rebel. After all, a rebel without a political cause is hardly a threat to the status quo.

Probably the ...

New Jersey Guard Wins $3.75 Million Harassment Suit

On May 27, 1999, a Burlington county jury in New Jersey ruled in favor of prison guard Robert Lockley Jr. and awarded him $3.75 million in damages. Lockley, 39, a guard at the Mid State Correctional Facility in Ft. Dix, New Jersey, filed suit claiming fellow guard Ronda Turner ...

From the Editor

Greetings and welcome to another edition of PLN. Five years ago my first editorial appeared in the October 1994 issue. Sadly, this will be my last. I am stepping down as co-editor, but will remain active with the PLN collective as a contributing writer.

In 1994 I was caged in the cell next to Paul Wright's. Collaboration was relatively easy then; we could holler at each other any time we wanted. Once or twice a month we'd haul our file folders down to the day room and have an editorial meeting.

In August of 1995 I was transferred to a prison across the road. Though we could no longer meet face to face, collaboration was still possible through daily correspondence. My outgoing morning mail would reach Paul that afternoon; I'd get his response the next day. And since the mail was intra-institutional, there was no postage. The daily correspondence was cumbersome, but we did what we had to do to keep things rolling along relatively smoothly.

In January 1999 the situation changed. The WA DOC instituted strict mail policies which (among other restrictions) banned "inmate to inmate" correspondence. Paul and I have continued to "Co"-Edit PLN ...

New York City Arrestee Awarded $5.02 Million in Strip Search

On May 6, 1999, a federal jury in Manhattan awarded $19,600 in compensatory damages and $5 million in punitive damages to an arrestee who was strip searched in a New York City jail. In 1997 Debra Ciraolo, 43, an interpreter for the hearing impaired, was arrested after a domestic ...

PLN Sues Washington DOC over Censorship of Nazi Guard Exposé

PLN Sues Washington DOC over Censorship of Nazi Guard Exposé

On August 27, 1999, Prison Legal News filed suit in federal court in Spokane, Washington, seeking a court injunction to ensure the delivery of the May, 1999, issue of PLN to its Washington prisoner readers. The May, 1999, issue of PLN had an investigative expose by Jennifer Vogel titled "White Guard, Black Guard: Racism in Washington Continues." The article documents the fact that the Washington Department of Corrections (DOC) employs violent Nazis, members of the Ku Klux Klan and other assorted white supremacists who regularly taunt, abuse, harass and threaten with violence minority prisoners and staff members alike. [The complete article is available on PLN's web site at: www.prisonlegalnews.org, or send $5 for the complete issue to PLN.]

The May, 1999 issue of PLN was censored in all Washington state prisons on the orders of Eldon Vail, the deputy assistant director of the Washington DOC. The censorship affects about 100 Washington prisoners who subscribe to PLN. Various reasons given for the censorship include the orwellian claim that the article itself is "racist" for exposing racism within the DOC, that it advocates "racial inferiority" and is a "threat ...

California Changes Shooting Policy

by W. Wisely

In the past ten years, California prison guards have shot and killed 39 prisoners, wounding over 200, with high powered rifles. Nearly all of the shootings involved attempts to break up unarmed fist fights--- a practice unique among all other prison systems in the nation. After a series of scathing articles in the Los Angeles Times and other publications, state legislative hearings, and the Federal indictment of eight guards, the department of corrections is changing its shooting policy.

"In the vast majority of cases in California, there's really no excuse for shooting. It's just the way [guards have] been trained," Lanson Newsome, former commissioner of Georgia's prison system, told the San Francisco Examiner. Pointing to a decline in the number of shootings in the wake of relentless media coverage of the staged fights at Corcoran prison, state corrections director Cal Terhune said, "I am very pleased in the direction that it's gone. We're going to continue to push, through alternatives and training, to really make the use of lethal force the absolute minimum, as a last resort."

The policy in California's maximum security prisons prior to 1994 allowed guards to shoot ...

$7,000 Award to Prisoner Shoved by Guard while Praying

$7,000 Award to Prisoner Shoved by Guard While Praying

A federal district court in New York has awarded $7,000 in damages to a muslim prisoner who, while he was praying, was shoved from behind by a guard.

Generoso Arroyo Lopez, a New York state prisoner, filed suit pursuant ...

No Privacy Rights for Sex Offender Registrants

The Third Circuit ruled that sex offenders required to register under "Megan's Law" have no protected right to privacy that would render unconstitutional the public dissemination of such information.

This is not the first time the 3rd Circuit has upheld Megan's Law. In E.B. v. Verniero, 119 F.3d 1077 (3rd Cir. 1997) (PLN April 1999], the 3rd Circuit rejected claims that New Jersey's sex offender registration statute (aka Megan's Law) violate the Double Jeopardy Clause or Ex Post Facto Clause of the U.S. Constitution That holding was predicated on the conclusion that Megan's Law does not constitute "punishment".

The plaintiff in this case, identified only as Paul P., sued on behalf of a class of all sex offenders required to register under Megan's Law, claiming that the statutory requirement that class members provide "extensive information to local law enforcement personnel, including each registrant's current biographical data, physical description, home address, place of employment, schooling, and a description and license plate number of the registrant's vehicle, and the subsequent community notification is a violation of their constitutionally protected right to privacy."

The court provides an extensive overview of the "right ...

CCPOA Pimping in the California State Assembly

A self-proclaimed "whore" for the California Correctional Peace Officers Association (CCPOA) in July 1999 helped kill Attorney General Bill Lockyer's proposed legislation for forming a state-level prosecutorial unit to investigate alleged crimes by state prison guards.

As it stands now, only local district attorneys (or U.S. Attorneys for federal crimes) conduct investigations when prison guards are charged with brutality or other crimes. According to the LA Times, in the last ten years not one local D.A. has successfully prosecuted a California prison guard; this in a period when 39 prisoners were shot dead and another 200 or so wounded by prison guards.

Lockyer introduced the legislation because local DA's are afraid to incur the wrath of the CCPOA. Former Kings County District Attorney Donald Strickland knows about the sting of CCPOA retribution. Strickland, who once prosecuted a prison guard for misconduct, found himself voted out of a job after the CCPOA spent $27,000 distributing campaign flyers denouncing him as a "friend of prison gangs." [See: "Corcoran Prison Sex, Lies and Videotape" PLN, Oct. 1998]

"The CCPOA torpedoed this [legislation]," Lockyer told the Times. "One of the assemblymen who voted against it, Jim Battin, pulled me ...

Probable Cause Hearing Delay Actionable

The court of appeals for the Seventh circuit held that the fact issue as to whether an arrestee's detention without a probable cause hearing resulted from the sheriff's deliberate decision not to monitor detainees brought to jail by outside agencies precluded summary judgement for the sheriff on an official capacity claim. However, the court also held that the sheriff could not be held liable in his individual capacity.

On December 22, 1993, 18 year old Billy Luck was arrested by Indiana State Trooper Thomas Littlefield after admitting to Littlefield that he had been involved in some recent thefts. Luck was transported to the Kosiusko County Jail, where Trooper Littlefield relinquished custody of Luck to the authority of Sheriff Rovenstine.

Luck was processed into the jail on a charge of felony theft, where he languished for eight days without a probable cause hearing. On day eight, Sheriff Rovenstine was informed that Luck had been detained for eight days on the basis of a warrantless arrest without being brought before a judge or magistrate for a probable cause hearing. After Sheriff Rovenstine contacted the Kosciusko County Prosecutor's office, he was directed to release Luck, who was then released the ...

Ex-Welfare Workers in Georgia Replaced with Prison Slaves

To save money, a South Georgia recycling plant fired 50 trash sorters, including 35 who had taken jobs to get off welfare, and replaced them with prison slave labor. The former welfare clients had been earning $5.20/ hour before they were laid off in December, 1998 because the "waste stream" was not what had been predicted.

Four months later 36 female prisoners from the Pulaski State Prison in Hawkinsville, GA, began working, unpaid, at the recycling plant 8 hours/ day, 5 days/ week, sorting recyclables from garbage trucked in from dozens of nearby towns and counties.

State law prohibits prisoners' taking the place of paid employees and allows prisoners to work only for state, county or local governments. That law was circumvented with some tricky bookkeeping: Although the recycling plant is operated by the Atlanta-based Environmental Technologies Group (ETG), a private, profit making business, its workers' wages are paid by the Crisp County Solid Waste Management Authority, a government entity.

Chip Wells, board Chairman of the Crisp County Solid Waste Management Authority told the Atlanta Journal- Constitution that ETG, the private contractor, has complete control over who is hired, fired or promoted. When asked if the county paid workers ...

California Prison Legal Fund Broke

by W. Wisely

The California Department of Corrections' $15.5 million legal settlement fund went broke in late March, 1999, three months before the end of the fiscal year, according to an article by Pam Podger in the May 27, 1999, edition of The San Francisco Chronicle Steve Fama, a staff attorney at the Prison Law Office in the shadow of San Quentin, told the Chronicle he wasn't surprised the department exhausted its fund in settlements and judgments arising out of the many cases of abuse and brutality against prisoners, as well as, inadequate medical and mental health care.

"It is the inevitable result of years of bad policy and neglect of prisoners," Fama said. "I think the department still has substantial exposure to successful legal action in the area of medical and mental health care." The department paid cash settlements or judgments in 113 cases so far this year. Eight-five of the cases were filed by prisoners with the rest filed by staff or contractors.

Newly elected Democratic Governor Gray Davis proposed doubling the department's settlement fund to $28.8 million next year. Cal Terhune, the department's director, projects the total needed for legal settlements in ...

Nevada Guards Party with Inmate Welfare Fund

The Nevada state legislature made a bold move to "end inmate welfare as we know it" when it passed a bill (AB289) in 1999 stating that revenue from state prisons' Inmate Welfare Fund (IWF) can be used for employee perks. But the law breaks no new ground, rather it makes legal a diversion of IWF money that was already common practice.

In 1992 the Nevada State Prison Board, made up of the governor, attorney general and secretary of state, changed the administrative rules governing the use of IWF money away from prisoners and into staff Christmas parties, summer picnics and other employee benefits.

Money for the IWF comes from visiting room vending machine sales and a markup on prison commissary purchases [in many states prisoner telephone calls are another IWF revenue source]. In other words, the IWF is a regressive sales tax levied against prisoners, their families and visitors.

IWF money was originally intended for buying books for prison law libraries, recreational equipment, and other expenditures to benefit prisoners. In Nevada IWF money has been used to pay for microwaves and refrigerators for guards at their posts, flowers for funerals of deceased prison guards and plaques for retirees.

In early ...

Prison Realty Stock Plummets; Shareholders File Suit

Last May the price of shares in Prison Realty Trust Inc., the parent company of Corrections Corporation of America, fell almost 35% within a week after Prison Realty announced it would pay increased costs for building and marketing private prisons. Several investment firms downgraded Prison Realty's stock, which dropped to a 52 week low from a high of about $22 per share.

On May 14, 1999, company officials said Prison Realty will pay $4,000 per bed in incentive fees to CCA, its main tenant for new facilities -- up from a previous fee of $840 per bed. The increase, which was made retroactive to January 1, will cost Prison Realty shareholders an estimated $80 million in 1999 alone.

According to Prison Realty chairman and CEO Doctor R. Crants, the company also will pay 4.5% of the cost of each facility to CCA in business development expenses. Further, a 5% fee paid to CCA for capital expenditures has been doubled. Prison Realty officials did not mention the elevated costs in a May 5 first quarter earnings statement even though the company's board had approved the increases the day before.

Prison Realty, a real estate investment trust (REIT), distributes ...

Corcoran Bad Apple Rehired

by W. Wisely

Bruce Farris, the former Corcoran State Prison associate warden fired for allowing guards to beat, kick, and stomp 36 black prisoners, was reinstated April 6, 1999, in a rare Personnel Board reversal of an earlier administrative judge's decision. Farris was fired after the busload of East Coast Crips, transferred from Calapatria, arrived at the notorious Security Housing Unit June 21, 1995.

Steve Rigg, the former Corcoran lieutenant who blew the whistle on staged fights between rival prisoners, illegal shootings, and official cover-ups to the FBI, has been forced to retire because the department failed to protect him or his family from harassment and threats by guards and prison officials. Senate Majority Leader Richard Polanco, D-Los Angeles, called it, "unbelievable" that Rigg remains in limbo while Farris has been rehired, according to the San Francisco Chronicle.

Farris was rehired as associate warden at High Desert State Prison in Susanville, California. His appointment is "very, very consistent with the department's thumbscrew mentality," Leroy Lounibos, Jr., one of Rigg's attorneys told the Chronicle "It is a mentality that grinds up the heroes and honors the scoundrels. It degrades and demoralizes the good people in the prison system."

New York Retaliation Suit Nets $100,000 in Damages

On April 28, 1999 a federal jury awarded $25,000 in compensatory damages and $75,000 in punitive damages to New York prisoner Ronald Maurer.

Three years earlier Maurer filed a pro se complaint claiming that he had been subjected to retaliation for trying to expose corruption at Sing Sing ...

California Governor Vetoes Parole Reform Bill

California Governor Gray Davis vetoed a bill that would have diverted "low-risk" parole violators into community-based programs rather than send them back through a "revolving door" to an already overcrowded state prison system.

Some critics call the veto quid pro quo for the $2 million donated to Davis' campaign last year by the California Correctional Peace Officers Association (CCPOA), which represents California prison guards. Davis said the parole reform bill "could result in the implementation of unproven intermediate sanctions for parole violators, potentially posing a danger to public safety," the Fresno Bee reported.

The state would have established programs to try "intermediate sanctions" for low risk parole violators. It also would have set up community-based drug treatment and counseling, daytime check-in centers and home detention with electronic monitoring.

Nonpartisan groups, including the Little Hoover Commission and a commission dominated by law enforcement officials, had recommended restructuring of the state's parole system for low-risk offenders to reduce recidivism, lower prison costs, and relieve the demand for new prison construction created by an already overwhelmingly overcrowded prison system.

New state prisons, of course, would create more CCPOA jobs, more CCPOA dues, and more advancement and promotion opportunities for CCPOA member guards ...

California Illegally Dumps Parole Records

by W. Wisely

California Department of Corrections prisoncrats were caught illegally dumping confidential documents about parolees in a dumpster near the new Metreon entertainment center in San Francisco, according to Michael Taylor's June 19, 1999 article in the San Francisco Chronicle. Some papers, including arrest reports, and new addresses for parolees, were scattered among crowds of tourists by a strong wind.

One file was a week-old police teletype "notice of arrest." The notice mentioned detailed personal and confidential information, including birth date, and prison identification numbers, for a parolee named Eric. Kenny, according to another of the thousands of documents discarded against the department's regulations, had a parole violation for robbing an adult bookstore and testing positive for cocaine. Ronald's residence verification gave away his current address, and Neal had absconded on parole the documents showed, according to the Chronicle.

The files were dumped by employees at the department's Parole and Community Services Division. That division, which coordinates parole information, was in the process of moving, so staff just lightened the load. "Jesus Christ," Steve Schroeder, the division's regional manager, told the Chronicle, when he learned of the document dumping, "I hate to hear that ...

Suicides at Connecticut Prison Raise Concerns about Mental Health Care

Suicides at Connecticut Prison Raise Concerns About Mental Health Care

In unrelated incidents, two women prisoners at the York Corr. Institution in East Lyme, Connecticut committed suicide within a ten-day period in March, 1999.

Linda Hogan was found hanging in her cell on March 11 and died the next day. On March 21, 1999, Bobbi-Jo Garcia hung herself with a bed sheet; she had been placed in the prison's medical unit the day before based on a psychological assessment, and was supposed to be under close observation.

Soon after the suicides, five employees with the University of Connecticut Health Center, which provides medical services at the York prison, were suspended or reassigned. The two deaths also resulted in a review of Dept. of Corrections policies related to prisoner classification and staff training.

On March 26 the supervisor of mental health services at the York facility, Karen M. Graf, quit. "It is simply not possible with the existing number of staff hours available to provide adequate mental health assessments ... and to ensure that [prisoners] with mental health needs receive the necessary mental health intervention," she wrote in a memo to Ken Parker, the CEO of Univ. of Connecticut Correctional Managed ...

Prisoner Strip Search Warrants Fourth Amendment Analysis

The court of appeals for the Fifth circuit held that a prisoner's Fourth Amendment claim alleging unreasonable multiple strip searches performed on him by a female guard were not frivolous, as would warrant dismissal under the PLRA. The court also held that the Fourth Amendment, rather than the Eighth Amendment, applies to this type of prisoner search when analyzing it in the Fifth circuit.

Jimmy Ray Moore, a Texas state prisoner at the Beto Unit, filed a 42 U.S.C. § 1983 civil rights action "against prison officials alleging that multiple strip and body cavity searches performed by a female officer violated his First Amendment right to free exercise of religion, Fourth Amendment right to be free from unreasonable searches and seizures, and his Eighth Amendment right to be free from cruel and unusual punishment."

Moore alleged that in 1996 Barbara Carwell, a TDCJ-ID prison guard, performed strip and body cavity searches on him. At the time of the searches there were several male guards present and directing the activity. Moore claimed "that the sole purpose of the searches was to harass and intimidate him."

The magistrate judge dismissed Moore's claims as frivolous under 28 U.S.C ...

Amended Complaint Filed Outside Limitations Period Relates Back

A federal district court in Michigan held that an amended complaint using proper names for "John Doe" defendants, filed outside the statute of limitations was not untimely because the claims related back to the original complaint. The court also held that a genuine issue of material fact as to whether guards were deliberately indifferent in failing to prevent assault by other prisoners precluded summary judgment.

Derrick Daily was confined in the Wayne County Jail when he was alleged assaulted by fellow prisoners on November 8, 1994. On November 7, 1997, he brought suit against jail officials and guards for failing to protect him from the assault. Daily named eight "John Doe" defendants in his original complaint but promptly amended the complaint upon learning the identities of those parties.

Defendants moved for summary judgment, arguing that Daily's claims against the newly named defendants were barred by the statute of limitations and that he failed to present an issue of material fact with respect to any of his claims.

The court noted that the statute of limitations for civil rights claims in Michigan is three years, Carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir. 7986); and Wilson v. Garcia ...

A Guide to the Prison Litigation Reform Act, by John Boston (Review)

Review by Paul Wright

The passage of the Prison Litigation Reform Act (PLRA) in 1996 has significantly changed many aspects of prison and jail litigation. The PLRA makes it increasingly difficult for prisoner plaintiffs to achieve meaningful or significant relief in the courts, either in the way of damages or injunctive relief. Institutional reform litigation is virtually a dead letter as a result. That said, an understanding of the PLRA as applied and interpreted by the courts is absolutely essential for anyone litigating a prison or jail suit in federal court.

John Boston is one of the foremost authorities on prison and jail litigation in America today. He heads the prisoners' rights project of the New York City Legal Aid Society and is the co-author of the Prisoners Self Help Litigation Manual.

Boston has authored A Guide to the PLRA. This 70 page booklet gives the most detailed, comprehensive overview of the PLRA and the published and unpublished court rulings interpreting it available in print anywhere.

The Guide discusses and analyzes each and every provision of the PLRA. This includes: limits on attorney fee awards, consent decree and injunction termination, administrative exhaustion, three strikes, special masters, emotional and mental injury ...

California Visits Reinstated after Food Boycott (Letter)

D.R., Vacaville, CA.


On December 17, 1998, an attempted homicide occurred in building 7 of Facility II of the Solano State Prison in Vacaville, California.

The incident involved two white prisoners who were celled together. All white prisoners were immediately placed on lock down and their visits were terminated. This included visits behind glass.

The following week we were still on lockdown with no visits. Christmas was just a few days away. The prisoners involved in the original incident were in the hole. In order to regain their visits white prisoners staged a food boycott by refusing to allow guards to place food trays in their cells. The very next day visits for white prisoners were reinstated.

This is a new trend in California since visiting was removed from the Inmate Bill of Rights. Prison administrators are now trying to just eliminate visits altogether whenever an incident occurs. It isn't right, but it's on prisoners here to struggle together and change these draconian policies.

$100,000 Settlement in South Carolina Jail Death

On May 12, 1999, Spartanburg county in South Carolina announced it would pay $100,000 to settle a wrongful death suit filed by the estate of a prisoner. On June 7, 1998, John Pruitt, a detainee in the Spartanburg county jail, collapsed and died of a heart attack. Five hours ...

Heck Not Applicable to Ad Seg; Only "Available" Exhaustion Required

Heck Not Applicable to Ad Seg; Only "Available" Exhaustion Required

A federal district court in California held that the principles of Heck v. Humphrey, 512 U.S. 477 (1994), do not apply to claims that do not involve deprivation of good-time credits. The court further held that purely monetary claims do not require exhaustion of administrative remedies.

On April 17, 1997, a guard found an exacto blade hidden in a tobacco can in Patrick York's prison cell. As a result, York was placed in administrative confinement (ad seg) for an unspecified period of time. Exactly one year later, York filed a nebulous civil rights complaint alleging a violation of his "due process Miranda rights."

The defendants moved for dismissal on two grounds. First, they assert that York's claim was not cognizable because the disciplinary finding had not been invalidated. Second, they contend that York's claim was barred because he failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act (PLRA).

Analyzing the defendants' motion under the standard of review for Fed.R.Civ.P. 12(b)(6), the magistrate found that in Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court ...

Retaliatory Acts Need Not "Shock the Conscience" to be Actionable

by Matthew T. Clarke

The Sixth Circuit court of appeals, sitting en banc, has held that prisoners who claim retaliation for constitutionally protected activities are no longer required to prove the retaliatory acts "shock the conscience." Instead, they must prove that the retaliatory act would be sufficient to deter a person of ordinary firmness.

This is an appeal of a summary judgment dismissal. Therefore, the facts are presented in the interpretation most favorable to the prisoners.

Earnest Bell and Thaddeus-X are Michigan state prisoners confined in administrative segregation. X signed a "Legal Assistance Request and Agreement," approved by prison officials, agreeing to assist Bell in all legal concerns. X assisted Bell and other prisoners on a daily basis and prison guards assisted in the transfer of legal documents.

After X helped Bell file a lawsuit naming Michigan Department of Corrections (MDOC) officials as defendants, the guards began a campaign of harassment against Bell and X. They refused to pass legal materials between them and refused to give them pens and paper, despite having been shown the legal agreement.

A guard told X he was going to be harassed and moved "to base," the lowest floor of administrative segregation and the ...

Sheriff Liable for Inadequate Staffing and Refusing Medical Treatment to Assaulted Prisoner

The Tenth Circuit court of appeals held that a sheriff may be liable for insufficient jail staffing and refusing medical treatment to a prisoner who was beaten by other prisoners.

Genaro Lopez was a prisoner in the Jackson County Oklahoma jail. The day he arrived at the jail and was placed in general population, another prisoner, who accused him of messing around with the other prisoner's sister and mother, poked him in the stomach with a broom, spit on him, and threatened to kill him. He reported this to a jailer, who took him to an office to make a statement.

Lopez told the jailer he was afraid the other prisoners would assault him if he returned to the same cell. Nonetheless, he was returned to the same cell. He was beaten and kicked by four other prisoners within minutes. The jailer returned about ten minutes later and Lopez asked to be taken to a hospital. The jailer removed Lopez from the cell, took him to an office, and placed a telephone call. The jailer then told Lopez he could not take Lopez to the hospital unless he was unconscious and moved him to another cell, giving him some ...

Second Circuit Discusses Heck and Edwards

No Bar to Prisoners Challenging Condition, not Duration, of Disciplinary Confinement


The Second Circuit court of appeals has held that prisoners who have no recourse under the federal habeas corpus statute may file a federal civil rights suit challenging their conditions of confinement due to prison disciplinary or administrative action.

Eric Jenkins, a New York state prisoner, filed a civil rights suit under 42 U.S.C. § 1983, claiming that a guard violated his constitutional right to procedural due process in two prison disciplinary hearings. The district court dismissed the suit, dismissing the claim based on the second hearing as being barred by Edwards v. Balisok, 520 U.S. 641 (1997) and Heck v. Humphrey, 512 U.S. 477 (1994). Jenkins appealed only the claim based on the second hearing.

Accepting all of the facts alleged in the complaint as true, the court determined that the sole issue was whether a prisoner was barred by Heck and Edwards from alleging, in a § 1983 suit, a constitutional violation arising out of disciplinary sanctions that do not affect his length of confinement. The court then conducted a lengthy, well-reasoned analysis of the law on that issue.

In Heck, a prisoner filed a ...

Evidentiary Hearing Allowed in PLRA Consent Decree Terminations

The court of appeals for the Fourth circuit reaffirmed that the Prison Litigation Reform Act's (PLRA) consent decree termination provisions are constitutional and also held that the PLRA provides no avenue for district courts to make after the fact findings to avoid termination. The court held that the state prison official defendants did not waive their rights under the PLRA by entering into the consent decree. The court did however hold that prisoner plaintiffs are entitled to an evidentiary hearing to avoid termination of consent decrees if they allege facts that, if true, would show an ongoing constitutional violation at the prison.

In 1981 Virginia prisoners at the Powhatan Correctional Center (PCC) entered into an extensive consent decree with the prison's officials. The decree governed a wide variety of conditions of confinement at PCC and settled a class action suit on those conditions. After the PLRA's 1996 enactment, the defendants moved to terminate the consent decree under 18 U.S.C. § 3626(b)(2). The district court refused to hold an evidentiary hearing as requested by the prisoner plaintiffs and terminated the decree. The court of appeals affirmed.

The appeals court refused to entertain a challenge to ...

West Virginia Supreme Court Upholds Computer Ban

In the February, 1998, issue of PLN we reported that the West Virginia Department of Corrections (DOC) had prohibited its prisoners from having personal computers in their cells. In the previous decade West Virginia, New Jersey, Wyoming, Alaska and a prison in Washington had allowed prisoners to own personal computers. As part of the national "get tough on prisoners" trend, all of the prisons have eliminated their prison computer programs. West Virginia was the last to do so.

Initially, the West Virginia DOC took the computers of two jailhouse lawyer prisoners who were using the computers to litigate cases against the DOC. The prisoners claimed their computers were seized in retaliation for their legal activities. In a settlement, the computers were returned. The West Virginia DOC then made good on a threat it had made during the settlement negotiations and ordered the removal of all prisoner owned computers from its prison system.

Several prisoners then filed suit in state court asserting various claims for relief. All the petitions were denied at the trial court level and consolidated and heard together by the West Virginia supreme court, which affirmed.

The court held that since prisoners have no right to typewriters, they ...

Washington Felony Infraction Law Struck Down

A Washington state appeals court held that a state law allowing the felony prosecution of prisoners who are infracted in prison after having lost all good time credits violates the state constitution. The court also suggested that all Washington DOC infractions issued after 1995 may be invalid.

In 1995 the Washington legislature enacted RCW 9.94.070 as part of HB 2010, its massive prisoner bashing bill of that year. [PLN, Aug. 1995] RCW 9.94.070 states: "(I) An inmate of a state correctional institution who is serving a sentence for an offense committed on or after August 1, 1995, commits the crime of persistent prison misbehavior if the inmate knowingly commits a serious nfraction, that does not constitute a class A or class B felony, after losing all potential earned early release time credit.

"(2) Serious infraction means misconduct that has been designated as a serious infraction by Department of Correction rules adopted under RCW 72.09.130."

In 1995 the legislature also enacted RCW 72.09.130 which required the DOC to create "a system that clearly links an inmate's behavior and participation in available education and work programs with the receipt or denial of earned ...

Request for Telephonic Appearance Must Be Considered

The Idaho Court of Appeals held that a prisoner's due process rights were violated when a magistrate failed to consider his request to appear telephonically in a child support action.

In April, 1997, the Idaho Bureau of Child Support (Bureau) brought an action for the collection of child support against Roy Garcia, a prisoner of the Idaho Department of Corrections who was incarcerated in Texas at the time.

Garcia filed an answer to the complaint and a trial date was set for July 10, 1997. On June 9, 1997, Garcia filed a motion to appear at the trial telephonically, citing the impossibility of appearing in person while imprisoned in Texas.

On July 8, 1997, a magistrate informed Garcia by letter that no action had been or would be taken on the motion because Garcia failed to request a hearing on the motion. A court trial was conducted on July 10, 1997, without Garcia's participation.

The magistrate entered a judgment against Garcia, ordering that he pay child support at a rate of $50 per month, per child, during his incarceration and at a rate of $231 per month beginning thirty days after his release from prison.

Garcia appealed to ...

BOP Violates Due Process in Ad-Seg, Transfer and Mail Suit

A federal district court in Illinois held that the Bureau of Prisons (BOP) violated a prisoner's right to due process when it placed him in administrative segregation (ad seg), transferred him to a different prison and denied him the ability to correspond with his son, who is also a prisoner, without affording him a hearing or telling him of the allegations against him.

Mahfooz Rizvi is a federal prisoner. He was imprisoned with his son at FCI Safford in Arizona when the BOP claimed Rizvi and his son were plotting to escape. They were placed in ad seg, taken to the local jail, then moved to a different BOP prison where he spent two more months in ad seg, all without being told why he was in ad seg and being transferred. Only when he sought, and was denied, permission to correspond with his son was Rizvi told he was accused of attempting to escape from FCI Safford, an accusation Rizvi denies. Rizvi filed a petition for habeas corpus under 28 U.S.C. § 2241, which the court granted.

The court held that under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974) procedural due process ...

Trial Required in Jail Attack

A federal district court in New York held that a trial was required to resolve disputed issues of material fact where a jail guard was accused of assaulting a detainee. The court also held that the county could not be held liable for a single incident of violence by one of its employees.

Eugene Baker was a pretrial detainee in the Warren county jail in Lake George, New York. Sheldon Willett, a 260 pound jail guard, was called "fatboy" and told to move on by an unidentified prisoner after standing in front of the unit television set. Willett then stopped in front of Baker who told Willett, "Keep moving fatboy." Willett later hit Baker in the back, while Baker was not looking. As a result, Baker fell off the table he was sitting on and struck his head on cell bars, suffering a laceration that required stitches.

Baker filed suit against Willett, the sheriff and the county claiming that Willett's assault violated his constitutional rights. The defendants moved for summary judgment, which the court granted in part and denied in part.

The court rejected the defendants' claim that Baker's injuries were insufficient to state a constitutional claim. The ...

Race Discrimination Claim Not Barred by PLRA Physical Injury Rule

A federal district court in Missouri held that the physical injury rule of the Prison Litigation Reform Act (PLRA) applied only to Eighth amendment claims and did not apply to a prisoner's equal protection claim of racial discrimination. The court's ruling is one of the most comprehensive discussions of the constitutionality and application of the PLRA's physical injury rule to date.

Avery Mason, a Missouri state prisoner, filed suit under 42 U.S.C. § 1985(3) claiming prison officials used race based considerations in making prison housing assignments. The defendants sought summary judgment on various grounds, which the court granted in part and denied in part.

The court held that the prison warden and the Department of Corrections (DOC) director were aware of the practice of race based housing assignments because the practice was embodied in Missouri DOC policy. Because Mason had complained about his cell assignment he did not acquiesce to the discrimination.

The court held that Mason had adequately alleged discriminatory intent by the defendants. "The court finds that where a particular governmental policy is race based, plaintiff has made a prima facie showing of a discriminatory intent .... Here, plaintiff alleges a suspect classification, race ...

News in Brief

Brazil: In early August four men armed with automatic weapons overpowered guards and broke into the Tremembe jail near Sao Paulo, and stole money that jail prisoners were planning to send home.

CA: In 1998 15 state prisoners were killed. Three were shot to death by guards, 12 were killed by other prisoners. Sixteen California prisoners were killed in 1997, the highest murder toll since 20 were killed in 1987. The 1998 deaths occurred at eight prisons: 3 each at Pelican Bay, High Desert in Susanville and New Folsom; 2 at Salinas Valley and one each at Corcoran, Vacaville, Calipatria and Pleasant Valley.

CA: On June 7, 1999, Orange county deputy district attorney Bryan Kazarian was charged in federal court on methamphetamine conspiracy charges. FBI agents claim Kazarian passed on secret information about ongoing investigations to local Hell's Angels drug traffickers. Prior to his arrest, Kazarian was a member of the district attorney's "gang prosecution" unit.

CA: On May 28, 1999, Bradley Gardner, 42, a vocational instructor at the California Youth Authority prison in Camarillo, was arraigned on four counts of having oral sex with two 17 year old female prisoners. Gardner was freed on $20,000 bond ...

PLRA Attorney Fee Cap Not Retroactive in Attorney Client Case

A federal district court in Colorado has held that the attorney fee cap in the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d) does not apply to attorney fees accrued prior to the enactment of the PLRA, but does apply to fees accrued after the enactment date ...

PLRA Attorney Fee Provision Not Retroactive in Jail Conditions Suit

The court of appeals for the DC Circuit held that the Prison Litigation Reform Act (PRLA) provision, which caps attorney fee awards, applies to work performed after the act's effective date (April 26, 1996), even when the suit was commenced before then.

This case involves consolidated appeals in two class actions originally filed in 1971, challenging the unconstitutional conditions in the District of Columbia's jail. The attorneys in this case litigated pro bono for more than a decade because, at the time, 42 U.S.C. § 1983 did not apply to the District. However, in 1979, Publ. No. 96-170 amended § 1983 to include the District, and previously, Hutto v. Finney, 437 U.S. 678 (1978), held that 42 U.S.C. § 1988 (the attorney fee provision) was remedial and retroactive.

In 1985, the prisoners amended their complaints to include § 1983 claims, and a demand for attorney fees under § 1988. Three years later, the district court awarded the prisoners' attorneys compensation "at market rates," and the District made multiple payments.

Although injunctive relief was granted long before the enactment of the PLRA, the District was utterly recalcitrant in complying with the court ordered reforms. As a result, the prisoners ...

 

Federal Prison Handbook

 



 

Disciplinary Self-Help Litigation Manual

 



 

Federal Prison Handbook

 



 


 

Disciplinary Self-Help Litigation Manual