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Prisoner Education Guide

Prison Legal News: December, 1999

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Volume 10, Number 12

In this issue:

  1. Wackenhut's Woes: Guard Killed in New Mexico Riot; Prisoners Exiled to Virginia Supermax (p 1)
  2. From the Editor (p 3)
  3. Pro Se Tips and Tactics (Civil Appeals) (p 4)
  4. Beaten Attica Prisoner Awarded $70,000 (p 5)
  5. Lockdown America: Police and Prisons in the Age of Crisis, by Christian Parenti (Review) (p 6)
  6. Maximum Security University, edited by Tom Quinn (Book and Video Review) (p 8)
  7. CDC Settles Corcoran Shooting Suit for $2.2 Million (p 9)
  8. Notes from the Unrepenitentiary (p 10)
  9. CSC Cancels Florida Juvenile Facility Contract (p 11)
  10. Stanford University Tests Drugs on Imprisoned Juveniles (p 11)
  11. Ninth Circuit Vacates Previous Opinion Ruling PLRA's Provision Unconstitutional (p 12)
  12. Virginia Juvenile Dies of Accidental Heart Attack (p 12)
  13. Tennessee Prison Guard to Pay $50,000 for Stabbing (p 13)
  14. Pelican Bay Guard Indicted in Shooting (p 13)
  15. 1999 Washington State Legislative Roundup (p 14)
  16. Arizona Can't Seize All Prison Labor Back Wages (p 15)
  17. Riots Rock CCA Prison in Oklahoma (p 16)
  18. New Jersey Jail Settles Chemical Burn Suit for $900,000 (p 16)
  19. IFP Plaintiffs Must Have Opportunity to Challenge Reasons for "Bad Faith" Certifications (p 17)
  20. Punitive Shackling Without a Hearing Okay (p 17)
  21. Construction Audit Criticizes Oregon DOC (p 18)
  22. Eleventh Circuit Upholds Constitutionality of PLRA's Automatic Termination Provision (p 18)
  23. South Dakota Eliminates Law Libraries (p 19)
  24. Trial Required in ADA Suit over HIV Medication (p 19)
  25. Fifth Circuit Says Rotting to Death in Prison Okay (p 20)
  26. Many Florida Prison Guards Are Law Breakers (p 21)
  27. Administrative Remedies Exhausted When Response Time Elapses (p 22)
  28. Sandin Does Not Apply to Pretrial Detainees (p 22)
  29. Sleep Deprivation Not Frivolous Claim (p 23)
  30. Washington Court of Appeals Holds Restitution Orders Invalid (p 24)
  31. Illinois Prison Home to Illegal Tire Dump (p 25)
  32. Dismissal of Haircut Suits Reversed (p 25)
  33. Retaliation Verdict Remanded for Damages (p 26)
  34. Prisoner Withstands Summary Judgment on Cell Condition Claim (p 26)
  35. Washington Good Time Ban Unconstitutional (p 27)
  36. News in Brief (p 28)
  37. Satellite Tracks Parolees (p 29)

Wackenhut's Woes: Guard Killed in New Mexico Riot; Prisoners Exiled to Virginia Supermax

Previously, PLN has reported problems at the Lea County Corr. Facility in Hobbs, New Mexico, one of two prisons in the state operated by Wackenhut Corrections Corp. Violent incidents at the Hobbs facility have included at least 9 stabbings, two of them fatal [PLN, June 1999], and an April 6, 1999 riot in which 13 guards and a prisoner were injured [PLN, Sep 1999]. The prison experienced another murder on June 17, 1999 when Richard Garcia, 47, was stabbed to death in his cell.

Last August the violence spilled over to Wackenhut's other New Mexico prison, the Guadalupe County Corr. Facility in Santa Rosa, 110 miles east of Albuquerque. Wackenhut receives $25 million a year to house 1,500 prisoners -­about 30 percent of the state's prison population -- in the Hobbs and Santa Rosa facilities.



"An All-Out Riot"


Orlando Gabaldon, 51, serving a life sentence, was killed by another prisoner at the Santa Rosa facility on August 22, 1999; he was beaten to death with a bag of rocks. Gabaldon's murder was the fourth in 9 months at the Wackenhut facilities -- the highest number of deaths in New Mexico prisons since the 1980 Santa Fe uprising that ...

From the Editor

by Paul Wright

The August issue of PLN had the last column Laura Whitehorn wrote for us before getting out of prison on August 5, 1999. Laura believed it was important that her column be written by current prisoners, as opposed to a former prisoner.

With this issue of PLN   I welcome our new columnists, Linda Evans and Marilyn Buck. They are Laura's comrades and co-defendants as well as long time PLN supporters. Their column arrived too late to make it into the November issue when it should have run, so we are running it now. Linda and Marilyn are   political activists and have spent the last 15 years or so as political prisoners in the Bureau of Prisons.

All too often women prisoners are an invisible minority in a prison system largely set up to cage men. We hope that by having women prisoners as regular columnists we can raise greater awareness of the unique issues facing women prisoners and their struggles. Another reason we are pleased that first Laura and now Linda and Marilyn have accepted our offer to be columnists, is because the United States government routinely denies holding any political prisoners in its prisons. In ...

Pro Se Tips and Tactics (Civil Appeals)

If the judge or a jury rules against you, you may want to try to appeal to a higher court.   In this column, I will cover some basic information about what kinds of rulings against you in federal court can be appealed, and how to start an appeal.   In my next column, I will discuss whether you should appeal, that is, whether you have a reasonable chance of success on appeal.

As always, I assume that you have filed a federal civil rights action under 42 U.S.C. § 1983.   As used in this column, "Rule ...." means a rule of the Federal Rules of Civil Procedure, and "Appellate Rule...." means a rule of the Federal Rules of Appellate Procedure.  

Can I Appeal?


The general rule, applied in most cases in federal court, is that you cannot appeal unless your case is finished in the district court and a final judgment is entered.   The appellate courts usually want one appeal per case, not several appeals starting every time the district court makes a ruling. See: Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S.Ct. 1177 (1987); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669 (1981).

This means, to take some common examples, that you can appeal if your whole case is over because:



the district court granted the defense's Rule 12(b)(6) motion to dismiss;
the district court granted the defense's summary ...

Beaten Attica Prisoner Awarded $70,000

After a two-week trial during July 1999, a jury ruled in favor of plaintiff Wayne Ford and awarded him $70,000 in a suit against Attica guards for using excessive force.

Wayne, 32, who acted as his own attorney through much of the proceedings, said that Attica guards beat him ...

Lockdown America: Police and Prisons in the Age of Crisis, by Christian Parenti (Review)

Verso, 290 pages

Review by Paul Wright

The government is by no means a neutral agent dedicated to the welfare of all its citizens. Instead, it stands first and foremost to protect the interests of whatever class happens to hold state power at the time. In the United States at the close of the millenium this is the wealthy class. The essential government element that maintains the economic and political status quo is its coercive apparatus: police and prisons. The last three decades have seen a dramatic rise in paramilitary policing as well as the exponential explosion of the American prison population. In Lockdown America Christian Parenti shows the economic crises that have led to the current police and prison state policies that have so dramatically changed the American political landscape over the past 30 years. A more accurate name for the book might be "class war by criminal justice." Like the recent U.S. war against Yugoslavia, this war is also a pretty one- sided affair.

A shortcoming with many otherwise good books about police and prisons is that while they may convey a sense of what is happening, they are incapable of explaining why it is happening and ...

Maximum Security University, edited by Tom Quinn (Book and Video Review)

Video Review by Bob Fischer and Janet Stanton

Maximum Security University is a 48 minute video production by California Prison Focus depicting the deaths of four prisoners shot by guards during the notorious gladiator fights at Corcoran prison in California. The shootings occurred as part of the CDC's deliberate policies.

The goal of the California SHU system, and particularly the integrated yard system, was supposedly to "teach" prisoners from rival groups to get along with each other. (Hence the title of the book and video.) Prisoners from antagonistic groups, and individuals with known animosities for each other, were placed together on the 70 by 20 foot pie shaped exercise yards at the same time. Guards were authorized to shoot 37mm baton rounds, or deadly 9mm Glazer safety slugs to "save life or prevent great bodily injury." Theoretically, each shooting incident was reviewed by a 3-4 person internal administrative shooting review board; in practice, every fatal shooting was ruled justified. In none of the shootings analyzed in the video did the fighting prisoners possess a weapon of any kind.

Quinn obtained surveillance videos of these shootings during the discovery process of the lawsuit filed over the murder of prisoner Preston ...

CDC Settles Corcoran Shooting Suit for $2.2 Million

In May, 1999, the California Department of Corrections (CDC), announced it would pay $2.2 million to settle a shooting lawsuit by former prisoner Vincent Tulumis. Earlier this year the CDC settled the Corcoran shooting death lawsuit by the estate of Preston Tate for $825,000 [PLN, May, 1999] and ...

Notes from the Unrepenitentiary

They call themselves POWs because Puerto Rico has been fighting a war for independence since 1898, when the U.S. first invaded the island. Puerto Rico is one of the few colonies left in the world. The U.S. military and transnational corporations want to keep it that way. U.S. labor laws and environmental protections, for example, don't apply in Puerto Rico. U.S. companies can dump toxins, pay lousy wages, and get big tax cuts while doing business on the island. The U.S. military conducts dangerous military maneuvers and rents out the island to NATO for war games, but Puerto Ricans cannot even vote in U.S. elections.

The Puerto Rican prisoners are POWs because they were fighting for the independence and self-determination of their island, just like the American Revolution was fought to free the U.S. from British colonialism. The POWs were charged and convicted of seditious conspiracy, the same charge that kept Nelson Mandela in prison in South Africa for 27 years. We all know that history is written by those in power. Although the U.S. government once labelled Mandela a terrorist, now they must acknowledge him as a hero, because his ...

CSC Cancels Florida Juvenile Facility Contract

Correctional Services Corp. (CSC) announced Aug. 23, 1999 that it was withdrawing from an $8.7 million-a-year contract to operate the Pahokee Youth Development Center, a 350 bed Florida juvenile facility, 8 months before the contract is due to expire.

The announcement came six weeks after the Pahokee facility failed a major state inspection and one week before a court hearing on safety concerns at the privately-operated youth center. State inspectors had criticized the facility's counseling services, poor physical condition, education programs, disruptive atmosphere and continued complaints of physical abuse by staff members.

After reviewing the inspection report Juvenile Court Judge Ron Alvarez compared the CSC-run youth center to a "third-world country that is controlled by ... some type of evil power," and gave the company 7 weeks to make improvements. "Treatment of these children, so far, based upon this report, comes dangerously close to being inhumane," Alvarez said.

The Pahokee youth center has gone through five administrators since it opened in 1997, and has been criticized by state monitors and child-welfare advocates for poor manageme nt and excessive use of force. The Washington-based Youth Law Center has condemned conditions at the facility as a "denial of basic constitutional rights ...

Stanford University Tests Drugs on Imprisoned Juveniles

During 1997 researchers from Stanford University were allowed to conduct drug trials on 61 teenagers imprisoned at the California Youth Facility (CYA) in Stockton. According to the Associated Press, state officials have indicated that those tests may have violated a state law banning medical research on prisoners.

The juveniles, aged 14 to 18, were given varying dosages of Depakote, a prescription drug used to control epileptic seizures, to determine if the drug made them "less aggressive." According to Stanford University officials, the teens "volunteered" for the experiments and officials mailed consent forms to their parents. In those cases where the parents didn't respond, the CYA gave consent.

But CYA officials claim the tests were conducted without the knowledge or approval of the CYA director or his legal office. Lisa Beutler, under secretary of the CYA said, "The [approval] process fell down here." She added, though, that the idea "was not necessarily bad" because researchers might have uncovered a useful drug to reduce violent tendencies.

Gov. Gray Davis has asked the attorney general and the state's inspector general to investigate the drug experiments. And CYA officials say they are taking steps to insure that similar tests won't happen ...

Ninth Circuit Vacates Previous Opinion Ruling PLRA's Provision Unconstitutional

Rules Taylor Not a Consent Decree


In 1972, Eddie W. Taylor and George Yanich, Jr., Arizona state prisoners, filed class action suits under 28 U.S.C. § 2254 and 42 U.S.C. § 1983 challenging Arizona's prisoner behavior and discipline rules and deprivation of "two-for-one good behavior time." The parties stipulated to the unconstitutionality of the disciplinary procedures and came to an agreement without a trial. On December 22, 1972, the district court entered an order outlining the agreed upon disciplinary rules, but specifically refusing to rule on the constitutionality of the prior rules. In the order, the district court retained jurisdiction for six months.

Later, prison officials submitted a proposed final draft of the rules, the prisoners filed objections, and the district court entered a stipulation and final judgment on October 19, 1973, reflecting the changes in the final draft. The final judgment did not mention any prospective injunctive relief or continuing jurisdiction. Nonetheless, for over twenty-five years, the prison officials treated the December 22, 1972, order as a consent decree, seeking permission from the district court pursuant to Rule 60(b)(5), Federal Rules of Civil Procedure, whenever they wished to change the prison rules.

In 1996 ...

Virginia Juvenile Dies of Accidental Heart Attack

The state police were phoned and asked to send a trooper to formally charge Dandridge with assault. Meanwhile, Oak Ridge officials say, the youth was observed every five minutes through his cell door window. Nobody went into the cell to check on him because he appeared to have calmed down.

When the state trooper arrived 45 minutes later, he found Dandridge unconscious with a shallow pulse. The youth was transported to a hospital and pronounced dead a short time later.

Seven "correctional" employees at Oak Ridge were suspended without pay May 13 because of the incident. The FBI and state police launched separate criminal investigations.

The outcome of those investigations will undoubtedly be impacted by the medical examiner's July 22 ruling that Dandridge's death is not a homicide. "The death is classified as accidental," Robert M. Hollowy, regional administrator of the medical examiner's office, told the Washington Post.

So it was an accident. But just how does one die of an accidental heart attack? Holloway cited the specific cause of death as "acute cardiac arrhythmia precipitated by stress and acute asphyxia," the Richmond Times Dispatch reported.

A source familiar with the investigation told reporter Frank Green of ...

Tennessee Prison Guard to Pay $50,000 for Stabbing

A former Tennessee Dept. of Correction guard has been ordered to pay $50,000 to a prisoner who was attacked and stabbed after he resisted the extortion demands of other prisoners.

U.S. District Judge Todd Campbell ruled on August 7, 1999 that former guard Xavier Waters had been deliberately ...

Pelican Bay Guard Indicted in Shooting

by W. Wisely

For the second time in less than two years, a California prison has become the target of a U.S. Justice department investigation. In part of what is expected to be a wider civil rights prosecution, a federal grand jury in San Francisco indicted fired Pelican Bay prison guard David Lewis June 8, 1999, for shooting a prisoner in the chest in 1994, according to the San Jose Mercury News. The indictment is just part of an ongoing investigation into abuse, corruption, and cover-up at the state's northernmost prison.

The pattern at the Crescent City maximum security prison is eerily similar to the problems at Corcoran, where federal prosecutors charged eight guards with staging gladiator-style fights between prisoners, illegal shootings, and fabricating evidence to cover up the abuse. "I do see similarities between problems at Pelican Bay and problems at Corcoran," said attorney Steve Fama, who has sued prison officials for civil rights violations many times. "Both are about large numbers of state officials abusing [prisoners] by the most serious means one can imagine," he told the newspaper.

The U.S. Attorney's Office in San Francisco charged Lewis, 51, with two counts of civil rights ...

1999 Washington State Legislative Roundup

The 1999 Washington legislature created or amended far too many statutes of interest to our readers to adequately summarize, but here are some highlights:

Custodial Misconduct makes it a class C felony for an employee or contract personnel of a correctional agency [or] law enforcement officer to have sexual intercourse with a resident of a state, county, or city adult or juvenile correctional facility& [or who] is being detained, under arrest or in the custody of a law enforcement officer& The law specifies that Consent of the victim is not a defense to prosecution&.

Custodial sexual contact other than sexual intercourse is classified as a gross misdemeanor. In either case, it is considered an affirmative defense prosecution&, to be proven by a preponderance of the evidence, that the act of sexual intercourse or sexual contact resulted from forcible compulsion by the other person.

Worth noting is that the legislature assigned 1st degree custodial misconduct an offense level of V on the sentencing grid, making the presumptive sentencing range for a first-time offender a mere 6-12 months.

Sexual Misconduct by Employees of Custodial Agencies This statute outlines the administrative procedures to be followed by the state DOC when the secretary [of corrections] has reasonable cause to believe that sexual intercourse or sexual misconduct between an employee and an offender has occurred. Including that the employee should be immediately suspended, and what steps shall be taken to terminate the person and disqualify them from future employment. This statute attempts to define the limits of state liability in cases of employee sexual misconduct.

Community Custody this statute essentially reintroduces parole to Washingtons criminal justice system. The state eliminated parole with the Sentencing Reform Act (SRA) of 1981, switching to a determinate sentencing scheme.

Ever since the SRA took effect in 1984, critics denounced the lack of state control over offenders who, having served their determinate sentence, are released without supervision. The community Custody Act of 1999 grants those critics their wish.

Those convicted of most crimes (sex offenses, violent offenses, and most drug offenses) committed after July 1, 2000 will, in addition to their SRA determinate prison sentence, be sentenced to a term of community custody (i.e. parole) to be served after their prison sentence.

The lengths of community custody guideline ranges will be developed by the state sentencing commission before 12/31/99 and submitted to the legislature. In an early draft of the statute, though, it was suggested that community custody terms of 5, 10, 20 years or life, depending on the seriousness of the underlying offense.

Prisoners may continue to be released from prison prior to the expiration of their maximum term of confinement as a result of earned early release credits (good time). Prior to release, however, the DOC shall assess the offenders risk of re-offense and may establish and modify conditions of community custody, in addition to those imposed by the court, based upon the risk to community safety.

After release, offenders will be under the supervision of a community custody [parole] officer. Failure to conform to the terms of community custody may result in re-incarceration for up to the maximum term of confinement. Those on post-release supervision who have maxed out their term of confinement are subject to DC supervision until their term of community custody expires. For such an offender& who violates any condition of community custody & the department may impose a sanction of up to 60 days in total confinement for each violation.

Those who are accused of violations will be given a hearing which shall be considered as offender disciplinary proceedings&. In other words, suspected parole violators will be afforded no more due process than prisoners receive in a prison disciplinary hearing. There is an appeal process, but the reviewing authority is a panel of three reviewing officers and the sanction will not be reversed or modified unless two of the three panel members find that the sanction was not reasonably related to any of the following: (i) The crime of conviction; (ii) the violation committed; (iii) the offenders risk of re-offending or (iv) the safety of the community. In other words, there is no meaningful appeal.

Sex offenders could face up to life-time community custody supervision. The statute singles out sex offenders and specifies that any time prior to the completion or termination of& community custody, if the court finds that public safety would be enhanced, the court may impose and enforce an order extending any or all of the conditions imposed pursuant to this section for a period up to the maximum allowable sentence for the crime as it is classified in chapter 9A.20 RCW, regardless of the expiration of the offenders term of community custody.

There is much more to this statute than can be summarized here. Those interested in studying this sea change in Washingtons criminal justice system should read the entire statute [Washington Laws, 1999, Chapter 196, pg. 787-826].

One interesting provision buried within allows the DOC to arrange for the collection of unpaid legal financial obligations through the county clerk, or through another entity if the clerk does not assume responsibility for collection. The costs of collection services shall be paid by the offender. The another entity refers to a private collection agency.

Other notable statutes not fully summarized here, but worth looking up and reading in the two volume Laws of Washington, 1999, are:

Ø Doc Civil Service Exemptions, Ch. 122, pg. 424;

Ø Statutory Double Jeopardy, Ch. 1419 pg. 464;

Ø Criminal Sabotage, Ch. 191, pg. 777 (makes it a crime for an employee to willfully damage, destroy, or impair the operation of equipment of any public or private business or commercial enterprise.);

Ø Drug Offenders Sentencing, Ch. 197, pg. 826 (creates treatment sentencing options subject to available resources);

Ø Clemency and Pardons, Ch. 323, pg. 1655 (allows for greater victim input and allows such input to remain inaccessible to the person seeking clemency or ...

Arizona Can't Seize All Prison Labor Back Wages

The Arizona court of appeals held that the state of Arizona can only seize thirty percent of a successful prisoner litigants back wages award.

In 1983 and 1984 Richard Ford, an Arizona state prisoner, worked for Cutter Industries, a private company that operated a blood plasma center mining prisoners blood ...

Riots Rock CCA Prison in Oklahoma

In Nov. 1998 Corrections Corporation of America (CCA) opened the Diamondback Corr. Facility in Watonga, OK and filled it with prisoners from Indiana and Hawaii. According to a prisoner housed at the facility there was a great deal of tension between the two groups, which resulted in numerous fights.

CCA reportedly did not separate the Hawaiian and Indiana prisoners until early June 1999, and then still allowed them to co-mingle at meal times when they were fed in the same dining area. On June 22 a brawl between Indiana and Hawaiian prisoners broke out as lunch as being served; the disturbance escalated until it involved about 80 prisoners and lasted an hour. At least two prisoners were injured and guards had to use-tear gas to regain control. Afterwards, the prison was placed on lockdown for several weeks.

Less than two months later, on August 15, 1999, another riot erupted at the Diamondback facility, which had since started housing Oklahoma and federal prisoners in addition to those from Indiana and Hawaii. A prisoner who was present during the riot said a group of Hawaiian convicts staged a fight in a recreation yard, then attacked and severely beat guards who arrived to ...

New Jersey Jail Settles Chemical Burn Suit for $900,000

On April 20, 1999, Atlantic County, New Jersey, paid $900,000 to settle a lawsuit involving extensive chemical burns suffered by a prisoner forced to do calisthenics in a pit filled with caustic chemicals. David Zamot was a non violent offender sentenced to the Gerald Gormley Justice Facility (GGJF) boot ...

IFP Plaintiffs Must Have Opportunity to Challenge Reasons for "Bad Faith" Certifications

The U.S. court of appeals for the Seventh Circuit held that prisoners, who proceed in forma pauperis (IFP) before a district court, are entitled to an opportunity to give reasons justifying an appeal, whenever a district court determines that an appeal is taken in bad faith.

This opinion involves an appeal in a civil rights action from a final order, which granted summary judgment against Curtis Celske, a Wisconsin state prisoner. In the district court, Celske was accorded IFP status. However, when he filed his notice of appeal, the district judge "construed" it as a "request to proceed IFP on appeal," and then certified in writing that the appeal was not taken in good faith.

The district judge based his determination on a presumption of correctness of his reasoning for granting summary judgment, and the fact that Celske's "notice of appeal did not state any reason for his appeal." Writing for the court, chief judge Posner recognized that nothing in the district judge's bad faith certification suggests that Celske's claims "are frivolous or that an appeal would be futile." Posner noted that "a notice of appeal is not supposed to contain grounds or argument." Judge Posner ...

Punitive Shackling Without a Hearing Okay

The court of appeals for the Eighth Circuit held that it does not violate the Eighth or Fourteenth amendment to chain and shackle a prisoner in his cell for 24 hours without first providing for a hearing or an opportunity to be heard. This case illustrates that all to frequently conditions of confinement not only fall far below international human rights standards, but that the American judiciary is unwilling to interfere with the gratuitous infliction of suffering that does not involve overt physical force.

The Anamosa State Penitentiary in Iowa has a policy whereby prisoners accused of spitting, throwing objects or setting fires are handcuffed, their ankles are shackled together and a chain is run between the handcuffs and the shackles for a 24 hour period. A nurse checks on the prisoner every 8 hours, a guard every 30 minutes. Prisoners are fed three "nutraloaf" meals while chained in this manner. Nutraloaf is a foul concoction of blended foodstuffs baked into a brick.

Kelvin Key, a prisoner at the penitentiary, was accused of throwing water on a guard and was shackled as mandated by the prison's policy. At a hearing held after the chaining period was over, Key claimed ...

Construction Audit Criticizes Oregon DOC

A report by Oregon state auditors released March 18, 1999, cited over $4 million in questionable expenses paid to contractors during a 2,348 bed expansion at the Snake River Corr. Institution in Ontario.

The secretary of state's Audit Division recommended that the Dept. of Corrections recover $465,000 paid to Hoffman Construction Co., a Portland firm that coordinated the project.

The audit report criticized the corrections department for entering into vague contracts and then failing to properly monitor them. State auditors found the department had paid $170,000 in disallowable overhead and purchasing expenses, $28,000 for catered luncheons for Hoffman staff and prisoner workers, and almost $107,000 in excessive travel and living costs. Another $3.7 million in payments to Hoffman and two other contractors involved in the Snake River expansion project also were questioned.

Corrections officials did not dispute many of the audit's findings but claimed they had identified and stopped some of the improper payments before the report was released. "A lot of the things were fixed, or things we had caught on our own," said DOC spokesman Perrin Damon. "And there are some things, some contract gray areas, that we need to ...

Eleventh Circuit Upholds Constitutionality of PLRA's Automatic Termination Provision

The Eleventh Circuit court of appeals has upheld the constitutionality of the immediate termination provisions of the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626(b)(2).

Alabama women state prisoners filed a class-action civil rights suit under 42 U.S.C. § 1983, challenging their conditions of confinement. The parties entered into a consent decree in 1987. In 1997, prison officials filed a motion to terminate relief under the immediate termination provisions of the PLRA. The immediate termination provision requires termination of all prospective relief in a prison conditions lawsuit unless the court makes findings what the relief is narrowly drawn, extends no further than is necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.

The district court granted the motion to terminate and the prisoners appealed on the grounds that the immediate termination provisions violated the separation of powers doctrine by imposing a rule of decision for pending cases in violation of United States v. Klein, 80 U.S. 128(1871) and by depriving Article III courts of their authority to fashion effective relief in constitutional cases involving prisoners.

The Eleventh Circuit ...

South Dakota Eliminates Law Libraries

On May 17, 1999, the South Dakota Department of Corrections settled a lawsuit that eliminates law libraries in the state's prisons and replaces them with limited assistance from a legal contractor.

Under the terms of the settlement, South Dakota's four main prisons will maintain a collection of about ...

Trial Required in ADA Suit over HIV Medication

In the July, 1999, issue of PLN we reported McNally v. Prison Health Services, 28 F. Supp.2d 671 (D ME 1999) in which the court denied the defendants' motion to dismiss. The case involves David McNally, an HIV positive arrestee who, while detained for three days in the Cumberland County Jail in Maine, was denied his prescribed HIV medication. The jail had contracted its medical services out to Prison Health Services, a private, for profit company.

Upon being booked into the jail McNally told PHS staff he was HIV positive and on a treatment regimen. McNally's personal doctor called the jail, spoke to PHS staff and confirmed McNally's diagnosis, prescriptions and dosages. PHS refused to provide any of the medications to McNally who then suffered chills, sweats, vomiting and ran the risk of developing a drug resistant HIV strain as a result.

McNally filed suit claiming the jail and PHS violated his right to due process and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101. As noted above, the court denied the defendants' motion to dismiss. In this ruling, the court denied the defendants' motion for summary judgment, finding disputed issues of material fact ...

Fifth Circuit Says Rotting to Death in Prison Okay

How often have you heard it said of prisoners, "Let them rot in prison?" Probably more times than you care to remember. In the case of Mississippi prisoner Eugene Stewart, such a hellish and cruel death as literally having the skin rot off of his bones was visited upon him at the hands of Mississippi prison medical staff.

The estate and survivors of Stewart brought a 42 U.S.C. 1983 civil action against several prison physicians, alleging that their treatment of Stewart violated the Eighth Amendment. Stewart died as a result of decubitus ulcers (bedsores) that he developed while under the so-called care of Mississippi prison Drs. Dial, Kim and Knutson. The court of appeals for the Fifth circuit, in an extremely bad decision, held that the physicians were not deliberately indifferent to Stewart's serious medical needs and were entitled to qualified immunity with respect to state law claims.

Under the "cruel and unusual punishments" clause of the Eighth Amendment to the United States Constitution, "inadequate medical care by a prison doctor can result in a constitutional violation for purposes of §1983 claims when that conduct amounts to deliberate indifference to the prisoner's serious medical needs, constituting ...

Many Florida Prison Guards Are Law Breakers

After a review of state records, two Florida newspapers have revealed that state and county prison guards are twice as likely to be disciplined for violations of standards than police officers and that nearly ten percent of Florida state prison guards have criminal records.

The Orlando Sentinel reviewed records from the Florida Criminal Justice Standards and Training Commission and found that 769 out of 26,000 state and county prison guards were brought up on charges ranging from excessive force and sexual assault to bringing in contraband during an 18 month period from January 1998 to June 1999. During the same period, 559 of the state's 40,000 police officers faced disciplinary action.

Richard Coffey, chairman of the commission, said: "There has been an explosion [of new jobs] in the corrections field and they are recruiting heavily. There is less pay and a lot less competition. The Department of Corrections is more interested in getting people than a high quality of people."

According to the St. Petersburg Times, DOC statistics show at least 1,560 of Florida's 16,000 state prison guards, or 9.75 percent, have been charged with a crime in the past five years. Most ...

Administrative Remedies Exhausted When Response Time Elapses

The court of appeals for the Fifth circuit held that prison administrative remedies are deemed exhausted when the time period for the prison's response elapses, regardless of whether or not the prison has responded.

42 U.S.C. § 1997e requires that prisoners exhaust available administrative remedies before they can file suit in federal court. Robert Powe, a Texas state prisoner, sued prison officials claiming they failed to protect him from assault by another prisoner and then tried to cover up their failure by punishing him on false disciplinary charges. Powe filed a grievance as provided for in Texas Department of Criminal Justice (TDCJ) rules. (The TDCJ grievance procedure is described in detail in Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998)). Long after the 40 days allowed for a response, Powe filed suit even though the prison never responded to his step two grievance.

The district court dismissed the suit under § 1997e, claiming Powe had failed to exhaust his administrative remedies because he filed suit before the prison responded to his grievance. The court of appeals affirmed the dismissal of the disciplinary hearing claim, but vacated and remanded the failure to protect claim.

In a brief ...

Sandin Does Not Apply to Pretrial Detainees

The Seventh Circuit court of appeals has held that a pretrial detainee may not be punished for his crime prior to conviction and that Sandin v. Conner, 515 U.S. 472 (1995), does not apply to suits by pretrial detainees.

Ricky Joe Rapier was a pretrial detainee awaiting trial at the Vigo County (Indiana) Jail. He engaged in numerous instances of violent disruptive behavior, such as throwing food trays at other prisoners and guards, stabbing a prisoner-trustee with a broken broomstick, and flooding his cell. Rapier was criminally charged for his assaultive misconduct and, without receiving a written notice or a hearing, was placed in solitary confinement for 270 consecutive days.

During his solitary confinement, for various periods of time, Rapier was denied phone and commissary privileges, writing materials, access to recreation facilities, showers, personal hygiene items, and some pork-free meals. The trustee he assaulted was allowed to serve him his meals.

Rapier filed a civil rights suit under 42 U.S.C. §1983. The defendants moved for summary judgment. The district court granted defendants' motion for summary judgment, holding that Rapier had not established the deprivation of a federal right. Rapier appealed.

The court held that, pursuant to Bell ...

Sleep Deprivation Not Frivolous Claim

by Ronald Young

The court of appeals for the Fifth circuit held that a prisoner's claim based on custodial classification was frivolous, and the prisoner's Eighth Amendment claim was frivolous insofar as it sought damages for emotional suffering. The court also held that the prisoner stated a non-frivolous Eighth Amendment claim based on alleged deprivation of cleanliness, sleep, and peace of mind.

Roy Randall Harper, a Mississippi state prisoner, filed a 42 U.S.C. § 1983 suit against several Mississippi DOC officials and employees, "alleging that they had subjected him to cruel and unusual punishment, and that the classification system they employed denied him due process and equal protection of the laws." Specifically, he stated that "he continually is placed in cells next to psychiatric patients who scream, beat on metal toilets, short out the power, flood the cells, throw feces, and light fires, resulting in his loss of sleep for days at a time."

Harper sought "a declaratory judgement, recognizing the constitutional violations, and injunctive relief, enjoining further harassment. He also sought compensatory damages for his emotional distress and mental anguish." After conducting a hearing during which Harper primarily complained about the classification methodology, "the magistrate judge ...

Washington Court of Appeals Holds Restitution Orders Invalid

The Washington state Court of Appeals held that restitution orders entered under the pre-1995 version of RCW 9.94A.142 are invalid if entered more than 60 days after sentencing and entered: (1) as an ex parte order, if the defendant objected, regardless of when the objection was made; or (2) after a hearing, if the defendant did not waive the right to appeal.

RCW 9.94A.142, as enacted in 1985, required that the amount of restitution due be determined at sentencing or within 60 days thereof. The statute was amended in 1995, extending that period to 180 days, allowing the court to continue the hearing beyond 180 days for good cause and prohibiting the court from reducing restitution orders due to a defendant's inability to pay.

The court of appeals consolidated several appeals of restitution orders entered under the pre-1995 version of RCW 9.94A.142. The state appealed trial court orders granting motions to strike restitution in five cases and two defendants appealed the denial of their motions to strike. Six of the restitution orders were entered as ex parte orders and the seventh was entered after a restitution hearing that defendant failed to attend. In ...

Illinois Prison Home to Illegal Tire Dump

What do you do with 17,000 tons of scrap truck tire casings? The administration of Illinois's Logan Correctional Center has to figure that one out, says the Illinois Environmental Protection Agency and the Lincoln Fire Department.

The veritable mountain of tire casings, equivalent to more than one million passenger car tires, is the end result of a plan to bring in tires from throughout the state to be shredded and recycled through a prison industries program. But the program has never turned a profit and has been mired in charges of corruption, inept management and broken down equipment. It now appears that the failed program will cost the DOC one heap of money for disposal of the gigantic environmental and fire hazard.

Source: Corrections Digest

Dismissal of Haircut Suits Reversed

In two brief, separate rulings, the court of appeals for the Eighth circuit reversed and remanded the dismissal of lawsuits challenging prison haircut rules by Rastafarian prisoners. In one case, the court held the district court had improperly concluded the plaintiff had not exhausted his administrative remedies.

Dwight Cofer, a Missouri state prisoner and a Rastafarian, filed suit claiming he was intermittently required to cut his hair. The Rastafarian religion prohibits its adherents from cutting their hair. The district court held the suit was frivolous, denied Cofer In Forma Pauperis status and dismissed the case.

The court of appeals reversed and remanded. "We do not disagree with the district court's conclusion that security concerns permit prison officers to require Cofer to cut his hair, but we find no evidentiary basis in the record of this case, which is still at the initial screening stage, for applying the cases cited by the district court. Liberally read, Cofer's still uncontested pleadings establish an intermittent unexplained requirement that he cut his hair, a requirement he finds offensive because of his adherence to the Rastafarian religion. Such a claim is not frivolous." See: Cofer v. Schriro, 176 F.3d 1082 (8th Cir ...

Retaliation Verdict Remanded for Damages

The court of appeals for the Eighth circuit held that a district court abused its discretion when it only awarded nominal damages to a prisoner who won a grievance retaliation claim against a jail guard. The court also notes cases on damage awards for wrongful segregation claims that will be useful to anyone successfully litigating claims involving illegal segregation.

Charles Trobaugh was a detainee in the Linn County Correctional Center in Iowa. Trobaugh filed a grievance against jail guard Harvey Hall to protest Hall transporting him to court early. Hall denied Trobaugh's grievance. Trobaugh filed a second grievance to appeal Hall's previous decision. Hall denied this grievance as well. Trobaugh then filed a third grievance to protest the lack of an appeal process and Hall denied this grievance too. The next day, two guards awoke Trobaugh at 12:30 AM and took him to an isolation cell. Hall visited Trobaugh and told him he was being placed in administrative segregation for filing repeat grievances. Trobaugh spent three days in ad-seg and didn't file anymore grievances.

Trobaugh filed suit seeking compensatory and punitive damages for the time he spent in segregation. Hall admitted liability and conceded his conduct ...

Prisoner Withstands Summary Judgment on Cell Condition Claim

A federal district court in Virginia held that a genuine issue of material fact as to whether a prisoner's cell was adequately heated, had bedding and was maintained in a sanitary condition, precluded summary judgment.

Virginia Department of Corrections prisoner Robb Harksen brought suit against prison officials alleging repeated guard assaults, unconstitutional cell conditions, impermissible deprivation of property and unconstitutional grievance procedures. Defendants filed for summary judgment, which was denied in part and granted in part.  

The court denied the motion as to Harksen's cell conditions claim, finding that he alleged several material facts to support his claim which defendants contested.

The disputed facts included Harksen's allegations that: the windows were cracked, the internal heat was not working properly and he was clothed in only a tee shirt and boxers when it was 18 degrees outside; his bunk didn't have a matress; he had no toiletries of any kind; and "the cell was in a deplorable and unsanitary condition, with human excrement having aggregated because the water had been turned off for several days."

The court granted summary judgment with respect to Harksen's remaining claims, finding that he failed to allege any material facts as ...

Washington Good Time Ban Unconstitutional

In a ruling with far reaching implications, a Washington state court of appeals held that a "three strikes" ballot initiative that eliminated good time and early release credits for first time offenders convicted of first degree murder, first degree rape and assault and assault of a child, violates the single subject clause of the Washington constitution.

Darrell Cloud was convicted of first degree murder. On his direct appeal he challenged his criminal conviction as well as the constitutionality of RCW 9.94A.120(4), which mandates that he receive no good time reduction of his sentence.

RCW 9.94A.120(4) was enacted as part of Initiative 593, the "three strikes" ballot initiative which prescribes sentences of life without parole for defendants convicted a third time of committing one of 42 "serious" offenses. [PLN, June, 1994].

As previously reported in PLN,   I-593 also eliminated the possibility of earning good time or early release credits for prisoners convicted of first degree murder, rape and assault and assault of a child. Defendants convicted of these offenses are required, under I-593, to serve the full length of their sentence in prison. The same statute also states these defendants cannot serve any portion of ...

News in Brief

AR: On August 11, 1999, a Lafayette Co. jail guard received a 5 year suspended sentence for having forcible sex with the wife of a prisoner as "payment" for letting her have a private visit with her husband. Michael A. Null, 38, pleaded guilty to felony charges of first-degree sexual abuse and bribery.

AR: On October 3, 1999, Kenneth Williams escaped from the maximum security Cummins Unit prison in Varner. Williams had been sentenced to life without parole a month earlier in the kidnapping murder of a female college student. Williams is a suspect in the shooting death of Cecil Boren, whose body was found in his home six miles from the prison shortly after Williams escaped. Boren's truck had been stolen.

CA: An unidentified prisoner died after falling off a 150 foot cliff on July 18, 1999. He was one of 50 state prisoners digging a fire break to stop a 2,000 acre brush fire northwest of Los Angeles.

CA: On Aug. 11, 1999, former federal prison guard Jon Hyson, 38, pleaded guilty to four counts of engaging in illicit sexual acts and one count of making a false statement. He admitted having sex with female prisoners ...

Satellite Tracks Parolees

by W. Wisely

Defense Department satellites designed to help guide nuclear missiles hang in geosynchronous orbit 12,500 miles above. The network of 24 military satellites hasn't been used much raining thermonuclear destruction on godless communists since the end of the Cold War. So, the Pentagon started leasing satellite time to private companies, like the one that uses them to monitor people on parole and probation.

"It's bullets to plowshares," said Jack Lamb, president and CEO of Advanced Business Sciences, Inc., in an interview with USA Today writer Gary Fields published April 8, 1999. Lamb's Omaha, Nebraska, company uses its ComTrak monitoring system to follow 100 people in nine states. The cost for monitoring sex offenders in Chicago to juvenile delinquents in New Jersey is $12.50 each per day.

The ComTrak system consists of a wristwatch-sized bracelet, a three-pound tracking unit resembling a portable telephone, and a battery charger/base unit kept at the monitored person's home. The base unit sends information by telephone to a monitoring center. Take off the bracelet or move more than 50 feet from the tracking unit and an alarm goes off at the center.

The system is used to ...

 

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