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Prison Legal News: February, 1999

Issue PDF
Volume 10, Number 2

In this issue:

  1. Our Sisters' Keepers (p 1)
  2. Human Rights Report Details Women in Prison (p 2)
  3. Campaign to End Slavery in American Prisons (p 3)
  4. From the Editor (p 4)
  5. Book Review: Breaking the Walls of Silence (p 4)
  6. Notes from the Unrepenitentiary (p 5)
  7. Felony Trial for Planted Knife Is Malicious Prosecution (p 5)
  8. Attorney Fee Cap Inapplicable to Pre-PLRA Suits; PLRA Automatic Stay Provisions Constitutional (p 6)
  9. Dismissal with Prejudice for Failure to Exhaust; Prison Must Process Grievance within Time Limits (p 7)
  10. New York Prison Guard Nailed with DNA Evidence (p 8)
  11. California Guards Indicted in Rapes (p 8)
  12. Virginia Prison "Fire Trap" Finding Reversed (p 9)
  13. Threats to File Grievances Protected (p 9)
  14. University Professor Shills for Private Prison Industry (p 10)
  15. Samuels v. Mockry Reversed Once Again (p 10)
  16. Scott Superceded (p 11)
  17. Washington 35% Statute Upheld in State Court (p 11)
  18. Settlement in Washington State Deaf Prisoners' Lawsuit (p 12)
  19. Duffy v. Riveland: Some Comments Regarding the Court's January 20, 1998 Summary Judgment Ruling (p 12)
  20. California Gas Chamber Ruling Vacated (p 13)
  21. PLN Writer Settles Nude Photo Suit for $3,000 (p 14)
  22. Illinois Sheriffs Are County Employees (p 15)
  23. Guard Socked for $37,500 in Vendetta (p 15)
  24. Rikers Island Brutality Suit Settled (p 16)
  25. Victim of Guard Rape Awarded $50,000 (p 17)
  26. Abuse of Discretion to Dismiss Medical Suit (p 18)
  27. Abuse of Prisoners Confirmed at CCA Facility (p 18)
  28. Eighth Circuit Reinstates $80,000 Damage Award in Rape Case (p 19)
  29. No Credit for Time Served on Wrongful Conviction (p 19)
  30. Parole Officer Recommendation Not Protected by Absolute Immunity (p 20)
  31. Cancellation of TDCJ/VitaPro Contract Reversed (p 21)
  32. Trial Required in Wisconsin Excessive Force Suit (p 21)
  33. No Right to Mutual Legal Assistance in 11th Circuit (p 22)
  34. Prisoners Entitled to Money Damages and Injunctive Relief under ADA and RA (p 22)
  35. Colorado Contraband Rule Requires Visitor Notice (p 23)
  36. Indiana Jail Ban on Publications Struck Down (p 23)
  37. News in Brief (p 24)
  38. Arizona Jail Porn Ban Struck Down (p 25)
  39. Temporary Injunction Issued to Prevent Sex Offender Notification to Employer (p 26)
  40. Spencer Applied to Parolee's § 1983 Claim (p 26)

Our Sisters' Keepers

No one can imagine. What it's like. Not unless you've gone through it. Christina Foos has. While incarcerated in a for-profit prison in Arizona, Christina says she was accosted by a guard, Ernesto Rivas, as she stepped out of the shower in March of 1997. Christina told Prison ...

Human Rights Report Details Women in Prison

A recent report from the group Human Rights Watch, titled Nowhere to Hide: Retaliation Against Women in Michigan State Prisons , charges both that Michigan holds female prisoners in horrid conditions and that women who challenge these conditions are subject to retaliation by guards.

Five women are looked at in detail ...

Campaign to End Slavery in American Prisons

Campaign to End Slavery In American Prisons

The purposes of the Campaign to End Slavery in American Prisons (CTES) are

To identify a socially responsible prison labor standard.

To assess working conditions in various prisons and identify those that meet or exceed the standard.

To seek gubernatorial endorsement of the ...

From the Editor

Since PLN began publishing in 1990 we have had to confront prison censors that have sought to prevent prisoners from receiving PLN . We have usually been able to resolve these problems administratively. In those cases where letters or phone calls prove fruitless we have filed suit. Right now PLN is ...

Book Review: Breaking the Walls of Silence

Book review by Laura Whitehorn

Breaking The Walls Of Silence: AIDS and Women in a New Youk State Maximum Security Prison was written by the members of the ACE Program (AIDS Counseling and Education) of Bedford Hills Women's Prison. It is a compelling book which should be read by ...

Notes from the Unrepenitentiary

If all goes well, and my 6-month halfway house is approved, this will be my last column as a prisoner contributor to PLN . This column will be written in the future by my co-defendants and comrades, Marilyn Buck and Linda Evans, both of whom remain in prison, having received longer ...

Felony Trial for Planted Knife Is Malicious Prosecution

Felony Trial for Planted Knife is Malicious Prosecution

In an unpublished opinion, the Tenth Circuit held that a felony prosecution for possession of a knife planted by a guard in a prisoner's cell in retaliation for complaining about the guard was malicious prosecution.

Construing the facts as favorably as ...

Attorney Fee Cap Inapplicable to Pre-PLRA Suits; PLRA Automatic Stay Provisions Constitutional

S.Ct. Grants Review of Fee Issue

by Matthew T. Clarke

The Court of Appeals for the Sixth Circuit has held that the attorney fee cap contained within the Prison Litigation Reform Act, 42 U.S.C. §1997e(d), (PLRA) does not apply to attorney fees in cases filed prior ...

Dismissal with Prejudice for Failure to Exhaust; Prison Must Process Grievance within Time Limits

In an opinion of great importance to prisoners filing civil rights suits, the Fifth Circuit court of appeals has upheld a district court's dismissal with prejudice toward future in forma pauperis (IFP) filing of a prisoner's civil rights suit for failure to exhaust administrative remedies prior to filing ...

New York Prison Guard Nailed with DNA Evidence

Aformer New York state prison guard was sentenced in September, 1998, to three years imprisonment after admitting he forced a male prisoner to perform oral sex.

Michael W. Roberts was a guard at the Adirondack Correctional Facility in upstate New York when he guided prisoner Al Waxter into an employee ...

California Guards Indicted in Rapes

By W. Wisely

More than five years after they set two prisoners up to be raped, then concealed their crimes by falsifying documents and lying to investigators, five guards from California's Corcoran prison were indicted on October 8, 1998, by a Kings County grand jury, according to the Associated ...

Virginia Prison "Fire Trap" Finding Reversed

Virginia Prison "Fire Trap" Finding Reversed

Virginia's state fire marshal overruled an inspector's recommendation to close a prison "fire trap" after reinspecting the building himself at the request of the warden, according to an Associated Press report.

Carolyn R. Williams, a state fire inspector under Fire Marshal Ed ...

Threats to File Grievances Protected

Afederal district court in New York held that the existence of a genuine issue of material fact as to whether a prison guard had battered a prisoner in retaliation for the prisoner's threat to file a grievance on the guard, precluded summary judgment on the prisoner's First Amendment ...

University Professor Shills for Private Prison Industry

Much of the statistical and academic information regarding prison privatization that is reported in the media (and consequently relied upon by lawmakers deciding whether to contract with private prison companies) comes from Charles W. Thomas, director of the Private Corrections Project at the University of Florida, Gainesville.

The Private Corrections ...

Samuels v. Mockry Reversed Once Again

The court of appeals for the second circuit held that an issue of fact as to whether prison officials acted with a retaliatory animus when they placed a prisoner in the "Limited Privileges Program" (LPP), precluded summary judgment for the defendants. This is the second reverse and remand in this ...

Scott Superceded

In the October, 1998, issue of PLN we reported Scott v. Albury, 138 F.3d 474 (2nd Cir. 1998). The case involves an analysis of the process due in prison disciplinary hearings where only a punishment of disciplinary segregation is imposed. That ruling was superseded by a new ruling, which ...

Washington 35% Statute Upheld in State Court

AWashington state appeals court upheld the constitutionality of two statutes which allow the seizure by the state of 35% of the wages prisoners earn and of the money sent in to prisoners from outside the prison system. The court held the laws do not violate various provisions of the state ...

Settlement in Washington State Deaf Prisoners' Lawsuit

Aclass action lawsuit was settled on behalf of deaf and hearing-impaired prisoners in Washington State on September 3, 1998. The settlement agreement obligates the Washington State Department of Corrections to provide qualified sign language interpreters and assistive devices, such as hearing aids and TTY phones, when needed by disabled prisoners ...

Duffy v. Riveland: Some Comments Regarding the Court's January 20, 1998 Summary Judgment Ruling

By Leonard J. Feldman

On January 20, 1998, the district court in Duffy v. Riveland granted summary judgment on a state law claim presented by plaintiff Sean Duffy. The Court found that it had jurisdiction to address the claim, that the defendants--the Washington Department of Corrections and several high-ranking officers--had ...

California Gas Chamber Ruling Vacated

In the April, 1995, issue we reported Fierro v. Gomez , 865 F. Supp. 1387 (ND CA 1994), affirmed at 77 F.3d 301 (9th Cir. 1996)[ PLN , Nov. 1996] which held that California's gas chamber was an unconstitutional means of execution. The supreme court vacated the Ninth circuit ruling ...

PLN Writer Settles Nude Photo Suit for $3,000

On June 2, 1998, a Florida prisoner and Assistant Attorney General struck a settlement deal in the midst of a federal trial. The prisoner regained possession of two nude photos confiscated by DOC officials in 1993 and received approximately $3,000 in compensation. In turn, the suit against five FDOC ...

Illinois Sheriffs Are County Employees

Illinois Sheriffs are County Employees

The court of appeals for the Seventh circuit held that sheriffs in Illinois are county, not state, employees and therefore are not entitled to Eleventh amendment immunity from suits for money damages. Two citizens arrested by Dupage county sheriffs deputies filed suit claiming the sheriff ...

Guard Socked for $37,500 in Vendetta

A federal jury awarded $37,500 to a Massachusetts prisoner who said a man he shot in the head in 1991 became a prison guard, sought him out, and became his worst nightmare.

Zeferino DePina, 24, claimed that prison officials did nothing while the guard, Filipe Monteiro, harassed and beat ...

Rikers Island Brutality Suit Settled

By Jonathan Chasan

New York City officials have acknowledged the need for far-reaching court-ordered reforms to curb systemic brutality and its cover up in the Rikers Island Central Punitive Segregation Unit ("CPSU" or "the bing"), known in the City jails as "the house of pain." The City agreed to a ...

Victim of Guard Rape Awarded $50,000

The court of appeals for the Eighth Circuit held that a continuing, widespread, and persistent pattern of sexual activity between the guards and prisoners of the Jackson County (Missouri) jail, coupled with the county's custom of inaction towards allegations of sexual misconduct by the jail personnel, was the cause ...

Abuse of Discretion to Dismiss Medical Suit

The Seventh Circuit court of appeals has held that a district court abused its discretion when, on technical procedural grounds, it refused to grant a prisoner leave to amend his suit adding the full names of defendants and dismissed the suit.

Ralphfield Hudson, a federal prisoner, was sent to a ...

Abuse of Prisoners Confirmed at CCA Facility

On August 5, 1998, Jerry Reeves, a guard at Tennessee's Whiteville Correctional Facility (WCF), suffered near-fatal injuries in an altercation with prisoners. WCF, which houses prisoners from Wisconsin, is owned and operated by the Corrections Corporation of America (CCA).

In the days following the assault on Reeves, CCA employees ...

Eighth Circuit Reinstates $80,000 Damage Award in Rape Case

The court of appeals for the eighth circuit held that an Arkansas state prisoner was entitled to damages for both the state tort of "outrage", and for a constitutional violation. The court reinstated the full $80,000 damage award against the prison guard who had raped the woman, but affirmed ...

No Credit for Time Served on Wrongful Conviction

The Fifth Circuit court of appeals has held that a federal prisoner is not entitled to credit toward the supervised release portion of other consecutive sentences for time served in prison due to a wrongful conviction.

Larry Jeanes, a former federal prisoner now on supervised release, pled guilty to possession ...

Parole Officer Recommendation Not Protected by Absolute Immunity

Parole Officer Recommendation Not Protected by Absolute Immunity 

The court of appeals for the second circuit held a parole officer who recommended that a warrant be issued for a parolee's arrest was not entitled to absolute imunity.

John Scotto, a felony parolee from California, moved to New York with ...

Cancellation of TDCJ/VitaPro Contract Reversed

ATexas appellate court held that a material fact issue of whether dehydrated textured vegetable protein (TVP) is an agricultural commodity precludes the trial court from granting the Texas Department of Criminal Justice (TDCJ) summary judgment declaring its contract with VitaPro invalid.

In mid-1994, TDCJ Executive Director James "Andy" Collins ordered ...

Trial Required in Wisconsin Excessive Force Suit

Afederal district court in Wisconsin held that a trial was required to determine if excessive force was used during a prison cell search. The court held that defendant prison officials had failed to present sufficient evidence to support their motion for summary judgment.

Richard Kapfhammer, a Wisconsin state prisoner, filed ...

No Right to Mutual Legal Assistance in 11th Circuit

The court of appeals for the eleventh circuit held that actual injury is a threshold requirement in all prisoner access to courts claims. Without such a showing, under the doctrine of standing, federal courts do not have jurisdiction to address the claim.

This case involves a challenge to Fla. Admin ...

Prisoners Entitled to Money Damages and Injunctive Relief under ADA and RA

Prisoners Entitled To Money Damages And Injunctive Relief Under ADA And RA

A federal court in Michigan held that prison officials were not entitled to qualified immunity for money damages in a deaf prisoner's American Disability Act (ADA) suit. The court also held it had supplemental jurisdiction over the ...

Colorado Contraband Rule Requires Visitor Notice

The Colorado supreme court held that a state statute criminalizing the introduction of contraband into county jails was constitutional but affirmed dismissal of criminal charges because the jail failed to comply with the statute's notice requirements.

Thomas Holmes, an attorney, was charged with giving a prisoner-client cigarettes and matches ...

Indiana Jail Ban on Publications Struck Down

In an unpublished ruling, on May 13, 1998, a federal district court in Indiana held that a county jail's policy prohibiting prisoners from receiving publications from any source outside the jail was unconstitutional. In 1997 the St. Joseph county jail in Indiana enacted a policy prohibiting its prisoners from ...

News in Brief

CA : On October 1, 1998, about 100 prisoners at the privately run Victor Valley Community Correctional Facility were involved in a fight. Three prisoners required hospital treatment for minor injuries. The prison is run by Maranatha Private Corrections.

CA : On September 19, 1998, the Sonoma county jail held a hostage ...

Arizona Jail Porn Ban Struck Down

The court of appeals for the Ninth circuit held that a jail rule banning all sexually explicit materials was unconstitutional. In 1993 the Maricopa county jail in Phoenix, Arizona, adopted rules banning all sexually explicit materials from receipt or possession by Jail prisoners. The policy defined "sexually explicit" as any ...

Temporary Injunction Issued to Prevent Sex Offender Notification to Employer

A federal court in New Jersey has issued a temporary injunction to prevent state parole officials from notifying a paroled sex offender's employer of his parole status and criminal history.

John Doe is a paroled New Jersey state sex offender. One parole stipulation prevented him from working around persons ...

Spencer Applied to Parolee's § 1983 Claim

Spencer Applied to Parolee's § 1983 Claim

Afederal district court in California held that a state parolee could file suit under 42 U.S.C. § 1983 challenging his parole revocation and an illegal parole search without first having a favorable ruling on these issues from another court via habeas corpus ...