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Prisoner Education Guide

Prison Legal News: February, 1999

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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 Scott Superceded (p 11)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 Legal News that she was startled by the sight of him, standing there with his exposed erection in hand.

Before she could think of what to do, she says, Rivas ordered her to bend over the bed in her cell and proceeded to rape her. She says he returned less than two hours later to repeat the act.

Foos was among 78 women exiled in October of 1996 by the Oregon Department of Corrections. Because of overcrowding, the women were shipped to the Corrections Corporation of America's (CCA) Central Arizona Detention Center in Florence.

Predominantly a men's facility, CCA Florence lacked a separate disciplinary segregation unit for women. A medical quarantine room adjacent to the hospital area served as the improvised solution. According to a suit filed in Tuscon by five women against CCA and at least fifteen former or current CCA Florence employees, the all-male guard staff ...

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 in the study. All five are part of an ongoing law suit against the Michigan Department of Corrections (MDOC) which charges that prison officials have not stopped guards and staff from committing acts of sexual assault and abuse against female inmates. Ronesha Williams, one woman in the report, was raped by a prison guard in May of 1997. Two months later Williams reported the incident to U.S. Justice Department officials who made no effort to hide her identity from prison guards. Consequently Williams found herself constantly being verbally harassed by guards who knew that she had accused one of them of rape. Williams was also charged with violations that other prisoners would not receive citations for. As a result, her release from prison was delayed.

Nowhere to Hide concludes by arguing that such reprisals deter female prisoners from reporting abuses and that so consequently the conditions in prisons continue ...

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 labor standard.

To inform consumers about whether specific prison made products and services are provided under socially responsible working conditions that meet or exceed the standard.

To promote socially responsible community and economic development in state prisons.

CTES seeks eight people to serve on a steering committee to direct the standard setting process, including, but not limited to:

Seeking technical assistance about the methods and means of consensus-based standard setting, and selecting an appropriate standard setting process.

Identifying and selecting an agent to facilitate the standard development process.

Identifying the key elements and structure of the standard.

Securing financial support for the process.

Conducting research needed to develop the standard.

Identifying prison employment programs that meet or exceed the standard.

Informing the public about the products and services of such employment programs that meet or exceed the standard and seeking support for the standard.

Persons interested in serving on 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 in court challenging "bulk mail", bans in three states that target non profit publications such as ours. So far the Washington and Utah DOC's have largely capitulated on this issue while the Oregon DOC is still defending its policy. [ PLN , Jan. 1999]. PLN also recently sued the Box Elder county jail in Utah which imposed a ban on all reading material sent to prisoners. The jail settled that suit. PLN is also suing the Michigan DOC for banning The Celling of America . More on those suits In next month's PLN .

As the publisher and sender, PLN is entitled to notice of any censorship so we can appeal the matter administratively. As a practical matter, most prison systems do not provide notice of censorship to the sender. We frequently have to rely on our readers to tell us PLN has been censored. If your PLN subscription is censored by ...

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 anyone with an interest in AIDS education or prisoners' rights. It's unique: it does not objectify women, prisoners, or PWA's, because it's written by them. It is a necessary book.

The book consists of two sections: a moving, exciting history of ACE, and a complete outline of the ACE curriculum -- fittingly entitled "Empowerment through Education." Although some of the information in the book is dated (the women completed the book in 1995; inexplicably, it wasn't issued by the publisher until this year), the basic content of the lesson plans and the approach to AIDS education is both creative and, in my experience as a peer educator, effective. It is very difficult to find any educational materials appropriate to prisoner peer education -- especially for women prisoners. This book provides exactly that resource.

Useful as the curriculum section is, it's the first half of the book -- the ...

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 sentences than mine.

In the years I've spent behind bars -- especially the many times I've found myself in the hole -- PLN has been enormously important to me. Nowhere else could I find such clear, direct coverage of legal remedies for prisoners. Instead of vague, empty promises of aid and support, PLN offers actual, concrete help. What a relief!

But, as most of us in prison learn, true legal remedies are few and limited. The legal system, like the system as a whole, is stacked against us. A clear example is the case of Mumia Abu-Jamal, where courts, media, and all the arms of the ruling class are lined up to refuse to look honestly at the myriad violations of constitutional and human rights in his trial. "Law and order" protects the rich and disempowers the poor, bestows privileges on whites and oppresses Black, Native American, Puerto Rican, Mexicano ...

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 possible to the plaintiff, the court of appeals held that Bret Klein, a Colorado state prisoner, and another prisoner had a couple of altercations with guard Ken Coblentz. Klein complained about Coblentz. Coblentz had other guards search Klein's cell and, when nothing was found, made the meritless allegation that Klein was going to knife him. Klein's cell was searched again. Coblentz appeared during the search, whispered something to one of the searching guards, and Klein was removed from the area. Klein denied knowledge of a knife found during the search.

Klein was infracted, but not allowed to take a polygraph, have the knife fingerprinted, or use prison records to prove other prisoners had occupied the cell before him. Klein was found guilty, lost 90-days good time, and spent 30-days in disciplinary and 584-days in administrative segregation. He was acquitted by a jury in a separate criminal trial for ...

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 to the enactment of the PLRA on April 24, 1996, even if the fees are for work occurring after the enactment date. The court also held the automatic stay provisions of the PLRA were constitutional if interpreted to allow courts to indefinitely suspend the automatic stay under their inherent equity powers. The United States Supreme court granted review of the attorney fee issue in these cases. this is significant because this is the first PLRA case to be heard by the Supreme court.

In 1977, female state prisoners in Michigan filed a class-action lawsuit challenging their conditions of confinement and unequal treatment when compared to male prisoners in Michigan. See: Glover v. Johnson, 478 F.Supp. 1075 (E.D. Mich.1979). The female prisoners prevailed and a remedial order issued. See: Glover v. Johnson, 510 F.Supp. 1019 (E. D. Mich. 1981). In 1985, an order was issued to the ...

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 the suit.

Kevin Underwood, a Texas state prisoner, filed a 42 U.S.C. § 1983 suit alleging he was forced to perform work beyond his physical capacities. The district court entered orders continuing the case to allow Underwood to exhaust administrative remedies. Underwood objected. He also argued that he had made a good-faith effort to exhaust administrative remedies and had attempted post-filing exhaustion. The district court overruled the objections and noted that 42 U.S.C. § 1997e now requires unexhausted cases to be dismissed. Because Underwood failed to provide "a meritorous reason for failing to exhaust administrative remedies prior to bringing a lawsuit," the district court dismissed the suit with prejudice toward refiling it IFP. Underwood appealed.

The Fifth Circuit held that a district court can dismiss a § 1983 suit following a continuance if a prisoner does not exhaust administrative remedies. This dismissal may be with prejudice toward refiling IFP ...

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 bathroom and forced him to perform oral sex in April, 1997.

After Waxter filed complaints with the state corrections department and State Police he was transferred to Clinton Correctional Facility (CCF) in Dannemora. Somehow Waxter was able to hide a small vial on his body; the vial went with him to CCF.

After arriving at CCF, Waxter's complaints were investigated by the corrections department's inspector general's office. When Waxter was interviewed, he produced the vial, which he said contained Roberts' semen.

Tests on the fluid verified that it belonged to Roberts, and he was indicted in January, 1998. Faced with the strength of the prosecution's DNA evidence, Roberts pleaded guilty in July to charges of felony sodomy.

"It's critical people understand that when they have authority over an inmate, they will be held accountable for abusing that power," District Attorney Ronald Briggs told the Plattsburgh ...

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 Press. Sgts. Robert Decker and Dale Brakebill, along with guards Joe Sanchez, Anthony Silva, and Lt. Jeffrey Jones, turned themselves in at the county jail in Hanford, where they were, except for Jones who had to post $25,000 bond, released without bail after booking.

Decker, Brakebill, Sanchez, and Silva are charged with forcing Eddie Dillard, then a prisoner in the Corcoran prison SHU, into the cell of his enemy, Wayne Robertson, to be raped. In interviews with state investigators, Robertson and other witnesses, gave graphic details of how prison guards used Robertson, known as the "Booty Bandit," to beat and forcibly sodomize other prisoners in return for extra food and tennis shoes.

Decker is also charged with threatening and intimidating Dillard in an attempt to keep him quiet about the rape, with fabricating documents to hide it, and with orchestrating the rape of a second prisoner, Melvin Davis, by ...

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 Altizer, wrote in November 1997 that Powhatan Correctional Center's "M Building" imperils both prisoners and staff.

"It is strongly recommended... this building be abandoned and occupants relocated into new prison facilities," Williams wrote, underlining the words "strongly recommended" for emphasis. Her report said the building "jeopardizes the safety of both inmates and staff" because the locking system doesn't meet the fire code.

Guards can open the cells on each of the building's three tiers by pulling a lever. But about 30 cells-- a so-called prison within a prison -- have double steel doors that have to be unlocked individually in the event of fire.

In addition, the building has only one exit and one stairwell, both on the same end of the cell block, wrote Williams. That would force some prisoners and guards to fight through choking, blinding smoke the length of the building to reach safety.

"M ...

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 claim. The court further held, however that the battery did not rise to the level of an Eighth Amendment violation.

This case accrued in September 1993, when an Attica prisoner threatened to file a grievance against a guard for taking his ID. According to the prisoner, the guard then struck him across the face, neck and eyes several times, while daring him to file a complaint. The guard's version of events was strikingly different.

The court noted that prisoners have a constitutional right under the First Amendment to petition the government for redress of their grievances, and that prison officials may not retaliate against them for exercising that right. The court found the prisoner's conduct of threatening to file a complaint against the guard was protected behavior.

The court acknowledged the conflicting factual scenarios, but noted that a reasonable jury could conclude that the guard's alleged behavior ...

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 Project is funded by grants from the private prison industry including CCA, Wackenhut, Cornell, U.S. Corrections Corporation and Correctional Services Corporation that amount to $50,000 to $60,000 annually. The money is channeled as unrestricted donations through the University of Florida Research Foundation. Documents supplied by the university indicate that the Project received over $250,000 between 1990 and 1996; according to Dr. Thomas the amount is more than $400,000. Although Thomas's salary is paid by the university his expenses and summer salary ($26,845 in 1997) are funded by the Research Foundation.

In an interview with The National Times Thomas admitted he had money invested in "substantially all" of the private prison companies, but refused to say how much. On April 25, 1997 the Wall Street Journal reported that Thomas was being named a board member of the CCA Prison Realty Trust; he receives an ...

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 case for the same reason. The first, 77 F.3d 34, was previously reported in the October '96 issue of PLN .

This matter began in 1989 when a prisoner at New York's Clinton correctional facility filed a civil rights complaint in federal court against several Clinton prison officials. Ten days after initial process was served on the defendants, the prisoner was placed in the LPP on the pretense that he refused to accept a mandatory work assignement.

In 1991, the prisoner brought the instant lawsuit against members of the Clinton Program Committee, alleging that they assigned him to the LPP in retaliation for his filing of the earlier lawsuit. In November 1994, the district court granted summary judgment for the defendants, adopting the magistrate judge's report and recommendation.

On appeal, the first panel held the magistrate judge resolved a potentially crucial evidentiary issue against the prisoner, finding summary ...

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 did not change the outcome of the case. The old cite should not be used. See: Scott v. Albury , 156 F.3d 283 (2nd Cir. 1998).

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 and federal constitutions.

Tommy Metcalf, a Washington state prisoner, pleaded guilty to two counts of aggravated murder in 1990. In 1994 the legislature enacted RCW 72.09.111, which mandates the seizure of 5 to 35% of all money earned by prisoners at prison jobs. In 1995 the legislature enacted RCW 72.09.480 which mandates the seizure of 35% of all funds sent in to prisoners from sources outside the prison. Metcalf filed a Personal Restraint Petition (PRP) and writ of mandamus in the state supreme court arguing he should be allowed to withdraw his guilty pleas because the statutes were not in effect at the time he pleaded guilty. The supreme court dismissed the writ of mandamus and transferred the PRP to the court of appeals for division one.

As a preliminary matter, the appeals court held that it could properly review the constitutionality of punitive state statutes ...

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 violated a state statute, and that Mr. Duffy was therefore entitled to monetary and equitable relief under state law. The Court subsequently denied the defendants' motion for reconsideration.

The Court's order is important for several reasons. The order confirms, for example, that parties can seek relief in federal court under both federal and state law. Under 28 U.S.C. § 1367, federal district courts have "supplemental jurisdiction" to consider state law claims that are filed along with one or more federal claims and present similar factual issues. This aspect of the Court's ruling applies in all federal cases, whether based in part on Washington law or on the law of some other state. It teaches us that state claims can and should be presented in federal court, along with factually-related federal causes of action.

The Court's order also examines the scope of the so-called " Pennhurst doctrine," a ...

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 for reconsideration in light of an amendment to California's death penalty statute which made lethal injection the primary means of execution in California. See: 117 S.Ct. 285 (1996). Under the 1996 amendment to California Penal Code § 3604, prisoners who do not choose their means of execution will be executed by lethal injection.

On remand the appeals court remanded the case to the district court with instructions to dismiss the case and dissolve its prior injunction. The court held that because the plaintiffs had not chosen the gas chamber as their means of execution they lacked standing to present a ripe challenge to the constitutionality of the gas chamber. Since California prisoners cannot choose their means of execution until they are within ten days of being executed it remains to be seen if anyone can litigate the matter.

Judge Pregerson dissented: "The law has pulled a fast one with ...

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 officials was dismissed.

The case began in August 1993 when PLN contributing writer James Quigley was transferred from Baker Corr. Inst. to Hardee Corr. Inst. Upon his arrival, Quigley's property was subjected to an inventory search by Hardee guard Michael Franchio, who seized numerous items, including a newspaper clipping (an obituary of a recently deceased relative) and two photographs featuring naked women. Franchio told Quigley the obituary was contraband because it was "altered" (i.e. cut out of a newspaper) and that the photo was subject to Hardee's" no nude photo" policy.

After exhausting his administrative remedies, Quigley filed suit in federal district court alleging that the newspaper clipping and photos were seized in violation of his First, Fourth, Eighth and Fourteenth Amendment rights. Franchio, Hardee Asst. Supt. Jimmie Atmore and three other FDOC employees were named defendants. Quigley sought a declaratory judgement, injunctive relief (including return of ...

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 had failed to properly train and supervise his employees.

The sheriff filed a motion to dismiss the suit, claiming he was entitled to Eleventh amendment immunity as a state employee. The district court denied the motion and the sheriff filed an interlocutory appeal. The court of appeals affirmed and remanded.

The Eleventh amendment prohibits federal suits against the states. However, counties and cities are not considered a "state" for Eleventh amendment purposes. In Scott v. O'Grady, 975 F.2d 366 (7th Cir. 1992) the court held that Illinois sheriffs were county employees, and therefore not entitled to Eleventh amendment immunity. The defendants in this case asked the court to reconsider that holding in light of McMillian v. Monroe County, 117 S.Ct. 1734 (7th Cir. 1997), which held that Alabama sheriffs were state employees entitled to Eleventh amendment immunity.

The court held that Scott was correctly decided and McMillian ...

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 halfway house in Wisconsin. Because Hudson suffered from epilepsy, the halfway house issued him daily doses of an anti-seizure medication, Dilantin. Hudson tested positive for cocaine and was transferred from the halfway house to a county jail. His medication did not accompany him.

During induction at the county jail, Hudson informed officers of his epilepsy and need for medication. They noted the information on the jail's forms. Hudson didn't receive the medication despite repeated requests and, after eleven days without medication, suffered a grand mal seizure. Three days later, his medication was sent from the halfway house to the jail.

Hudson filed a § 1983 suit against halfway house and jail officials and a jail nurse alleging violations of the Eighth Amendment by medical indifference. Upon learning the names of some of the John and Jane Doe defendants, Hudson moved to amend the complaint. However, the amended complaint was ...

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 investigated to determine which prisoners had attacked the guard. The investigation included intensive interrogation of any prisoners the CCA officials suspected might have information about the attack.

Wisconsin DOC administrators soon began receiving complaints from prisoners and the families of prisoners who'd been interrogated at WCF, claiming CCA employees had physically abused prisoners during interrogation in order to coerce the prisoners into answering questions. In October, after consulting with WCF managers, WDOC Secretary Michael Sullivan denied that any Wisconsin prisoners were abused during the interrogations.

Not satisfied with Sullivan's denial, the families of several prisoners retained attorneys to look into the abuse allegations. As those lawyers began turning up evidence to support the prisoners' claims, the WDOC decided to conduct its own investigation. WDOC officials travelled to Whiteville, where they questioned 51 prisoners and prison employees.

On November 10, the WDOC held a press conference, announcing that its ...

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 of marijuana with intent to distribute, felon in possession of firearm, and carrying a firearm during a drug-trafficking crime. He was sentenced to two 21-month concurrent prison terms for the possessions and a 60-month consecutive prison term for the carrying charge.

After Jeanes filed a 28 U.S.C. § 2255 motion, his carrying charge was vacated pursuant to Bailey v. United States, 516 U.S. 137 (1995) (firearm must be actively employed to support carrying charge). Having already served more than 21 months, he was released and placed on supervised release. Jeanes appealed the district court's denial of his motion for post-sentence modification, seeking to have his excess prison time served and good time earned credited toward his supervised release.

The Fifth Circuit noted this was a case of first impression in the circuit and using United States v. Joseph , 109 F.3d 34 (1st Cir. 1997), as authority ...

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 permission of the California parole authority and in agreement with New York parole authority to supervise his case.

Scotto met Armando Mei, a restaurant owner and entered into a written consultant agreement with him to develop his restaurant. This restaurant would serve liquor. Armando, already ill when he met Scotto, died a month later. Defendant Barbara Mei, Armando's daughter, assumed ownership of the business. She informed Scotto she had no intention of complying with the consultant agreement.

Scotto filed suit in the New York supreme court claiming breach of contract and obtained a preliminary injunction against Mei. Scotto claimed that Mei and her attorney, James O'Rorke, contacted Scotto's New York parole officer, Arcadio Almenas, in an effort to secure assistance of the Department of Parole (DOP) in preventing him from pursuing the state court action, and that Almenas agreed to do so.

Scotto asserted he was told ...

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 TDCJ's Director of Food Services, Jane Thomas, to purchase TVP from VitaPro Foods, a Canadian Company, for testing purposes. A bid specification was prepared and the TVP purchased through the General Services Commission (GSC), the state's purchasing agency. In November 1994, Collins issued a "Decision Memorandum" indicating that Texas Correctional Industries (TCI) would purchase TVP from VitaPro for distribution to TDCJ and other tax-supported entities. TDCJ also entered into a one-year contract with VitaPro to purchase TVP without contracting through GSC.

In July 1995, TDCJ entered a second contract with VitaPro obligating TDCJ to purchase thirty-nine metric tons of TVP a month for five years at a total cost of over $33 million. Although neither contract specifically states it, the intent was for the TCI to repackage TVP and resell it to other government agencies, especially jails and prisons, both in Texas and in other states. Due to ...

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 suit claiming Waupun Correctional Institution (WCI) guard Steven Boyd used excessive force by forcibly removing Kapfhammer from his cell in order to search it. Boyd moved for summary judgment claiming he did not use excessive force and, in the alternative, even if he did, he was entitled to qualified immunity from money damages. The court denied Boyd's motion.

Analyzing Kapfhammer's claim under Hudson v. McMillian , 503 U.S. 1, 112 S.Ct. 995 (1992) the court was unable to determine if the use of force in this case "was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Boyd claimed he used only that force necessary to get Kapfhammer out of his cell so it could be searched, and he denied applying force with malicious or sadistic intent.

"A problem with Mr. Boyd's argument is that he never ...

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. Code r. 33-3.006(l)(b), a Florida Department of Corrections' rule, which allows Florida state prison officials to confiscate as contraband, any item or article passed from one prisoner to another without official authorization. The plaintiffs, four state prisoners, filed suit claiming the rule was unconstitutional, as applied to legal pleadings and materials.

The prisoners, all in 24 hour lockdown status on Florida State Prison's (FSP) death row, claimed that FSP officials were confiscating and destroying their legal documents, whenever found in possession of other prisoners without official approval. Although not apparent in the opinion, this practice has been largely confined to FSP, and is unquestionably intended to obstruct litigation, as other reading material is routinely passed without authorization, yet neither confiscated nor destroyed.

In spite of the prisoners' claim that FSP officials threatened them with disciplinary action for attempting to give or receive legal assistance, the trial ...

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 Michigan Handicappers Civil Rights Act (MHCRA) claim.

David Key is a MI state prisoner. He claimed the defendants engaged in impermissible discrimination against him on the basis of his hearing disability. There is no indication in the opinion as to what were the specific underlying facts of the impermissible discrimination. He filed suit seeking damages and injunctive relief under the ADA, 42 U.S.C. §§ 12313 et seq., and the Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794. He also sued under the MHCRA.

The defendants filed a motion for summary judgment on the claim for money damages claiming they were entitled to qualified immunity because their conduct did not violate a clearly established statutory or constitutional right of which a reasonable person would have known.

The court denied summary judgment because it found the majority of the circuits and district courts found the ADA applied to prisoners ...

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 during an attorney visit with the prisoner at the Mesa County Detention Facility (MCDF). Holmes was criminally charged with violating 18-8204(2)(L), 6 CRS (1997), which prohibits the introduction of contraband into detention facilities. The statute lists specific items that are prohibited and also allows local jail administrators to ban items they consider security risks. The statute requires that visitors receive reasonable notice of what items are considered contraband.

The trial court dismissed the charges against Holmes, ruling that the legislature had impermissibly delegated its authority to jail administrators. The Colorado supreme court affirmed dismissal of the charges against Holmes, but on different grounds.

The supreme court gave a detailed analysis of the Colorado constitution's limitations on the delegation of legislative authority. The court held that the contraband statute did not delegate legislative authority to jail officials and was therefore constitutional on its face.

The court gave a ...

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 receiving any and all publications from publishers or vendors. The stated reason for this policy was a concern about fire hazards and prisoners using paper to conceal their cell interiors. The policy was supposedly only temporary until a new jail was built or the current jail's population significantly diminished. The only source of reading materials for the jail prisoners was two items from the jail's library cart. The cart did not include newspapers.

The Indiana Civil Liberties Union filed suit on behalf of the jail prisoners claiming the publications ban violated the First amendment rights of the jail's prisoners. The case was certified as a class action and the court granted summary judgment to the plaintiffs and enjoined enforcement of the publications ban, holding it was unconstitutional.

The court held that television is an inadequate substitute for publications, especially publications which espouse religious or political views outside ...

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 training exercise. Alas, not all the participants knew it was an exercise. Jail guard Shawn Davidson spent 10 minutes handcuffed and begging for his life from a masked, gun toting jail guard. The drill also took place during visiting hours and two visitors cowered in a booth as the shackled Davidson was held "hostage" by the "intruder." Assistant sheriff Sean McDermott, who runs the jail, acknowledged serious mistakes were made and promised a full investigation. Both Davidson and the "hostage taker" guard have been too traumatized to return to work. The visitors and a prisoner have already filed suit over the incident

D.C. : On September 28, 1998, the Agriculture Department announced a recall of 2 million pounds of beef, pork and chicken patties shipped by Zartic Inc. of Cedartown, GA. The patties were sold exclusively to prisons, hospitals and schools and may be contaminated with salmonella.

D.C. : The ...

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 photo, drawing, magazine or pictorial showing frontal nudity. Prisoners found in possession of such material faced disciplinary punishment.

Jonathan Mauro, a pretrial detainee, filed suit after his subscription to Playboy was censored. Mauro claimed the policy violated his First amendment right to free speech. The district court granted summary judgment to the defendants, holding the policy was reasonably related to legitimate penological interests. The court of appeals reversed and remanded.

At the outset the court rejected the Jail's contention that the sexually explicit materials banned by the policy "act as discriminatory conduct in the form of a hostile work environment" and were thus not entitled to First amendment protection. The court also rejected the defendants' claim that Mauro lacked standing to challenge the policy as it applied to anything other than Playboy. The court observed that "A facial overbreadth challenge may be brought to protect the First amendment rights ...

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 under 18. After the passage of Megan's Law, N.J.Stat.Ann. 2C:7-2(b)(1), he was assigned a community notification Tier Two Designation with Tier One registration and notification requirements, indicating that he was considered "low risk" for reoffending. In December 1996, Doe's parole officer notified him that, pursuant to an unpublished internal Bureau of Parole (BOP) policy (BOP internal standard 802.5d), he must notify his employer of his parole status and criminal history or the BOP would. No published rule or statute mandated employer notification.

Doe sued under 42 U.S.C. § 1983 and moved for a preliminary injunction to prevent such disclosure. The BOP claimed notification was necessary to ascertain whether Doe was complying with the parole stipulation that he not work in a place with employees under 18 years old. Doe certified to the court that no persons under 18 were employed ...

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 or direct appeal.

In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994) [ PLN , Sep. 1994] the supreme court held that prisoners could not file civil rights suits on issues where a ruling in their favor would cast doubt on the validity of their criminal conviction. This requires that would be plaintiffs must first successfully challenge their conviction or parole revocation in state or federal court and then file suit under § 1983 seeking damages. This doctrine was recently extended to prison disciplinary hearings involving the loss of good time credits. See: Edwards v. Balisok, 117 S.Ct. 1585 (1997) [ PLN , July, 1997]. Heck has also been applied to parole proceedings. See: Butterfield v. Bail, 120 F.3d 1023 (9th Cir. 1997).

In the August, 1998, issue of PLN we reported Spencer v. Kemna, 118 S.Ct. 978 (1998) where the supreme court held that civil rights plaintiffs ...


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