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Prisoner Education Guide

Prison Legal News: April, 1999

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Volume 10, Number 4

In this issue:

  1. The Mental Torture of American Prisoners: Cheaper Than Lab Rats, Part 2 (p 1)
  2. Medical Care Unconstitutional in Puerto Rico Prisons (p 3)
  3. From the Editor (p 4)
  4. PLN Sues Michigan DOC over Censorship of The Celling of America (p 4)
  5. Michigan Department of Corrections Fined $300,000 in Contempt Case (p 5)
  6. Former Jail Prisoner Awarded $8,000 for Abuse; PLRA Attorney Fee Limit Inapplicable to Juveniles (p 5)
  7. Jailhouse Journalism: The Fourth Estate Behind Bars by James McGrath (Book Review) (p 6)
  8. Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (Book Review) (p 7)
  9. PLRA Exhaustion Requirement Not Retroactive (p 8)
  10. PLRA Fee Provisions Apply to All Pending Cases in the Fifth Circuit (p 8)
  11. Eighth Circuit Upholds, Defines IFP Provisions (p 8)
  12. IFP Application Not Required When Suit Filed (p 8)
  13. Physical Injury Requirement Not Retroactive (p 9)
  14. No Leave to Amend Complaint for IFP Litigants (p 9)
  15. PLRA Doesn't Ban Class Actions (p 9)
  16. Trouble in Mind: ADX – The Fourth Year (p 10)
  17. Daring Death Row Escape Shakes up Texas (p 13)
  18. Oregon "Predatory Sex Offender" Label Requires Notice and Hearing (p 14)
  19. De Facto Ban on Live Testimony Unconstitutional (p 14)
  20. South Carolina Parole Elimination Violates Ex Post Facto (p 15)
  21. Illegal Detention Violates Substantive Due Process (p 15)
  22. Jury Awards $8,000 in California Prison Assault (p 16)
  23. New York Prisoners Have Right to Staff Assistance and Witness Testimony (p 16)
  24. Seventh Circuit Defines Court Access Claims Involving Property (p 18)
  25. Failure to Give Summary Judgement Notice is Reversible Error (p 19)
  26. Indiana May Not Deny Pay and Educational Programs to Protective Custody Prisoners (p 20)
  27. No Appeal Allowed in Louisiana Consent Decree Dissolution (p 20)
  28. U.S. District Courts Have No Authority To Grant Or Deny Credit Toward Sentence (p 21)
  29. Denial of Good Time Because of Jury Sentencing Choice Violates Equal Protection (p 21)
  30. $45,000 Award in BOP Tort Claim Medical Neglect Suit (p 22)
  31. Released Sex Offender Not "In Custody" for Habeas (p 22)
  32. New York Jail Brutality Suit Settled for $3,500 (p 23)
  33. Timothy "Little Rock" Reed Released on Parole (p 23)
  34. $1,500 in Disabled Prisoner Work Suit (p 23)
  35. $355,000 Verdict in New York Asthma Death (p 23)
  36. Mauro Vacated for Rehearing (p 24)
  37. Parole Change May Violate Ex Post Facto; Change Can Be Challenged Via § 1983 (p 24)
  38. BOP Violent Offender Notification Policy Overinclusive (p 25)
  39. Twenty-Four Hour Notice of Disciplinary Charges Required (p 25)
  40. Seizure of Trust Account Interest Violates Takings Clause (p 26)
  41. Denial of Handicapped Jail Facilities Set for Trial (p 27)
  42. News in Brief (p 28)
  43. Cane Seizure Can Violate Eighth Amendment (p 29)
  44. $250,000 FTCA Beating Judgment Reversed (p 29)

The Mental Torture of American Prisoners: Cheaper Than Lab Rats, Part 2

The use of prisoners in medical experiments didn't begin or end with the radiation experiments conducted on them from the 1940's to the 1970's. [See: Part I - Can Prisoner's Glow in the Dark? ,PLN , March 1999]. As thinly disguised psychological laboratories, supermax prisons and other forms of isolating prisoners from the outside world continue the tradition of using prisoners as "lab rats."

Psychological experimentation on prisoners raises serious cultural, legal, political, and ethical questions for the same reasons that human radiation and biochemical experiments on them did. Also, just as the radiation experiments conducted on prisoners was for the purpose of understanding the effects of radiation on military personnel and the general population, psychological experiments conducted on prisoners have a larger purpose than finding more effective ways to torment them. One of those purposes is to determine how political authorities can affect, manipulate, and/or control the behavior and responses of people in the general population under various conditions.

One of the fathers of today's mental experimentation on prisoners is M.I.T. psychology professor Dr. Edgar Schein. He became one of the western world's foremost authorities on psychological coercion by studying the methods ...

Medical Care Unconstitutional in Puerto Rico Prisons

Medical Care Unconstitutional In Puerto Rico Prisons

A federal court in Puerto Rico has held that the lack of medical care in the Puerto Rican prison system is unconstitutional.

This is a class action under 42 U.S.C. § 1983 brought by Puerto Rican prisoners seeking to have unconstitutional conditions in the Puerto Rican prison system changed. It has been in litigation for eighteen years and the court has issued injunctions and orders instructing the prison officials to improve the medical care in the prison. Despite the many orders and an eight-year-old court-ap- proved medical and mental health plan, medical treatment for Puerto Rican prisoners has not improved sufficiently to meet constitutional muster.

The court's opinion starts with the opinion of its monitor that "there is virtually no likelihood that the defendants will ever achieve compliance with the court's orders in the areas of medical and mental health care or will ever provide services in these areas that comport with even the most basic constitutional requirements." The opinion then goes on to list in exhaustive detail the many failings of the prison system regarding medical care and the findings of its many expert witnesses that the prison system ...

From the Editor

In January the Washington prison system implemented new mail censorship rules. This is in line with the national trend by prisons and jails who seek to cut off the flow of information to prisoners and also keep outsiders as ignorant as possible of what is happening behind prison walls.

Among the changes is a ban on prisoner-to-prisoner correspondence. This means prisoners cannot write to Dan or myself directly, and vice versa, as was done in the past. Letters sent to Dan or myself with a prison return address on the envelope or which are sent to PLN for forwarding to us with a prison number or facility name in the address or which are not written in the third person (i.e., if they say the author is a prisoner) will most likely be censored by our captors. Communications intended for the editors should be sent to PLN and should be separate from that pertaining to book orders, subscriptions, etc.

PLN will, of course, continue publishing as before. The only difference is that a lot of the prisoner mail that Dan and I used to respond to will now most likely go unanswered until the ban on prisoner-to-prisoner mail is ...

PLN Sues Michigan DOC over Censorship of The Celling of America

On February 8, 1999, PLN sued the Michigan Department of Corrections in U.S. District Court in Ann Arbor, Michigan. In April, 1998, prison officials at the Huron Valley Men's Facility censored a copy of PLN 's critically acclaimed book The Celling of America: An Inside Look at the U.S. Prison Industry , (TCOA) sent by PLN to prisoner Larry Lynch. PLN was not notified of the censorship by prison officials.

Lynch appealed the censorship which was upheld at each level of the censorship review process. Prison officials claimed that TCOA "advocates violence, riots." Lynch informed PLN of the censorship and PLN appealed, to no avail. Dan Bolden, deputy director of the MI DOC, upheld the censorship of TCOA, claiming it did not contribute towards the MI DOC's ability to maintain good order and security in its prisons. In August, 1998, TCOA was added to the MI DOC's list of banned publications.

The class action lawsuit includes two sets of plaintiffs. PLN and TCOA publisher Common Courage Press assert that their First amendment right to free speech is being violated by the MI DOC's ban of TCOA. Representing all vendors, publishers and others who send items ...

Michigan Department of Corrections Fined $300,000 in Contempt Case

On July 23, 1998, a federal court in Michigan imposed contempt sanctions against the Michigan Department of Corrections for its failure to comply with previous court orders. This is the latest installment in the decades long suit filed by women prisoners in Michigan seeking treatment equal to that given male ...

Former Jail Prisoner Awarded $8,000 for Abuse; PLRA Attorney Fee Limit Inapplicable to Juveniles

The court of appeals for the Eighth Circuit held that there was sufficient evidence that the county's policies regarding the housing of juvenile detainees, resulted in overcrowding, which led to a juvenile being beaten, raped and otherwise tortured by other pretrial detainees. The court further held that because the ...

Jailhouse Journalism: The Fourth Estate Behind Bars by James McGrath (Book Review)

Reviewed By Paul Wright

Little has been written about the prison press. Jailhouse Journalism is a first step in chronicling the history of prison publications. The book is organized largely in chronological order combined with biographical information about various prison editors. In the book's introduction Morris outlines the frequent hostility of prison officials to prison publications, the censorship that occurs when prisoncrats are the de facto censors of what news is "appropriate" and the trials and tribulations of prisoner editors.

In some respects Jailhouse Journalism is a history of the American prison system. The first prison paper was started in 1800 in a debtor's prison. Forlorn Hope was published by New York lawyer William Keteltas. Keteltas was in prison for being unable to pay his debts, which was common at the time. Abolishing debtor's prisons was the paper's main goal. Subscriptions cost $3 a year, allowing its independent publication. At one point Forlorn Hope ran an ad for the sale of a slave which prompted outrage among some of its readers and later led to the paper supporting abolition. It appears to have published for less than a year.

The idea of prison papers did not ...

Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (Book Review)

Review by Alex Friedmann

"The expansion of suffrage toall sectors of the population is one of the United States' most important political triumphs .... Today, all mentally competent adults have the right to vote with only one exception: convicted criminal offenders." So begins Losing the Vote, a collaborative report by The Sentencing Project and Human Rights Watch released in October, 1998.

Thirty-two states prohibit ex- offenders on parole from voting; 29 deny the ballot to probationers and 14 permanently disenfranchise convicted felons. Only three states permit incarcerated felons to participate in elections: Maine, Massachusetts and Vermont [Utah voters revoked prisoners' state constitutional right to vote in a Nov. 3, 1998, referendum; prisoners' voting rights in Massachusetts are presently under attack (See: PLN, Dec. 1997).]

An estimated 3.9 million U.S. citizens (about 2% of the adult population) are currently or permanently disenfranchised due to felony convictions. The right to vote can be revoked for relatively minor offenses such as marijuana possession or theft; persons who plea bargain for suspended sentences may unknowingly forfeit their voting rights.

Disenfranchisement and the concept of "civil death" descended from medieval European law. Such laws were incorporated into U.S. law after independence from England ...

PLRA Exhaustion Requirement Not Retroactive

The court of appeals for the Ninth circuit held that the administrative remedies exhaustion provision of 42 U.S.C. § 1997e(a), as amended by the PLRA, does not apply retroactively to prisoner actions filed prior to its enactment date of April 26, 1996. The court also held that the prisoner substantially complied with a court-ordered exhaustion requirement under pre-PLRA provisions.

Stephen Bishop, an Arizona prisoner, brought a pre-PLRA 42 U.S.C. § 1983 action alleging unhealthy air in the prison. The district court dismissed Bishop's complaint for failure to file a court-provided "Notice of Exhaustion of Administrative Remedies" form, as ordered by the court. The order was issued pursuant to the pre-PLRA § 1997e(a) provisions allowing the judge the discretion of ordering the exhaustion of administrative remedies, provided that the remedies "meet certain minimum standards."

In response to the district court's exhaustion order, Bishop filed a writ of mandamus with copies of his grievance and administrative appeal, and asserted "that Arizona's internal prison remedies did not meet the [pre-PLRA] standard."

Without ruling on whether the Arizona DOC's grievance procedures were in compliance with the minimum standards, the appeals court held that it was an abuse ...

PLRA Fee Provisions Apply to All Pending Cases in the Fifth Circuit

The court of appeals for the Fifth circuit held that 28 U.S.C. § 1915(a), which requires that prisoners ultimately pay all filing fee costs, applies retroactively to cases filed before the PLRA's enactment, if they are still pending. In Strickland v. Rankin County Corr. Facility, 105 F.3d 972 (5th Cir. 1997)[PLN, June, 1997] the court held that the PLRA's fee requirements applied to all appeals still pending in the Fifth circuit at the time of the PLRA's April 26, 1996, enactment. Prisoners with appeals pending at the time were required to refile their notice of appeal with the required prison trust fund statement and affidavit.

"To maintain consistency in our interpretation of § 1915(a)(2), and seeing no reason why we should treat the case sub judice differently simply because it was in the district rather than the appellate court when the PLRA went into effect, we extend Strickland's holding to cases pending in the district court on the PLRA's effective date."

The court held that prisoners who had filed lawsuits before the PLRA's enactment, which are still pending in the district court can be required to pay the filing ...

Eighth Circuit Upholds, Defines IFP Provisions

The court of appeals for the Eighth circuit, in two separate rulings, has upheld and defined the In Forma Pauperis (IFP) provisions of the PLRA.

Kenneth Murray filed a petition under the All Writs Act, 28 U.S.C. § 1651, claiming a court clerk had violated his rights by refusing to file his civil rights lawsuit unless he paid a partial filing fee as required by 28 U.S.C. § 1915. The appeals court held that the IFP provisions of the Prison Litigation Reform Act (PLRA), codified in § 1915, are constitutional.

The court observed that prisoners have a due process liberty interest in their trust fund accounts, but by filing suit and agreeing to pay the filing fee in installments they receive all process that is due. See: Murray v. Dosal, 150 F.3d 814 (8th Cir. 1998). District judge Waters, sitting on the panel by designation, filed a concurring opinion. Judge Waters noted that in his district in Arkansas prisoner suits have declined dramatically since the PLRA was enacted. Judge Heaney filed a dissent. "I am deeply troubled when constitutional rights are trampled in the name of political expediency, and prisoners are certainly an easy target." Judge Heaney stated ...

IFP Application Not Required When Suit Filed

The court of appeals for the Eighth Circuit held that the PLRA does not require the filing of a trust fund account statement and an In Forma Pauperis (IFP) application at the same time the complaint is filed. Walter Garret, a Missouri state prisoner, mailed a lawsuit and IFP application to a federal district court on September 23, 1996. Garrett sought damages from police over a search that had occurred on September 30, 1991. The court clerk stamped the complaint "received" on September 24 but returned it to Garrett with a letter stating he had not submitted a certified copy of his prison trust fund account statement as required by 28 U.S.C. § 1915.

Garrett mailed the complaint back to the court with an uncertified trust fund statement. The clerk again returned the complaint with instructions that Garrett file a certified statement. On October 16 Garrett sent the court the lawsuit with a certified trust fund account statement. The district court held the lawsuit was filed on October 17, 1996, and dismissed it as frivolous because it was barred by Missouri's five year statute of limitations.

The court of appeals reversed and remanded. "For purposes of the statute ...

Physical Injury Requirement Not Retroactive

The court of appeals for the Ninth circuit held that 42 U.S.C. § 1997e(e) does not apply retroactively to suits filed before the Prison Litigation Reform Act's April 26, 1996, enactment. Byron Swan, a California state prisoner, filed suit in 1994 claiming a guard had announced over a loudspeaker that unless other prisoners "did something" to Swan, they would not receive a fan. Apparently no injury resulted from the guard's actions.

The district court dismissed the suit, holding the complaint did not satisfy the PLRA's physical injury requirement. 42 U.S.C. § 1997e(e) states "No federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a showing of physical injury."

In a brief ruling, the appeals court reversed and remanded. The court held that 42 U.S.C. § 1997e(e) "applies only to actions that were brought after enactment of the PLRA, and not to actions that had already been filed." The court was careful to note it was not expressing a view as to whether § 1997e(e) would bar actions such as Swan's filed ...

No Leave to Amend Complaint for IFP Litigants

In an important procedural ruling, the court of appeals for the Ninth circuit held that the Prison Litigation Reform Act (PLRA) had overruled prior circuit rulings requiring that In Forma Pauperis (IFP) litigants be given an opportunity to amend their complaints before the suit Is dismissed for failing to state a claim. The court also held this new standard does not apply to cases where the filing fee is prepaid in full.

Max Lopez, a California state prisoner, challenged various conditions of his confinement in a control unit. The district court dismissed the suit on the defendants' motion for summary judgment. The court of appeals affirmed.

Under 28 U.S.C. § 1915(e)(2) courts must dismiss prisoner lawsuits that fail to state a claim upon which relief can be granted. Under Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987) prisoners had to be given leave to amend their complaints after the court told them how their complaint was deficient. Lopez was not given notice of the defects in his complaint nor an opportunity to amend it. "We hold, pursuant to the PLRA, that a court can no longer, at its discretion, provide an opportunity for the pro ...

PLRA Doesn't Ban Class Actions

A federal district court in Georgia held that the Prison Litigation Reform Act (PLRA) does not ban class action suits by prisoners. In the October, 1998, issue of PLN we reported the Georgia DOC's settlement of a class action suit involving the beating and brutalization of Georgia prisoners during so called "shakedowns" of prisons. When the suit was first filed as a class action, the defendants argued that the PLPA had done away with class action suits by prisoners.

The court disagreed and held that the PLRA affected only the relief available to prisoner litigants, not the ability to initiate class action suits themselves. The court cites several post PLRA rulings that support this proposition.

The court gives a detailed summary and analysis of the standards courts should consider when granting class certification. Attorneys researching class certification issues will find this ruling helpful. Readers should note this ruling was issued on September 11, 1997, but not published until December 1, 1998. Since the underlying case was settled, this ruling is final. See: Anderson v. Garner, 22 F. Supp.2d 1379 (ND GA 1997).

Trouble in Mind: ADX – The Fourth Year

for Skip Martin

"I will hold the candle, til it burns down my arm, I'll keep taking punches until their will grows tired, I will watch the sundown until my eyes go blind, oh I will make my way through one more day." Pearl Jam

I've been locked in ADX for more than three years. When I awake each morning it still feels like I'm being slapped in the face, only harder. My time in ADX was preceded by more than five years of lockdown at Marion Penitentiary, which was preceded by five more years of high security units. It's not all of me you see in these words the rest are indictable as thought crimes against The State.

Previously in PLN I wrote about ADX from STEP 1 the boxcar cells. Physical and emotional isolation. Separation policies. Use of restraints. The attack on one's senses that slowly corrodes, eating away at life and humanity. (See: "Trouble Coming Every Day: ADX -The First Year," PLN , Vol. 8 No. 6).

STEPS 2 through 4 of ADX's insidious, insulting obstacle course came with incremental privileges bandaids after enduring the suffocating boxcar cells. From STEP 1 to ...

Daring Death Row Escape Shakes up Texas

It was a Thanksgiving that will long be remembered by Texas prisoners and guards alike. The first escape of a Texas death row prisoner since Raymond Hamilton, a member of the Bonnie and Clyde gang, busted out in 1934.

Shortly after midnight on November 27, 1998, seven men awaiting execution in Texas made a desperate dash for freedom from the Ellis Unit in Huntsville. Six were halted in their tracks after tower guards opened fire. Officials say none of the six were injured. They are Gustavo Garcia, Henry Dunn, James Clayton, Howard Guidry, Eric Cathey and Ponchai Wilkerson.

The seventh prisoner, Martin Gerule, braved the fusillade of gunfire and scrambled over two 10-foot perimeter fences topped with razor wire.

For seven days more than 500 law-enforcement officers, dog teams, and heat-seeking helicopters searched for Gerule, while the 1,700 Ellis Unit prisoners remained locked down 24 hours a day, all visitation and other out-of-cell activities canceled.

Prison officials say the seven men stuffed pillows and blankets in their beds ahead of time to make it appear they were still in their cells, then went to an outside recreation yard.

Prison spokesperson Larry Fitzgerald said it's believed they used a ...

Oregon "Predatory Sex Offender" Label Requires Notice and Hearing

Oregon "Predatory Sex Offender" Label Requires Notice and Hearing

The Oregon Supreme Court ruled that due process requires that Oregon sex offenders receive notice and an evidentiary hearing before the Board of Parole and Post-Prison Supervision (Board) may designate them as "predatory sex offenders."

In 1993 the Oregon Legislature enacted a community notification law which requires state and local corrections agencies to provide notice to the community when certain convicted sex offenders designated as "predatory sex offenders" are released into the community. Under the statute, the Board must designate a person as a predatory sex offender if he or she is convicted of one or more of a specified group of sex crimes and "exhibits characteristics showing a tendency to victimize or injure others." ORS 181.585(l).

In 1990, Anthony Noble was convicted of rape, sodomy and kidnapping and was sentenced to a period of incarceration. Prior to his release from prison, in 1995, the Board issued an order designating him as a predatory sex offender.

Noble appealed the Board's decision, raising various constitutional challenges to both the substance of the statutory scheme as a whole and to the procedures utilized by the Board in reaching its decision ...

De Facto Ban on Live Testimony Unconstitutional

The court of appeals for the Seventh Circuit held that the Stateville (Illinois) Correctional Center policy of denying virtually all live witness testimony at prison disciplinary hearings, which could result in revocation of good-time credits, violates due process. However, the court vacated the district court order requiring prison officials to hold new disciplinary hearings or to restore good-time credits to those affected by the illegal policy.

In 1994, a Stateville prisoner brought a class action suit under 42 U.S.C. section 1983, claiming that the prison's witness policy was unconstitutional. Essentially, the policy denied all live witness testimony at disciplinary hearings, unless the witness fortuitously happened to be in the area attending a hearing himself.

In 1995, the district court certified a class consisting of all Stateville prisoners who: (1) are charged with disciplinary violations, (2) request witness testimony, and (3) risk losing good-time credits as a result of the hearings. Two years later, the district court granted summary judgment against the nominal plaintiff because he actually benefited from live testimony, but the court declined to decertify the class. 982 F.Supp. 615 (ND IL 1997); [ PLN , August 1998].

With respect to the plaintiff class, the district court ...

South Carolina Parole Elimination Violates Ex Post Facto

The South Carolina supreme court held that the retroactive statutory elimination of parole eligibility for violent offenders violates the ex post facto clause provisions of the United States and South Carolina constitutions.

Ronnie Phillips, a South Carolina state prisoner, pled guilty in 1987 to four counts of first degree burglary. At the time of his plea Phillips had a prior robbery conviction. However, armed robbery was not defined as a "violent" crime at the time Phillips committed it. See: SC Code.Ann § 16-160. Another statute, SC Code.Ann § 24-21-640 denied parole eligibility to offenders serving a second or subsequent conviction for a violent crime. At the time of his 1987 guilty plea Phillips was eligible for early release from prison on parole.

In 1993 § 24-21-640 was amended to state that it had prospective effect only. In 1995 the statute was amended again, eliminating language about the law's prospective effect. Phillips was notified by the state that due to his 1982 robbery conviction he was no longer parole eligible. Phillips filed a Post Conviction Relief (PCR) petition in the Greenville County court of common pleas, claiming the retroactive denial of parole eligibility violated his rights under the ex post facto ...

Illegal Detention Violates Substantive Due Process

The court of appeals for the Seventh Circuit held that the detention of an individual for 57 days in a county jail on a civil contempt warrant "shocks the conscience" and violates substantive due process. The court further held that this right was clearly established, and the defendants were not entitled to qualified immunity.

On August 17, 1994, a bench warrant was issued for the arrest of sixty-two year-old Walter Armstrong for failure to appear for a contempt hearing regarding child support arrearages. Sheriff's deputies arrived at Armstrong's house on Friday, August 26, to execute the warrant, but they suggested that Armstrong voluntarily surrender on Monday to avoid a "weekend stay" in the county jail.

On Monday, Armstrong reported as proposed, but a series of bureaucratic snafus, beginning with a transposed case number, resulted in Armstrong's continuous confinement well beyond the period normally required to resolve these contempt citations. Although Armstrong periodically protested his confinement, it was not until Armstrong's employer hired an attorney that he gained his release.

Once freed, Armstrong filed a civil rights action in federal court against the sheriff, the jail commander, and three county jail guards in their individual and officials ...

Jury Awards $8,000 in California Prison Assault

On November 23, 1998, a federal jury in Sacramento, California, awarded state prisoner Johnny Garcia $8,000 in damages stemming from a prison assault. On January 3, 1994, Garcia (a member of the Northern Mexican prison gang, AKA Norteño) was placed in administrative segregation (ad seg) at New Folsom on ...

New York Prisoners Have Right to Staff Assistance and Witness Testimony

The court of appeals for the Second Circuit held that New York state prisoners have a right under the Due Process Clause to have disciplinary hearing officers provide staff assistance and to obtain requested documentary evidence and witness testimony. The court further held that these rights were clearly established in June 1995, precluding qualified immunity to the defendant hearing officer.

In 1995, when Auburn Correctional Facility was about to implement its incipient double-bunking policy, a prisoner was allegedly overheard making seditious statements in opposition to the policy. As a result, he was charged with violating 7 N.Y.C.R.R. 270.2(B)(5)(iii) Rule 104.12. Within days, he was transferred to Southport Correctional Facility.

On June 30, 1995, a Tier III disciplinary hearing was convened, at which time the hearing officer offered to assist the prisoner in preparing his case, in lieu of normal staff assistance. The prisoner accepted, but he also completed a list of witnesses and a request for documents he needed for his defense. The hearing was then adjourned to allow the hearing officer to locate the documents and contact the witnesses.

When the hearing was reconvened on July 24, the hearing officer ...

Seventh Circuit Defines Court Access Claims Involving Property

The court of appeals for the Seventh circuit held that prisoners cannot base court access claims on the loss of property unless that loss results in an ongoing hindrance or actual injury to an underlying claim. The court also discussed pleading standards in civil rights cases.

Fred Nance, an Illinois state prisoner, was transferred from one prison to another in order to be closer to the state court he was scheduled to appear in a motion to ask for leave to withdraw a guilty plea. Nance had a box of personal possessions and photocopies of court cases he wanted to have handy when arguing to withdraw his guilty plea. Over his protests the box of property was shipped separately and "disappeared," never to be seen again.

Nance sued the prison property clerk, J.D. Vierrege, claiming he deprived Nance of his right of access to the courts by misdirecting his property. The district court dismissed the suit, holding Nance had not pleaded any facts showing Vierrege had acted deliberately The court of appeals affirmed.

The appeals court held the district court erred in dismissing the suit on the basis that it did. Under Fed.R.Civ.P. 8 plaintiffs do ...

Failure to Give Summary Judgement Notice is Reversible Error

The court of appeals for the Ninth Circuit, en banc, reaffirmed that pro se prisoner litigants are entitled to fair notice of the requirements of the summary judgment opposition rule. The court also held that the notice requirement may be met by the other party rather than just the district court. The court held that failure to give the notice, while subject to a harmless error analysis, will rarely be harmless error in cases involving pro se prisoner litigants. This ruling is extremely important for litigants in the Ninth Circuit because it spells out the requirements of the summary judgement notice rule and holds that failure to observe the rule will constitute reversible error in the majority of cases.

Lee Rand, an HIV+ California state prisoner, filed suit challenging numerous conditions of confinement related to being placed in a prison infirmary due to his illness. The defendants moved for summary judgment on all of Rand's claims. Their motion contained a section titled "Notice of Rules Relating to Summary Judgement." The court granted summary judgment on some of the claims and denied it as to others. In a second motion for summary judgment the remainder of Rand's claims were ...

Indiana May Not Deny Pay and Educational Programs to Protective Custody Prisoners

The Court of Appeals of Indiana has held that the Indiana Department of Corrections (DOC) violated state law, Title 11, Section 11-10-5-1 when it denied all education programs to prisoners in protective custody. The court held that the DOC must pay prisoners voluntarily placed in the Protective Custody Unit (PCU) the same pay as involuntarily placed prisoners.

Mark A. Faver and Rodney DeHart, Indiana state PCU prisoners filed this class-action suit alleging that the unequal treatment of PCU prisoners violated their equal protection rights guaranteed by the federal constitution, the Indiana Constitution, and several state statutes. PCU prisoners are denied access to education programs, correspondence courses, and other programs available to general population prisoners. Additionally, prisoners voluntarily placed in PCU do not receive the $0.65 per day "state pay" given general population prisoners and PCU prisoners who participate in employment, educational or vocational programs or the $0.65 per day "idle pay" given to other administrative segregation prisoners. Most of the prisoners' claims were settled prior to trial. After a two-day bench trial, the trial court decided the remaining claims against the prisoners. The prisoners appealed.

The Court of Appeals of Indiana held that the fact that "state pay ...

No Appeal Allowed in Louisiana Consent Decree Dissolution

The court of appeals for the Fifth circuit held that it lacked jurisdiction to hear an appeal to a district court ruling that dissolved virtually all consent decrees governing prisons and jails in the state of Louisiana because the plaintiffs did not file a notice of appeal in a timely manner. This ruling illustrates the importance of understanding and complying with the Federal Rules of Civil Procedure.

Since 1969 federal courts have overseen the operation of virtually all jails and prisons in Louisiana. Most lawsuits over jail and prison conditions were resolved with consent decrees setting population caps and prisoner-staff ratios. Hamilton v. Schriro is a class action suit begun in 1969 over jail conditions throughout the state. Williams v. Edwards is a class action suit started in 1971 over prison conditions throughout the state. In 1981 all the prison and jail consent decrees and class action suits were consolidated and placed before federal district court judge Frank Polozola.

In 1996 counsel for the Williams plaintiffs filed a motion to dissolve all consent decrees over all state, parish (county) and city jail facilities housing Department of Corrections prisoners, except for the penitentiary at Angola and some juvenile prisons. The decrees ...

U.S. District Courts Have No Authority To Grant Or Deny Credit Toward Sentence

The court of appeals for the Second circuit held that district courts do not have the authority to order the Federal Bureau of Prisons (BOP) to either grant or deny credit or to disregard the BOP's sentence calculation.

A federal prisoner, Peter Thomas Whaley, was convicted of a drug offense and carrying a firearm during the commission of a drug offense. He plead guilty and was sentenced to 77 months for the underlying offense, a consecutive 5-year term for the firearm offense, and a 3-year term of supervised release.

After serving his entire sentence for the underlying drug offense and 508 days for the firearm offense, Whaley's conviction on the firearm offense was vacated under Bailey v. United States, 516 US 137 (1995). Having fully served his sentence for the drug offense, he was released and began serving his 3-year term of supervised release. He was found guilty of having violated the conditions of his supervised release after serving about one year under supervision and sentenced to a 6-month term.

The BOP determined, pursuant to its Program Statement (policy) 5880.28 (Sentence Computation Manual), that 6 months (180 days) of the 508 days that Whaley had served in ...

Denial of Good Time Because of Jury Sentencing Choice Violates Equal Protection

The Fifth Circuit court of appeals held that a sheriff violated the Equal Protection Clause of the Fourteenth Amendment when he promulgated a policy of granting good time to county prisoners sentenced by a judge and denying it to prisoners who elected to have a jury sentence them.

Jeffery "Zeal" Stefanoff, a Texas prisoner, was convicted of misdemeanor possession of marijuana and sentenced to 180 days in the Hays County Jail. Stefanoff requested that the Hays County Sheriff Paul Hastings award him good time under a Texas statute allowing the discretionary granting of good time. The sheriff denied the request.

Stefanoff filed suit under 42 U.S.C. § 1983, alleging violations of his equal protection and First Amendment rights in Hastings's denial of his request for discretionary good time. Hastings admitted he had a policy of denying good time to prisoners who elected to receive their sentence from a jury while granting it to those sentenced by a judge.

Hastings defended the policy, claiming it was designed to defer to the "conscience of the community as expressed" by juries. He also stated that he would have denied the good time even without the policy because Stefanoff disrupted jail operations ...

$45,000 Award in BOP Tort Claim Medical Neglect Suit

Afederal district court in Texas has awarded a pro se federal prisoner $45,000 under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, for medical neglect by the United States Bureau of Prisons (BOP) in failing to transfer him to a medical. facility.

Wali Muhammed, a federal ...

Released Sex Offender Not "In Custody" for Habeas

Released Sex Offender Not "In Custody" for Habeas

In a case of first impression, the Ninth Circuit ruled that a sex offender who has completed his sentence, but who must register under a so-called "Megan's Law," is not "in custody" for purposes of federal habeas corpus.

In 1990, Elbert W. Williamson was convicted in Washington state court of one count of child molestation. Williams served one year of community placement and was discharged from his sentence in August, 1994.

In August, 1995, Williamson filed a petition for habeas corpus challenging the validity of his conviction. The district court held that Washington state's requirement that Williamson register as a sex offender placed him "in custody" for purposes of federal habeas corpus relief, but dismissed his petition on other procedural grounds.

On appeal, the Ninth Circuit affirmed dismissal, but on different grounds, holding that Williamson is not "in custody" by virtue of having to register as a sex offender. The court offers a brief history of rulings defining who is "in custody" for purposes of federal habeas corpus.

A parolee is in "custody" because parole "imposes conditions which significantly confine and restrain freedom." Similarly, a person who was sentenced to ...

New York Jail Brutality Suit Settled for $3,500

On September 25, 1998, the City of New York settled a brutality suit for $3,500. Edward Massey, a prisoner at the Anna M. Kross Center In East Elmhurst, New York, was attacked by several jail guards after he protested the beating of another prisoner. Massey suffered bruises and lacerations ...

Timothy "Little Rock" Reed Released on Parole

Timothy "Little Rock" Reed Released on Parole

On December 17, 1998, Timothy "Little Rock" Reed was reinstated to his Ohio parole following a five year extradition battle. Reed, a former prison activist, fled Ohio In 1993 when he was accused of violating his parole conditions six weeks before his parole was due to end. Reed found refuge in new Mexico where the courts refused to extradite him, finding that Ohio prison and parole officials sought to retaliate against him for his criticisms of prison policies. [ PLN , July, 1998, "New Mexico Supreme Court Grants Asylum to Little Rock Reed."] The U.S. supreme court later ordered Reed's extradition to Ohio. See: New Mexico ex rel Ortiz v. Reed , 118 S.Ci. 1860 (1998). [ PLN , Sep. 1998].

Reed was arrested at his lawyer's office in Albuquerque when he showed up for a deposition as he had refused to surrender to police for extradition to Ohio. Reed was swiftly extradited to Ohio for his parole revocation hearing. Parole hearing officer Walter Hoff found Reed guilty of violating four conditions of his parole but reinstated parole. When Reed completes the remaining six weeks of parole he will be recommended for release.

The ...

$1,500 in Disabled Prisoner Work Suit

The Eighth Circuit court of appeals has upheld the award of $1,500 against prison officials who forced a prisoner to perform manual labor which violated his medical work restrictions and resulted in injury.

German Williams, an Arkansas state prisoner, was assigned a medical classification of M-2P (no prolonged stooping ...

$355,000 Verdict in New York Asthma Death

On November 23, 1998, New York court of claims judge Nicholas Midley Jr. awarded the family of Peter Farace $350,000 in damages for Farace's death and $50,000 in interest.

Farace, 25, died of an asthma attack on February 9, 1986 at the Auburn Correctional Facility in New ...

Mauro Vacated for Rehearing

In the February, 1999, issue of PLN we reported Mauro v. Arpaio, 147 F.3d 1137 (9th Cir. 1998) which struck down as unconstitutional an Arizona jail's ban on sexually explicit material. The Ninth circuit has ordered that opinion withdrawn because a panel of 11 judges will rehear the case en banc. PLN will report the outcome when a final ruling is issued. See: Mauro v. Arpaio, 162 F.3d 547 (9th Cir. 1998).

Parole Change May Violate Ex Post Facto; Change Can Be Challenged Via § 1983

Parole Change May Violate Ex Post Facto; Change Can Be Challenged Via § 1983

In two separate rulings the court of appeals for the District of Columbia circuit held that changes to parole eligibility schemes may violate the ex post facto clause and such changes can be challenged via 42 U.S.C. § 1983 rather than by habeas corpus. The court also held that the denial of access to prison treatment programs may violate equal protection. These rulings will be useful to anyone challenging retroactive changes to parole board rules.

In the first case, Clarence Blair-Bey filed a habeas corpus petition in federal court claiming that revisions in the parole consideration process enacted after he was sentenced violated his due process and ex post facto rights. The district court dismissed the petition, holding federal courts lack jurisdiction to hear habeas petitions filed by D.C. prisoners. The court also ruled against Blair-Bey on the merits. The court held Blair-Bey's habeas petition was a civil action within the meaning of 28 U.S.C. § 1915, requiring him to pay the filing fee. The court of appeals reversed and remanded.

At the outset the court held, as every other circuit court to ...

BOP Violent Offender Notification Policy Overinclusive

The court of appeals for the Third Circuit held that a conviction for simple possession of a weapon by a convicted felon is not a "crime of violence" within the scope of 18 U.S.C. section 4042(b), a law which requires federal prison officials to notify local authorities prior to release of any prisoner convicted of a crime of violence. The court also held that a petition improperly filed under the habeas corpus statute should be treated as though it had been properly filed as a complaint for declaratory judgment.

In 1993, Zuliken Royce consented to a search of his business by Secret Service agents. During the search, the agents uncovered an unloaded 9 mm "Mac 10" machine gun. Royce was subsequently found guilty of unlawful possession of a machine gun, and because he had been previously convicted of a felony, of possession of a firearm by a convicted felon.

While Royce was incarcerated on these charges, the BOP classified him, under BOP Program Statement No. 5162.02(7), as having committed "crimes of violence." As a result of this classification, Royce became subject to the provisions of section 4042(b).

After exhausting his administrative remedies, Royce petitioned ...

Twenty-Four Hour Notice of Disciplinary Charges Required

Afederal district court in Indiana held that a prisoner's right to due process was violated when he was not provided with 24 hour notice of the disciplinary charges against him. Darnell Evans, an Indiana state prisoner, was infracted on charges of "giving anything of value." On the day of the hearing the charges were changed to "extortion." Evans was found guilty of the extortion charge and deprived of 180 days in good time credits.

Evans filed a petition for habeas corpus in federal court alleging violation of his right to due process because he was not allowed to call a witness on his behalf and he was not given 24 hour notice of the charges against him. The court agreed, and conditionally granted the writ on the issue of 24 hour notice. Prison officials were given 120 days in which to give Evans a disciplinary hearing with 24 hour notice of the charges against him or the sanctions would be expunged.

Under Wolff v. McDonnell , 418 U.S. 539, 94 S.Ct. 2963 (1974), prisoners are entitled to call witnesses on their behalf at disciplinary hearings. They are also entitled to 24 hour notice of the charges against them ...

Seizure of Trust Account Interest Violates Takings Clause

The Court of Appeals for the Ninth Circuit held that prisoners possess a constitutionally protected property interest in the interest earned on prisoner trust accounts.

The California Department of Corrections, (CDC), has established two separate types of trust accounts that prisoners may place their funds into during incarceration. The first, an "Inmate Passbook Savings Account," (IPSA), is administered by Bank of America and pays interest directly to the prisoner. The second, an "Inmate Trust Account," (ITA), does not pay interest to the prisoner. California Penal Code, § 5008 requires that any interest earned on ITAs be credited to an Inmate Welfare Fund rather than to the prisoners themselves.

CDC prisoners are not required to place their money into an ITA. But the failure to do so deprives them of canteen privileges and prisoners are not eligible to open an interest-bearing IPSA account unless they maintain an ITA with a minimum balance of $25.

Several current and former prisoners filed suit claiming that the policy of not paying interest on funds deposited in their ITAs constitutes a taking of private property for public purposes in violation of the Fifth and Fourteenth Amendments.

The district court dismissed the suit without leave to amend ...

Denial of Handicapped Jail Facilities Set for Trial

The court of appeals for the Ninth circuit held that a handicapped detainee was entitled to a trial to prove jail conditions were unconstitutional in light of his disability. On remand, the lower court was instructed to consider whether the plaintiff was involuntarily given anti-psychotic medications. The court also held the plaintiff was entitled to a jury trial on his claims.

Raymond Frost is a former Maricopa county (Phoenix), Arizona, jail guard who was shot in both legs during a gun battle with police. Frost was charged with various criminal offenses and spent his time in jail awaiting trial as a maximum security prisoner.

While in jail Frost had one leg in a cast and used crutches. He was briefly placed in the jail's handicapped housing unit but was later moved back to a non-handicapped unit. During this time Frost fell several times and rebroke his leg after being forced to climb several flights of stairs. The court dismissed most of Frost's claims on the defendants' motion for summary judgment. A bench trial was held on the remaining claims, after the district court held Frost's demand for a jury trial was untimely. The court ruled in favor ...

News in Brief

Azerbaijan : On January 8, 1999, 11 prisoners at the Gobustan prison camp rioted and took 28 guards hostage. Government officials agreed to the prisoners' demand of being flown out of the country. When the prisoners and their hostages boarded a bus they believed was going to take them to an airport, security forces opened fire, killing all the prisoners. Two soldiers were killed and 21 injured in the fighting. The prisoners included several members of the military imprisoned for their role in an attempted coup in 1996.

CA : On October 27, 1998, Merced county booking clerk Kelly Jeann Wills was arrested and charged with stealing money from prisoners booked into the jail. An investigation began after a prisoner complained the money he had with him at the time of his booking was not returned to him upon release. In a sting operation, a sheriff's department operative was booked into the jail with $126. Investigators found the money was not logged in on the operative's property sheet. Wills was detained and search at the end of her shift that day and found to be in possession of the $126.

Canada : On November 27, 1998, the reputed leader of Quebec ...

Cane Seizure Can Violate Eighth Amendment

Afederal district court in New York held that the seizure of a prisoner's medically prescribed cane by a guard can give rise to an Eighth Amendment violation. Because the guard's subjective intentions for seizing the cane were at issue, the court denied summary judgment on this point.

In 1994, a New York state prisoner filed a civil rights action against numerous DOCS officials, medical personnel and guards for their failure to provide him with adequate medical treatment, or for interfering with prescribed treatment.

The court characterized the prisoner's claims against the medical personnel as mere conclusory disagreements "about the type and amount of treatment that his condition warranted." As a result of this assessment, the court declined to "second-guess physicians' professional opinions ... based solely on [the prisoner's] unsubstantiated claims." Consequently, the prisoner's claims against the medical personnel were dismissed.

With respect to the administrative actors, the court found that these defendants "took appropriate, reasonable steps to investigate [the Prisoner's] complaints and remedy any problems that they found." Since there was "no evidence" that their "investigations were in any way flawed or biased," the administrative personnel were similarly absolved of liability.

The court, however, took ...

$250,000 FTCA Beating Judgment Reversed

The court of appeals for the Eleventh Circuit held that the discretionary function exception to the Federal Tort Claims Act (FTCA) shields the United States from liability for injuries sustained by a federal prisoner, as a result of an attack by another prisoner. A $250,000 judgment against the government was reversed because of lack of subject matter jurisdiction.

In February 1992, William Cohen was watching television in a common area of the minimum security Community Corrections Center at the federal prison in Jessup, GA. When Humberto Garcia changed the channel, Cohen objected and changed it back. Shortly thereafter, Garcia repeatedly beat Cohen over the head with a metal chair.

As a result of the attack, Cohen underwent neurological surgery for his injuries. Nevertheless, he could no longer walk normally, he now suffers from severe headaches, and he has permanent short-term memory problems and no sense of taste or smell.

The prisoner filed a tort action in federal court against the United States alleging that his injuries were the result of Federal Bureau of Prison (BOP) negligence. After a bench trial, the court awarded Cohen $250,000 in damages.

At trial and on appeal, Cohen's theory of liability was ...

 

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Disciplinary Self-Help Litigation Manual