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Prisoner Education Guide

Prison Legal News: May, 1999

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Volume 10, Number 5

In this issue:

  1. Tainted Plasma Traced to Arkansas Prison: Bill Clinton's Blood Trails (p 1)
  2. Jury Awards $2.3 Million for Slain San Quentin Prisoner, State Settles for $2.5 Milliion (p 3)
  3. No Liberty Interest in Ohio Ad-Seg Rules (p 4)
  4. From the Editor (p 4)
  5. Pennsylvania Ban on Writing by Mumia Abu-Jamal Enjoined (p 5)
  6. A Nation's Gratitude (p 6)
  7. Utah Jail Censorship Suit Settled for $68,682 (p 6)
  8. Illinois KKK Guard Loses Lawsuits, Goes to Prison (p 7)
  9. The Sounding Tree: Voices Along the Razor Wire, by Lee Dickenson (Book Review) (p 8)
  10. Private Prisons in the United States: An Assessment of Current Practice (Review of Report) (p 8)
  11. Behind the Razor Wire: Portrait of a Contemporary American Prison System (Review) (p 9)
  12. Publication Reviews (p 9)
  13. Public Access to Documents Resources (p 9)
  14. California Habeas Handbook: A Practical Guide to Habeas Law for California Prisoners (Review) (p 9)
  15. Individual Legislators May Intervene to Terminate Prison Suits (p 10)
  16. Prisoner Must Show Imminent Danger at Time of IFP Request to Avoid PLRA Three-Strikes Dismissal (p 10)
  17. Suicides Plague Florida Women's Prison (p 11)
  18. White Guard, Black Guard: Racism in Washington Continues (p 12)
  19. Grand Jury Reverses Indictment Against Jailers (p 17)
  20. Guard Raped, Entire Texas Prison System Locked Down (p 17)
  21. New Hampshire Prisoners Gain the Vote (p 18)
  22. Corcoran Shooting Death Suit Settled for $825,000 (p 18)
  23. New Jersey Guard's Killer Gets Life (p 19)
  24. Colorado Prisoner Acquitted of Kidnapping (p 19)
  25. New York Paroles for Sale (p 20)
  26. New Jersey Porn Ban Struck Down (p 21)
  27. News in Brief (p 22)
  28. 180 Days in SHU Not "Atypical and Significant" (p 23)
  29. 5th Circuit Upholds Mississippi Disenfranchisement Law (p 24)
  30. $4,000 Awarded to Paraplegic Prisoners Segregated Under Improper Conditions (p 24)
  31. Consenting to Have Magistrate Conduct Trial Not Waiver to Right to Jury Trial (p 25)
  32. County Bankruptcy Tolls FRCP 4(m) (p 25)
  33. District Court Can't Dismiss Appeal for Failure to Pay Filing Fee (p 25)

Tainted Plasma Traced to Arkansas Prison: Bill Clinton's Blood Trails

by Jeffrey St. Clair

The year Bill Clinton became governor of Arkansas, the Arkansas state prison board awarded a hefty contract to a Little Rock company called Health Management Associates (HMA). The company got $3 million a year to run medical services for the state's awful prison system, which had been excoriated in a ruling by the U.S. Supreme Court as an "evil place run by some evil men."

HMA not only made money from providing medical care to prisoners, but it also started a profitable side venture: blood mining. The company paid prisoners $7 a pint to have their blood drawn [about half what urban skid road blood suckers pay for winos' blood]. HMA then sold the blood on the international plasma market for $50 a pint, with half of that going to the Arkansas Department of Corrections.

Since Arkansas is one of the states that does not pay prisoners for their labor, prisoners were frequent donors at the so-called "blood clinic". Hundreds of prisoners sold as much as two pints a week to HMA. The blood was then sold to pharmaceutical companies, such as Bayer and Baxter International; to blood banks, such as the Red Cross ...

Jury Awards $2.3 Million for Slain San Quentin Prisoner, State Settles for $2.5 Milliion

by W. Wisely

On Monday, November 30, 1999, a federal jury awarded more than $2.3 million in damages to the family of a prisoner shot to death by a San Quentin guard. The ten jurors found Mark Adams, killed March 1994 while fighting with another prisoner on the exercise ...

No Liberty Interest in Ohio Ad-Seg Rules

The court of appeals for the Sixth circuit held that Ohio prisoners have no state created liberty interest in remaining free of administrative segregation (ad-seg). Alvin Jones, an Ohio state prisoner, filed suit claiming that a 2k year placement in ad seg violated his right to due process. The district court granted summary judgment to the defendants and the court of appeals affirmed.

Jones was placed in ad seg in 1993 after a riot at the Southern Ohio Correctional Facility (SOCF) in Lucasville. [ PLN , June, Dec. 1993] Jones is serving a 15-25 year sentence for aggravated assault. Jones was afforded an ad seg hearing in 1993 but refused to speak due to a pending criminal investigation. In December, 1995, prosecutors told prison officials they were not prosecuting Jones on any charges stemming from the rebellion. Jones was later infracted and found guilty in a prison disciplinary hearing of killing a guard. Jones' lawsuit challenged only the period between April, 1993 to January, 1996, that he spent in ad seg. Apparently Jones is still in ad seg.

The court of appeals held that under Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293 (1995) Jones was unable to show ...

From the Editor

Welcome to the ninth anniversary issue of PLN . Many people, supporters and detractors alike, are amazed by PLN 's longevity. We're not amazed. We're proud, not to mention weary. It takes an incredible amount of commitment and hard work to keep PLN going.

A lot of the commitment comes from you, our readers, especially those of you who stick with us for the long haul and reaffirm your commitment with an annual renewal donation. To that core of dedicated PLN subscribers, I offer my most sincere thank you.

Of course, it all starts with you subscribers. But in order to serve you each month, it takes an INCREDIBLE amount of work from PLN 's editors, staff, and a-dedicated core of volunteers. I would like to thank Fred, Matt, Rollin, Sandy, Jimmy, Ellen, Curtis, Dan A. and Dan T., Daniel, Wes, George, A.C., and Lorna.

Appreciation is also due to Walter and the gang at Prompt Printing who have always been there for us, gone the extra mile, and done it with a smile. I would also like to thank a number of attorneys who have assisted PLN , including Bob Cumbow, Mickey Gendler, John Midgley, Dan Marville, Leonard ...

Pennsylvania Ban on Writing by Mumia Abu-Jamal Enjoined

The court of appeals for the Third circuit held that a district court erred when it refused to grant a Preliminary Injunction (PI) to PLN columnist Mumia Abu-Jamal to enjoin a Pennsylvania Department of Corrections (DOC) rule prohibiting him from writing. Aside from being an important ruling for prisoner writers it also illustrates the great lengths to which prisoncrats will go in order to silence their captive critics.

Mumia Abu-Jamal is a Pennsylvania prisoner on death row. The Pennsylvania DOC has a rule which prohibits prisoners from engaging in a business or profession. After Abu-Jamal published his first book "Live from Death Row" and did several radio shows, influential reactionary groups such as the Fraternal Order of Police (FOP) expressed their public indignation that Abu-Jamal was gaining access to the media. Pennsylvania prison officials then began to open, read and copy Abu-Jamal's legal mail outside his presence, ostensibly to enforce the business and profession rule.

Abu-Jamal filed suit claiming the business and profession rule violated his First and Fourteenth amendment rights. At the time Abu-Jamal was in segregation for "engaging in the profession of journalism." [Editor's Note: Shortly before his 1995 execution date PLN editor Paul Wright wrote ...

A Nation's Gratitude

Many governments have been founded on principles of subordination and serfdom of certain classes of the same race... [Such] were, and are, in violation of the laws of nature. Our system commits no such violation of nature's laws. With us, all the white race, however high or low, rich or poor, are equal in the eyes of the law. Not so with the Negro. Subordination is his place. He, by nature, or by the curse against Canaan, is fitted for that condition which he occupies in our system.

--Alexander Stephens' "Cornerstone Speech" (1861) (After election, Vice-President, Confederate States)

The history of the United States is one that is rife with Stephens' principles, one that is central to the way the nation is organized, formulated and designed. One may ask, how can you say such a thing, based on an old quote from a Rebel, or a politician who was speaking for the South before the end of the Civil War? When one examines history, for generations after the war, we can see echoes of this same spirit, reflections of the same spirit that animated the warriors of the South.

Were it not for the militant and determined warrior-spirit of ...

Utah Jail Censorship Suit Settled for $68,682

On October 28, 1998, a class action suit challenging various censorship rules at the Davis County Jail in Utah was settled for $11,682 in damages and $57,000 In attorney's fees. In 1995 the Davis County Jail enacted policies banning books, newspaper clippings and sexually explicit materials. The ...

Illinois KKK Guard Loses Lawsuits, Goes to Prison

On December 4, 1998, former Illinois prison sergeant Wallace Scott Weicherding (64) was sentenced to 5 years, 10 months in federal prison after being convicted on conspiracy and weapons charges. Weicherding was arrested with five other men who called themselves The New Order. The original Order was a neo Nazi group that carried out a series of robberies, bombings and murders before being repressed by the FBI.

Weicherding and his co-conspira- tors were convicted of plotting to blow up federal buildings, the Southern Poverty Law Center (SPLC) in Alabama; poison the water supplies of major cities; rob banks and armored cars; and murder a federal judge, SPLC civil rights lawyer Morris Dees, film director Steven Spielberg and federal reserve chairman Alan Greenspan. A jury rejected Weicherding's claim that the group's plans, recorded on hundreds of hours of tapes by an FBI snitch who infiltrated the group, were only drunken boasts.

Weicherding had previously been employed as a sergeant at the Graham Correctional Center, an Illinois state prison. Co-workers claimed he was distributing Ku Klux Klan literature at the prison and attempting to recruit other Illinois DOC employees to join the KKK. Weicherding was fired by the Illinois DOC ...

The Sounding Tree: Voices Along the Razor Wire, by Lee Dickenson (Book Review)

Reviewed by Daniel Burton-Rose

Lee Dickenson writes in the voice of an embittered veteran. For more than a decade and a half he manned a war zone, where the monotonous routine was sharply punctuated by life or death crises. He believed in his work and gave his heart to it, goes the time-worn narrative, but ran up against structural restraints on his ability to care. The state, instead of being his friend, ate him up and spat him out. But the war Dickenson fought--and is still fightingis on the domestic front. He's a jailer, occupying the control booths of Connecticut's prisons.

The Sounding Tree is a collection of vignettes on the numbing senselessness of prison inhumanity. Dickenson wrote it as an attempt to expiate his prison-engendered deep rage which, at rock bottom, nearly drove him to suicide. His anger stems from the cold incompetence he feels permeates the running of prisons on every level.

Dickenson, one of those increasingly rare guards blighted with intelligence and humanity, understands that in the most smoothly run prison prisoners and guards can exert checks--not always violenton each others' excesses. His writing also reveals an understanding that the current "let them burn in ...

Private Prisons in the United States: An Assessment of Current Practice (Review of Report)

Reviewed by Alex Friedmann

In 1997 Congress instructed the Attorney General's office to undertake a study of prison privatization, to include a review of legal issues and existing research regarding cost effectiveness. The study was conducted by Abt Associates, Inc. through a cooperative agreement with the National Institute of Corrections, and the resulting report was released in October, 1998.

The report presents a comprehensive overview of prison privatization based on a survey of the Federal Bureau of Prisons, Puerto Rico, the District of Columbia and 48 states. Only Alaska and Maine did not respond; the report does not encompass local governments.

Previous studies of prison privatization conducted in Tennessee, Louisiana, Florida, Texas and Arizona are evaluated and critiqued. The report notes that methodological problems in the studies make it difficult to assess privately-operated facilities vis-a-vis public prisons. Other factors also preclude accurate comparisons - e.g., differences in the security classification of prisoner in public and private prisons. "Some of the more extravagant claims made on behalf of prison privatization can be traced to inappropriate handling of these issues," the authors of the report state.

The report concludes that there is insufficient data to assess the cost effectiveness and performance ...

Behind the Razor Wire: Portrait of a Contemporary American Prison System (Review)

by Michael Jacobson Hardy.

136 pp, 50 BW photos. New York University Press

Reviewed by Paul Wright

"Prisons do their dirtiest work in the dark. The evil they perpetrate depends on a kind of willed ignorance on the part of the public. To prevent the worst abuses and realign our prison system with enlightened notions of justice and rehabilitation as well as punishment, the public must play an active role: awareness of what happens behind the walls is a crucial first step."

The above statement from an essay by John Edgar Wideman illuminates Behind the Razor Wire . The book consists of essays by Angela Davis, Wideman, Marc Mauer and James Gilligan, accompanied by a series of black and white photos of prisons and jails, prisoners and guards in Massachusetts.

The essays focus on putting the photos into a socio-political context. The heart of the book are its stark photos of the prison world itself. The photos serve to put a real, human face on the American gulag. I was disappointed that in the photo captions the people pictured are not identified by name, instead they are identified only as "prisoners" or "guards." I think this continues the dehumanizing process of ...

Publication Reviews

Voices Behind the Walls is a bi-monthly newsletter published by Pennsylvania prisoners. Each issue covers news and events in the PA prison system as well as commentaries on the criminal justice system. Subscriptions are $10 for prisoners and $20 for everyone else. Contact: VBTW, P.O. Box 474, Harrisville, PA 16038. Webpage: http://lexpage.com/page/volces.

The Prison Activist Handbook is a booklet published by the Florida Prison Action Network. The booklet's subtitle is "How to advocate for your loved one In the Florida prison system. How to make sure your voice is heard by your legislators. How to go about making positive changes in the prison and criminal justice systems." It gives an outline of the legislature, how a bill becomes law, lobbying, etc. It gives a detailed outline of the Florida Department of Corrections, its organizational structure, how to complain of misconduct, addresses and phone numbers of prison officials and more.

The booklet also has a chapter on networking and activism to change the criminal justice system. It also includes the Florida DOC's rules on visiting. The booklet is a must for prisoners, activists and concerned citizens in Florida. The booklet also serves as a ...

Public Access to Documents Resources

The Reporters Committee for Freedom of the Press is a trade organization of journalists. The Committee publishes a number of very reasonably priced, authoritative and comprehensive publication that are invaluable to journalists, muckrakers, those seeking access to government information and those litigating information access issues.

Available materials include a booklet and CD-ROM on How to Use the Federal Freedom of Information Act , comprehensive guides on state public disclosure laws in all 50 states; a First Amendment handbook to help editors and reporters deal with legal issues; a state by state survey on the ability to legally tape phone calls; a guide to access to state and federal court records, police records, electronic records and much more.

I have ordered several of the booklets for use In publishing PLN and gathering government documents for news stories. The materials are uniformly well produced, accurate, informative and useful. For more information contact: RCFFP, 1101 Wilson Blvd. Suite 1910, Arlington, VA 22209. (703) 807-2100.

California Habeas Handbook: A Practical Guide to Habeas Law for California Prisoners (Review)

This 37 page booklet by attorney Kent Russell is designed for pro se California prisoners to understand the time limits and filing requirements of the federal Anti-Terrorism and Effective Death Penalty Act (AFDPA). Russell uses easy to understand language to concisely and accurately explain AEDPA and the exhaustion of state remedies. The booklet will be useful to California prisoners challenging their convictions who need an explanation of the state and federal habeas system. Russell also uses the booklet to pitch his services for prisoners who can afford them. In that regard the book deserves an "A" for creative marketing. The booklet costs $20. Contact: Kent Russell; Russell and Russell; 2299 Sutter St.; San Francisco, CA 94115.

Individual Legislators May Intervene to Terminate Prison Suits

Individual Legislators May Intervene To Terminate Prison Suits

by Matthew Clarke

The court of appeals for the Fifth Circuit held that, under the Prison Litigation Reform Act (PLRA), individual state legislators could intervene in prison release litigation.

In 1972, David Ruiz, and other Texas state prisoners initiated class-action civil rights litigation under 42 U.S.C. § 1983 challenging the conditions of confinement in the Texas prison system (TDCJ) which resulted in federal court oversight of TDCJ. In 1990, the parties began negotiations which resulted in a 1992 Final Judgment terminating most of the court oversight, but retaining population caps on some of the prisons in the system. In March 1996, TDCJ moved to terminate the Final Judgment and all supervision of TDCJ by the courts.

On April 26, 1996, the Prison Litigation Reform Act (PLRA) was signed into law. It included a provision allowing "any State or local official or unit of government whose jurisdiction or function includes the appropriation of funds" involving prisons or prisoners to intervene in a prison suit and seek its termination under the PLRA. In May, 1996, two Texas State legislators needing an issue to generate publicity for their reelection campaign filed a motion to ...

Prisoner Must Show Imminent Danger at Time of IFP Request to Avoid PLRA Three-Strikes Dismissal

The court of appeals for the Fifth Circuit has held that a prisoner who is subject to the three-strikes provision in the Prison Litigation Reform Act (PLRA) must show that he is under imminent danger of serious physical injury at the time he seeks to file in forma pauperis (lFP) his complaint or appeal.

Clifton Ray Choyce, Jr., a Texas state prisoner, sought to file a lawsuit IFP alleging that guards had assaulted him and threatened further assaults in retaliation for previously filed lawsuits. The district court dismissed the action pursuant to 28 U.S.C. § 1915(g), the PLRA "three strikes rule," after finding that at least four of Choyce's prior lawsuits had been dismissed and that, although he had shown he was in imminent danger when the incidents in the complaint occurred, he did not show he was in imminent danger at the time he filed the complaint. Choyce filed a motion to appeal IFP, alleging that he was still in imminent danger, which the court granted.

Noting that to grant permission to appeal IFP under the PLRA three strikes rule the court must determine that the prisoner is in imminent danger at the time he seeks ...

Suicides Plague Florida Women's Prison

Florence Krell, a 40-year-old mother of two serving an 18-month sentence for grand theft after she failed to return her boyfriend's rental car, hanged herself from her cell door at the Jefferson Corr. Institution on October 11, 1998. She had been at Jefferson, an all-female prison located about 30 miles east of Tallahassee, for less than a month; she was labeled a trouble-maker by prison authorities and placed in solitary confinement.

Krell had written letters to her mother and to a state judge describing mistreatment by guards. Following a Sept. 17 incident in which she wrote she had "lost it," Krell was pepper sprayed, stripped naked and confined in a cell without a mattress, bedding or running water. Four guards later arrived to remove "contraband" from her cell -- a plastic cup and a roll of toilet paper. She was left lying on the concrete floor, bruised and handcuffed, after she refused to stand up, nude, in front of male guards.

Prison records indicate that Krell repeatedly complained of abuse. She filed complaints with the inspector general's office, which were returned to prison officials for investigation. Her letters describing mistreatment were confiscated by prison employees the day before she ...

White Guard, Black Guard: Racism in Washington Continues

Charles Jackson and Collins Bailey, two of only a handful of African-American prison guards working at the Clallam Bay Corrections Center about 40 miles west of Port Angeles, were lost. They'd been on the way to an outdoor barbecue when the sun went down, turning the winding country roads of the state's north peninsula into a shadowy maze. They drove around aimlessly until they came upon a familiar car parked in a driveway. It belonged to a white co-worker at the prison, a man rumored to hold racist beliefs. At least one fellow guard claimed to have overheard him brag of membership in the Ku Klux Klan. But lost is lost, so the two headed up the walk to the front door. They knocked a couple of times. When the white guard answered and saw two black men standing on his stoop, he pulled out a gun and pointed it in their direction. "Didn't you read the sign?" he asked. "Niggers aren't allowed here." The man's wife, also a guard at the prison, joined her husband at the front door-they started to laugh, creating an eerie scene. "In a case like that, where we are ...

Grand Jury Reverses Indictment Against Jailers

A Galveston, Texas, grand jury decided to take back an indictment it had issued against four Galveston County sheriff's deputies after three of the four agreed to surrender their peace-officer licenses. The reversal left some law experts scratching their heads.

"I've never heard of that before," said University of Houston law professor Bob Schuwerk.

The four jailers, William Joe Brown, Robert Deem, Woodrow Naborne and John Tregre, faced various charges of official oppression, aggravated perjury and tampering with evidence in the reported July, 1998, beating of jail detainee Johnny Lands.

Assistant District Attorney Wayne Mallia said he did not direct the grand jury to reverse its earlier indictment.

"We weren't doing any favors for anyone," Mallia said. "I presented the grand jury its options, without favoring one, and it decided to accept the surrender of the licenses."

After the indictment was first handed down, Brown, Deem and Naborne offered to permanently surrender their licenses. Tegre, who was the only one of the four to testify about jailers falsifying statements about the July beating, did not offer to surrender his license. Tregre was the one who originally reported the incident to sheriff's deputy investigators.

"He effectively blew ...

Guard Raped, Entire Texas Prison System Locked Down

A female Texas Department of Corrections (TDC) prison guard was dragged into a cell, held hostage for two hours and sexually assaulted by a prisoner armed with an 8-inch piece of sharpened metal, according to several published news accounts.

The French Robertson Unit guard was conducting bed checks at 2:40 a.m. December 19, 1998, when convicted rapist Jesse Trevino Cortez, 22, opened his cell door, grabbed her and held her hostage for two hours, prison officials said.

"We don't know how Cortez managed to open his cell door," said Latham Boone, chief prosecutor for the TDC's Special Prosecution Unit [the Texas state prison system maintains its own prosecutors on staff.] "That is something we will be trying to determine."

Unnamed prison employees complained to the Abilene Reporter-News that the prison has had trouble with faulty cell door locks, and accused prison officials of trying to cover up the incident by issuing a press release that failed to mention the sexual assault.

The French Robertson Unit has had a lengthy history of unchecked brutality with countless prisoners beaten, shot and killed by guards since the prison opened in 1995 [no Texas prison has been the subject of ...

New Hampshire Prisoners Gain the Vote

ANew Hampshire Superior Court ruled that state laws prohibiting all incarcerated felons from voting violate the state constitution.

On September 4, 1998, state prisoner David J. Fischer sent a letter to the Rochester City Clerk to request "that you register me to vote in the next election and also that you send me an absentee ballot as well." In response, Fischer was sent a copy of state statute RSA 607-A:2, which prohibits felons from voting "from the time of his sentence until his final discharge."

Fischer filed suit in state court, arguing that Part 1, Article 11 of the NH state constitution extends the vote to "every inhabitant of the state of 18 years of age and upwards" unless that person has been convicted of "treason, bribery, or any willful violation of the election laws of this state or of the United States ..."

The court agreed that "nothing in the plain language of part 1, article 11 suggests that the framers intended to disenfranchise incarcerated felons or delegate such authority to the legislature."

The court further ruled that Mr. Fischer and "any other inmate who timely applied to register in the upcoming election ... shall be permitted, if otherwise qualified ...

Corcoran Shooting Death Suit Settled for $825,000

On November 10, 1998, the California Department of Corrections (CDC) settled a lawsuit involving the 1994 shooting death of prisoner Preston Tate for $825,000. Tate, a black gang member, was in the Corcoran prisons Security Housing Unit (SHU) when guards placed him in an exercise yard with rival Latino ...

New Jersey Guard's Killer Gets Life

Steven Beverly was convicted for the 1997 killing of a Bayside State Prison (New Jersey) guard. But two days later, November 11, 1998, the jury of seven men and five women said they were deadlocked on whether he should be executed. Under state law that means the judge could impose only a life term without parole.

Beverly, 39, stabbed Bayside guard Frederick W. Baker, 35, in the back with a makeshift ice-pick after Baker ordered Beverly and his homosexual cellmate separated. Baker had reportedly targeted Beverly for harassment for some time, and the two argued loudly just hours before the killing.

According to the verdict sheet for the penalty phase of Beverly's trial the jury unanimously agreed on two mitigating factors: that the Bayside administration permitted and fostered "an environment in which racism flourished" and that the prison administration "did not properly respond to complaints of Steven Beverly so as to minimize or eliminate the anger and frustrations which caused Steven Beverly to commit the offense."

The jurors also decided by an 11-1 vote that Beverly "was the victim of racial and sexual-orientation discrimination by the administration of Bayside State Prison." But they decided by an 8-4 vote that ...

Colorado Prisoner Acquitted of Kidnapping

Colorado state prisoner William Sojka may have had a "fool for an attorney" (he represented himself at trial). But a jury did acquit him of kidnapping, attempted murder and assault charges for allegedly taking guard Mary Henderson hostage, shocking her with an electrical cord and threatening to kill her at the Arkansas Valley Correctional Facility in 1992.

Sojka said he and Henderson staged the kidnapping so she could sue the prison system. Then, Sojka told the jury, he and Henderson plotted to have him plead insanity, spend a short time in the state mental hospital and finally split the proceeds from the lawsuit upon his release.

Sojka did indeed plead insanity at a 1994 trial but was found guilty nonetheless. And Henderson did file a suit against the prison system, claiming officials had been warned a kidnapping would take place, but the suit was eventually dropped. She also joined another guard's lawsuit alleging sexual harassment, but eventually withdrew from that suit, too.

Sojka won a second trial after he presented new evidence: a love letter he says Henderson wrote him, in which "Mary" says she loves "Bill" and is sorry she can't tell the truth about the kidnapping ...

New York Paroles for Sale

In January 1997 the parents of a young Korean prisoner walked into the Brooklyn offices of federal prosecutor Zachary Carter to report that a volunteer fund raiser for Republican Governor Pataki said he would use his influence to win parole for their son if they contributed to the Governor's campaign war chest. They contributed, but their son remains in jail. Thus began a federal investigation which brought about the grand jury indictment of Parole Commissioner Sean McSherry on counts including lying, perjury, and obstruction of justice, and the arrest of Ronald Hotaling, a former special assistant to the Division of Parole, charged with giving "false, evasive and misleading" information to a grand jury and to a special deputy in the investigation.

The scandal was first exposed in the Daily News April 1998 story of John Kim, "armed robber, ... who had two big assets: a model record as a [prisoner] and politically connected allies who contacted parole officials on his behalf." He had been sentenced in 1992 to 4 to 12 years. His father, Nam Soo Kim, is pastor of the Full Gospel Church of New York, one of the city's largest Korean congregations. The elder Kim hired attorney ...

New Jersey Porn Ban Struck Down

In two separate rulings a federal court in New Jersey held that a New Jersey statute prohibiting imprisoned sex offenders from receiving or possessing sexually oriented materials was unconstitutional. The two rulings consist of a preliminary injunction and a permanent injunction enjoining the statute.

The New Jersey legislature unanimously enacted NJSA 2C47-10 which prohibits prisoners at the Adult Diagnostic and Treatment center (ADTC), a prison for sex offenders in Avenal, from receiving or possessing "sexually oriented" materials. Two ADTC prisoners filed suit challenging the statute. The court issued a preliminary injunction enjoining the statute and another ruling making it a permanent injunction.

In its second ruling the court noted the intense criticism it had endured in local and national media after granting the preliminary injunction in this case. In a sad commentary on the politicized nature of prison litigation today, the court had to cite basic constitutional principles about free speech and invoke the memory of the Holocaust to justify its well reasoned ruling.

The court held the statute was unconstitutionally overbroad and vague. The court held there was no legitimate penological interest at stake. The state argued that the law was passed to aid in sex offender rehabilitation. "New ...

News in Brief

AR : On October 13, 1999, Mark Lucas escaped from the Miller County jail in Texarkana by sawing through a cell lock and running through open fire escape doors. Lucas, awaiting trial on murder charges, was later recaptured.

CA : In December, 1998, Sacramento sheriff's deputy Sandy Larson was killed and deputy Susan Rosenberg and Soledad prisoners James Columbus and Robert Fowler were injured when the jail van they were in crashed into a stalled big rig truck on a highway. The prisoners were being taken to a court hearing in Sacramento. Two other motorists were also injured.

CA : On December 12, 1998, Corcoran prison guard Francisco "Paco" Gavaldon was arrested on felony charges of conspiracy and solicitation of murder after authorities videotaped him arranging to pay another man $1,000 and a car to murder his estranged wife. Prison sources identified Gavaldon as a violent guard who frequently assaults prisoners. He was hauled before a state legislative committee in the summer of 1998 where he refused to answer questions about his role in a June 1995 beating of Corcoran prisoners. A week after his arrest, prison officials said Gavaldon was still employed as a guard, but presumably on leave while ...

180 Days in SHU Not "Atypical and Significant"

180 Days in SHU Not "Atypical and Significant"

A federal district court in New York held that 180 days in a Special Housing Unit (SHU) , along with loss of package, commissary and telephone privileges, does not give rise to a liberty interest sufficient to support a prisoner's due process claim.

In the spring of 1990, a New York state prisoner was found guilty in a prison disciplinary proceeding of possession of shanks in his cell. He was sentenced to 180 days in SHU and loss of privileges. The conviction was subsequently expunged from his record and the prisoner sued several prison officials for violating his civil rights.

This case was initially dismissed for an assortment of reasons, but the dismissal was reversed on appeal. Black v. Coughlin, 76 F.3d 72 (2nd Cir. 1996) [ PLN Oct. 1996]. On remand, the district court allowed the prisoner to file an amended complaint, and after discovery the parties filed cross-motions for summary judgment.

The court analyzed the prisoner's claim under Sandin v. Conner, 515 U.S. 472 (1995), and found that the conditions of disciplinary confinement essentially mirror those conditions imposed on prisoners housed in SHU for administrative confinement or other ...

5th Circuit Upholds Mississippi Disenfranchisement Law

The Court of Appeals for the Fifth Circuit affirmed a district court's denial of a Mississippi state prisoner's claim that he is improperly being denied the right to vote.

The Mississippi Constitution denies the right to vote to any person "convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy." Miss. Const. art. XII § 241 (1890).

While serving a prison term for armed robbery, Mississippi state prisoner Keith Brown filed suit claiming that § 241 did not apply to him because armed robbery was not expressly listed as a disenfranchising crime and, in the alternative, that § 241 violates the Fourteenth Amendment because it was enacted with racially discriminatory motives. Brown did not use the Voting Rights Act (42 U.S.C. § 1973) strategy which was detailed in Giving Cons and Ex-Cons the Vote, in the May, 1994 issue of PLN . The district court denied both claims and Brown appealed.

Agreeing with the district court's holding that "theft" necessarily includes the crime of armed robbery, the court rejected Brown's claim that § 241 does not apply to him.

During it's discussion of Brown's second claim, the court noted ...

$4,000 Awarded to Paraplegic Prisoners Segregated Under Improper Conditions

The Eighth Circuit court of appeals held that the administrative segregation prison conditions two paraplegic prisoners were subjected to were unconstitutional and upheld a total award of $4,000 in compensatory damages.

Bobby Franklin Simmons and Ricky Lee Marshall (plaintiffs), two paraplegic Arkansas state prisoners, sued officials of the Arkansas ...

Consenting to Have Magistrate Conduct Trial Not Waiver to Right to Jury Trial

The Fifth Circuit court of appeals held that a pro se prisoner who signed a consent to have a magistrate judge conduct his trial did not knowingly waive his right to a jury trial.

Kevin Jennings, a Texas state prisoner, filed suit under 42 U.S.C. § 1983, alleging excessive force by two male guards who, in retaliation for Jennings's verbal altercation with a female guard, took him to an isolated stairwell, beat him, and stomped on his handcuffed wrist, breaking the wrist.

The magistrate judge conducted an evidentiary hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). After determining that Jennings's complaint was not frivolous and ordering the defendant to file an answer, the magistrate judge asked Jennings to sign a "Consent to Jurisdiction by a United States Magistrate Judge" authorizing the magistrate judge to "conduct any and all further proceedings in the case" but not specifically mentioning a jury or jury trial. Jennings signed the consent.

Jennings filed a timely jury request pursuant to Federal Rule of Civil Procedure 38(b). The magistrate judge set the case for trial and conducted a bench trial without informing Jennings that the trial would be ...

County Bankruptcy Tolls FRCP 4(m)

The court of appeals for the Ninth Circuit held that a county's bankruptcy proceedings tolled Federal Rule of Civil Procedure (FRCP) 4(m) which gives plaintiffs 120 days in which to serve defendants with the lawsuit. In 1995 Gordon De Tie sued Orange County, California, and numerous employees claiming that Orange county jail guards had incited other prisoners in the jail to severely beat him while he was detained in the jail.

At the time De Tie filed suit Orange County was in Bankruptcy court after squandering its treasury in a pyramid investment scheme. Chapter 9 of the Bankruptcy Code stays the commencement of new court actions against parties who have filed for bankruptcy. See: 11 U.S.C. § 922(a)(1). The district court therefore placed De Tie's lawsuit on its inactive docket due to the county's bankruptcy proceeding.

Over a year later De Tie served the county with his complaint. The district court dismissed the suit without prejudice under FRCP 4(m), holding De Tie had not served the county with his complaint within the 120 days allowed by the FRCP. The court of appeals reversed and remanded.

The appeals court held that on the ...

District Court Can't Dismiss Appeal for Failure to Pay Filing Fee

The court of appeals for the Seventh circuit held that district courts lack the statutory authority to dismiss appeals due to a party's failure to pay the filing fee. Earl Sperow, an Illinois state prisoner, filed a lawsuit which was dismissed for failure to state a claim. Sperow filed a notice of appeal and sought leave to proceed on appeal with In Forma Pauperis (IFP) status. The district court granted Sperow IFP status and assessed an initial partial filing fee of $2.22. Sperow did not pay the $2.22 within the 45 days ordered. The district court then. entered an order denying IFP status on appeal.

The court of appeals vacated the order. The court held that under 28 U.S.C. § 1915, IFP status can be denied only if: the prisoner has not established indigence, the appeal is in bad faith or the prisoner has had three or more lawsuits dismissed as frivolous.

The court held that § 1915 does not allow district courts to dismiss appeals. If a party refuses to pay the filing fee the appeals court can dismiss the case for want of prosecution. The court reinstated Sperow's appeal and IFP status. Because Sperow ...

 

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Disciplinary Self-Help Litigation Manual