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Prisoner Education Guide

Prison Legal News: June, 1999

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Volume 10, Number 6

In this issue:

  1. Federal Judge Rules Texas Prisons Still Unconstitutional, PLRA Unconstitutional (p 1)
  2. Washington Parole Officer Blown Up (p 3)
  3. Prison Madness, by Terry Kupers, MD (Book Review) (p 4)
  4. From the Editor (p 4)
  5. Indictment: The News Media and the Criminal Justice System (Book Review) (p 5)
  6. Notes from the Unrepenitentiary (p 6)
  7. Private Prison Escape Explained (p 6)
  8. Corcoran Prisoner Left Hanging (p 7)
  9. Pro Se Tips and Tactics (Discovery) (p 8)
  10. Washington Prisoners Damage Colorado Private Prison (p 10)
  11. Washington Prisoners Brutalized in Colorado Private Prison (p 10)
  12. CCA - Prison Realty Merger Approved (p 11)
  13. They Killed a Man, Not a Number (p 12)
  14. Violence Takes a Toll at New Mexico Wackenhut Prison (p 12)
  15. CMS Settles Wrongful Death Suit for $75,000 (p 13)
  16. Court Screening Applies to Paid Suits Too (p 13)
  17. Failing to Provide Disabled Prisoner Showers for Two Months Cruel and Unusual (p 13)
  18. Judge Throws Out Corcoran Sanctions (p 14)
  19. Juveniles Held Hostage for Profit by CSC in Florida (p 15)
  20. Florida Porn Ban Challenged (p 15)
  21. Mitigation Instruction and Excluding Indemnification Evidence Reversible Error (p 16)
  22. Parole Officials Liable for False Information in Parole Violation Arrest Warrant (p 17)
  23. Pardon Satisfies Heck (p 17)
  24. Federal Prisoners Must Exhaust Administrative Remedies Before Suing (p 18)
  25. Fifth Circuit Upholds PLRA Exhaustion Requirement (p 18)
  26. Imminent Danger Overrides Three Strikes (p 18)
  27. Exhaustion Not Required for Bivens Claim (p 19)
  28. Pennsylvania Brutality Suit Settled for $5,000 (p 19)
  29. The Lucasville Trials (p 20)
  30. Warden's Smoking Ban Violates BOP Rules (p 22)
  31. Weapon Possession in Federal Prison Always Considered a "Violent Offense" (p 23)
  32. Interstate Compact Violations Not Cognizable Under § 1983 (p 23)
  33. News in Brief (p 24)
  34. Felon Possession of Firearm Nonviolent Offense (p 26)
  35. Prisoner May Not File Unsigned Complaint for Another Prisoner (p 26)
  36. Error to Dismiss Rule 41(C) Motion Without Allowing Conversion to Bivens Action (p 26)

Federal Judge Rules Texas Prisons Still Unconstitutional, PLRA Unconstitutional

By Matthew T. Clarke

Following a nineteen-day hearing in the class-action Ruiz lawsuit on prison conditions in the Texas Department of Criminal Justice Institutional Division (TDCJ-ID), which has been pending in his court since 1972, William Wayne Justice, a Texas federal district judge, issued an 167-page opinion and orders detailing why, despite decades of judicial oversight, Texas prisons are still unconstitutional. Justice found that "Texas inmates continue to live in fear a fear that is incomprehensible to most of the state's free-world citizens," with many vulnerable prisoners being "raped, beaten, owned and sold by more powerful ones." Prisoners retain a constitutional right to protection from known sources of physical harm " [i] instead they pay for protection, in money, services, or sex. Such practices and conditions cannot stand in our society, under our Constitution."

The hearing encompassed 95 hours of testimony from 65 witnesses, including many prisoners who detailed their torture at the hands of prisoners and guards. One witness, Allen Breed, a former director of the National Institute of Corrections who has been called as an expert in prison conditions lawsuits in 15 different states, said that Texas has a greater degree of excessive force than any other state ...

Washington Parole Officer Blown Up

On January 26, 1999, Tom Perrine, a Community Corrections Officer (AKA parole officer), for the Washington Department of Corrections, was blown up by a trip wire bomb planted in the carport of his Montesano home. Perrine was leaving for work when he saw a bag on the floor of his carport. When he picked the bag up, it exploded.

Perrine was seriously injured by the blast and shrapnel. He was hospitalized for three weeks as doctors removed shrapnel, repaired his shattered right leg and rebuilt a damaged tear duct in his right eye. Perrine lost part of his right forefinger and may have suffered permanent vision loss.

Police have arrested three suspects in connection with the bombing. According to prosecutors, an unidentified man in police custody admitted supplying the bomb materials to Gary Davis, who built the bomb and planted it in Perrine's carport the night before the explosion. Davis was allegedly driven to Perrine's home to plant the bomb by his girlfriend, Sharon Davidson. Davis and Davidson were arrested on February 4, 1999, and charged with arson and attempted first degree murder.

The unidentified man, who is cooperating with police, was on parole and under Perrine's ...

Prison Madness, by Terry Kupers, MD (Book Review)

Jossey-Bass, 1999

Reviewed by Dan Pens

Ted Kaczynski is clearly mentally ill. So said six psychiatrists who told the court that the infamous Unabomber is an acutely psychotic paranoid schizophrenic.

In addition to being quite mad, Kaczynski possesses a brilliant intellect; he was a professor of mathematics at UCal Berkeley before withdrawing from society, at age 27, to a 10' x 12' wooden shack in Montana where he constructed elaborate handcrafted bombs.

He was convinced the nightmarish storms raging through his brain were brought about by forces outside of himself. He blamed technology for his mental turmoil. And in desperation he bombed technologists.

But in the United States, in the 1990s, Ted Kaczynski is above all a "criminal".

The publicity surrounding his arrest was intense. However, when it became clear to the press that Ted was mentally ill (rather than diabolically evil), the media circus packed up its tent and left town. Little attention was given to the court proceedings where Kaczynski was duly convicted and sentenced for his "criminal" behavior.

Kaczynski now lives a solitary existence in a 10' x 12' concrete box in the bowels of the federal maximum security prison in Florence, Colorado a.k.a. "The ...

From the Editor

Since the November, 1996, issue of PLN we have had a Prison Litigation Reform Act News section. Starting with next month's issue we will no longer run a separate PLRA News section in PLN .

When the PLRA was enacted in April, 1996, it was clear it would have an immediate and dramatic impact on prison litigation. By the late summer and early fall of 1996 the first PLRA cases were being decided by the courts. We decided to start a PLRA News section in order to bring readers news of PLRA developments as quickly as possible.

To date, the biggest changes made by the PLRA, the consent decree termination provisions and the filing fee requirements for indigent prisoners, have been upheld by the circuit courts. As the PLRA gradually becomes settled law we are no longer seeing that many court rulings that deal solely with PLRA issues. Instead, court opinions may touch on procedural issues, PLRA topics as well as the merits of the case. Just like most court rulings do. From now on PLRA cases will be spread throughout each issue of PLN along with the other news and law articles.

PLN 's long suffering office slave, Fred ...

Indictment: The News Media and the Criminal Justice System (Book Review)

Reviewed by Alex Friedmann

Indictment, a report by the Freedom Forum First Amendment Center at Vanderbilt University, presents a hard look at the shortcomings of crime coverage by the press. The authors, two experienced journalists, condemn simplistic reporting of complex criminal justice issues that all too often is a mile wide and a millimeter in depth.

The growing trend among the news media is excessive, sensationalistic crime coverage that sidesteps discussion of effective solutions to crime and alternative approaches to punishment. Newspapers and T.V. news frequently are deluged with stories of murder and mayhem despite recent declines in crime. For example, while the national homicide rate has fallen by 20% since 1990 the number of murder reports on network newscasts has soared by almost 60% over the same time period.

Indictment notes that lopsided coverage of crime is at least partly attributable to the fact that the news media is a business, the public is a consumer, and crime reporting is profitable because it generates higher ratings. Crime sells and the press panders to people's apparent desire for "if it bleeds it leads"-style news coverage.

Using examples from today's headlines, Indictment presents compelling evidence that, to ...

Notes from the Unrepenitentiary

By Laura Whitehorn

I had thought I'd be gone to a halfway house by now, since I'm only five months from my mandatory release date. But it seems the decision on releasing me has been relegated to "a higher authority." This reminds us, once again, that the u.s. "doesn't have any political prisoners" until it comes time to release one of us, or sentence us, or make any other decision regarding us.

When I finally walk out of prison, I will leave behind six other women political prisoners here at FCI Dublin: Puerto Rican independentistas Dylicia Pagan, Lucy and Alicia Rodriguez and Carmen Valentin, and Northamerican anti imperialists Marilyn Buck and Linda Evans. Each of us has years of stories of the particularized treatment political prisoners receive.

One example of such treatment has become generalized to all prisoners in the years since our arrests in 1980 and 1985. When we were sentenced, we were all given extraordinarily long terms, especially for first time defendants. Now, of course, long sentences for first offenders are the rule rather than the exception.

Women prisoners in the federal system are a group especially hard hit by this aspect of the ...

Private Prison Escape Explained

On October 12, 1998, four prisoners escaped from the Corrections Corporation of America (CCA) South Central Correctional Center in Wayne County, Tennessee [See: News In Brief, Feb. '99 PLN ]All of the escapees were eventually captured.

On January 15, 1992, CCA warden Kevin Myers appeared before the Tennessee state legislative Select Oversight Committee on Corrections to explain the escape. The committee was told the breakout resulted from a failure by South Central guards to follow proper procedures, and that a supervisor had been fired and two other employees suspended as a result of an investigation.

Myers cited two major procedural shortfalls. First, a supervisor delivered a mailed package (which contained bolt cutters) to a prisoner. The bolt cutters were later used by the escapees to cut through perimeter fences.

The second procedural failure occurred when a guard in the prison's control room shut off an alarm without checking to see what had caused it. The escape occurred during shift change. Myers blamed complacency and lack of attention to detail as a contributing factor to the escape. He also confirmed reports that CCA guards did not learn of the mid-afternoon breakout until they were later informed by a prisoner.

"Had ...

Corcoran Prisoner Left Hanging

During a 3 a.m. bed check, a Corcoran (Calif.) State Prison guard spotted a prisoner dangling from a noose in a darkened corner of his ad-seg cell. But rather than pop open the cell door and determine whether he was dead or alive, prison guards remained outside for 18 minutes while his body dangled, according to a confidential prison report obtained and reported by the L.A. Times .

Michael Van Straaten, a 32-year-old Canadian citizen serving a life sentence for kidnapping and assault with a deadly weapon, had a long history of mental and physical problems, including epileptic seizures that would occasionally cause him to lose consciousness and injure himself. He also had HIV and hepatitis C, both from prison tattoo needles prison sources told The Times .

For years he wrote letters to family members and prison rights activists complaining that Corcoran officials ignored his serious medical needs. Often, he wrote, medication to control his seizures and HIV were delayed and sometimes denied.

Prisoner rights and AIDS advocate Judy Greenspan waged a two-year campaign to have Van Straaten and other HIV+ prisoners transferred to the California Medical Facility at Vacaville where HIV+ prisoners would be more likely to receive ...

Pro Se Tips and Tactics (Discovery)

In this column, I will talk about the importance of doing discovery in any civil case in which you are involved. I will first describe what discovery is and what it is for, then explain why it is so important for you to use discovery tools in your lawsuit, and finally provide some information on how to do discovery. As always, I will discuss these topics from the point of view of a prisoner representing him- or herself in a §1983 case in federal court.

1. What is discovery?

Discovery is a process of finding out information about your case after you file, either from the defendant or from others who might have important information. Obviously, you must know a fair amount about what happened before you file, but you can find out more especially more about what the defendants have done or are doing through discovery.

The basic tools of discovery (although not the only ones) are interrogatories, admissions, depositions, and requests for production of documents. Interrogatories are a series of written questions to a party (you would ask them of a defendant), which are to be answered and sworn to under oath. A deposition is a recorded interview ...

Washington Prisoners Damage Colorado Private Prison

Amajor prisoner uprising rolled through a for-profit prison at Olney Springs, Colorado, for six hours, causing extensive damage. State prison SWAT teams were called in from as far as 200 miles away to regain control of the prison.

The incident took place Friday, March 5, 1999, and was the second serious disturbance to occur at the prison, known as the Crowley County Correctional Facility, since it opened in October, 1998. The prison is operated by Correctional Services Corporation (CSC), based in Sarassota, Florida, which has contracts to operate 36 other local, state and federal lock-ups holding 9,910 prisoners in the U.S. and Puerto Rico.

Two days earlier, about 250 Washington state prisoners were shackled and hauled by bus and plane to the Crowley County prison, about 35 miles east of Pueblo, Colorado. Washington Governor Gary Locke approved the out-of-state rent-a-cell plan, calling it an appropriate emergency solution to Washington's overcrowding problem.

The disturbance was sparked at about 1 p.m. in the dining hall, said Richard Marr, deputy warden of the 1,200-bed prison. Marr claimed a Washington prisoner argued with food service staff because he wasn't served a non-meat religious diet. Marr told media the ...

Washington Prisoners Brutalized in Colorado Private Prison

[Editor's Note: The corporate media in Colorado and Washington alike reported on the uprising by Washington prisoners at the Olney Springs prison. They uniformly parroted the line by prison officials that the prisoners had revolted because they were unhappy at being unable to smoke. As usual, prisoners' grievances are trivialized. To PLN 's knowledge, no reporter attempted to contact any prisoners at the facility to confirm the claims made by prison officials. Also not commented upon by the corporate media is that Correctional Services Corporation used to be known as Esmor Corrections and was based in New Jersey. The company changed its name and moved to Florida after a riot at an INS detention facility it ran in Elizabeth, New Jersey, exposed chronic brutality, corruption and mismanagement by the company. This was reported in the November and August, 1994, issues of PLN and February, September, 1995 issues. See page 15 of this issue for more CSC news. As noted below, CSC seems to have changed its name but not its method of operation. Waldo Waldron Ramsey is a long time PLN subscriber and supporter.

He was among the Washington prisoners sent to the CSC prison in Colorado. CSC officials ...

CCA - Prison Realty Merger Approved

A merger between Corrections Corp. of America (CCA) and Prison Realty Trust was approved by shareholders of both companies on Dec. 1, and Dec. 3, 1998, respectively. CCA had spun-off Prison Realty Trust in July 1997, then announced merger plans last April [See: CCA Sells Self; Wackenhut Creates REIT," PLN , Vol. 9 No. 8].

The CCA-Prison Realty merger was opposed by an organized labor group that safeguards pension funds of member unions. The AFL-CIO's Office of Investment sent seven-page mailings to CCA shareholders urging them to vote against the proposed merger because it unfairly favored CCA management and two major institutional investors, and transfered some of CCA's most valuable assets to companies that would not benefit shareholders.

"We are reaching out to CCA's shareholders to put forth our critique of the deal and get some dialogue going," said AFL-CIO representative Beth Young.

CCA spokesperson Peggy Lawrence said the union's complaints were out of context and outdated. The AFL-CIO and affiliated labor unions held an estimated .5% of CCA's stock prior to the merger.

Three of the nation's largest pension funds also opposed the merger. The California Public Employees' Retirement System, the New York City ...

They Killed a Man, Not a Number

[Editor's Note: South Carolina killed Andy Smith on December 18, 1998. He was the 500th person executed in the U.S. since the death penalty was reinstated in 1976. Like a thousand other editors, I wanted to cover it. I asked South Carolina death row prisoner David Hill, who knew Andy personally, to write the article. This is how David replied . ]

Yes, I did know Andy Smith. But I'm sorry, I will not be able to write an article about him. For several reasons. First of all, I didn't know him that well, and knew absolutely nothing about his case or the crime for which he was accused. Nor do I know anything about his family or background. I will, however, say this about Andy: He was one of the nicest guys I've ever met.

But the main reason I won't write a story about Andy is because I'm pretty sure he wouldn't have wanted me to. I spoke to the attorneys who were trying to save his life and asked them about the protest and such. They told me that Andy was aware that he was going to be the 500th execution ...

Violence Takes a Toll at New Mexico Wackenhut Prison

The 1200-bed Lea County Correctional Facility (LCCF), a New Mexico state prison operated by Florida-based Wackenhut Corrections Corp., has been plagued by nine prisoner stabbings during its first six months of operation, including two that resulted in the deaths of two prisoners.

Jose Montoya, a 44-year-old LCCF prisoner, died December 10, 1998 after being stabbed repeatedly in the abdomen with a homemade shank. Montoya had been waiting in the prison barber shop for a haircut when the stabbing occurred. He died later at Columbia Lea Medical Center in Hobbs. No motive was given for the stabbing. However, one prisoner has been charged with capital murder with special circumstances, and a second one has been charged with tampering with evidence for allegedly throwing a shank in the trash to hide it from authorities.

Another LCCF prisoner, 30-year-old Steven Edwards, was stabbed at least 92 times on Christmas Day December 25, 1998 with a shank made from a piece of chain link fence, officials said. Despite the numerous wounds, police said, Edwards was up and walking around several days later.

Robert Ortega, a 38-year-old LCCF prisoner, was found by a passing prison guard lying dead in his cell on January 13, 1999 ...

CMS Settles Wrongful Death Suit for $75,000

In 1998 Correctional Medical services (CMS) and the estate of Mark Murphy settled a wrongful death suit for $75,000. CMS is the largest provider of privatized medical care to prisoners and jail detainees.

Mark Murphy was imprisoned at the Delaware Correctional Center (DCC) in Smyrna, Delaware. In June, 1992 ...

Court Screening Applies to Paid Suits Too

The court of appeals for the Fifth circuit held that 28 U.S.C. § 1915A allows district courts to dismiss as frivolous even lawsuits where the filing fee has been prepaid in full. The court also held that challenges to conditions of confinement in a Texas Administrative Segregation (ad seg) unit were frivolous.

28 U.S.C. § 1915A was enacted as part of the Prison Litigation Reform Act (PLRA). It requires district courts to review prisoner suits as soon as possible and to dismiss lawsuits that are frivolous, malicious or which fail to state a claim upon which relief may be granted or that seek damages from defendants immune from such relief. This occurs before the suit is served on the defendants and before any reply is filed.

Timothy Martin, a Texas state prisoner, filed a lawsuit claiming his ad seg placement violated his right to due process, equal protection and constituted cruel and unusual punishment. Martin prepaid the filing fee in full when he filed suit. The district court dismissed the suit as frivolous. The court of appeals affirmed.

The appeals court joined the Sixth and Tenth circuits in holding that § 1915A "applies even when a prisoner has paid ...

Failing to Provide Disabled Prisoner Showers for Two Months Cruel and Unusual

The Fifth Circuit court of appeals has held that failing to accommodate a disabled prisoner whose disability and close confinement accommodations prevented him from showering states a claim under the Cruel and Unusual Punishments Clause of the Eighth Amendment.

Mondric Bradley, a Mississippi state prisoner with a disabled leg, filed suit under 42 U.S.C. § 1983, alleging that, when he was placed in close confinement following a disciplinary action, prison officials failed to provide him with a shower chair without which he could not shower. Bradley contended that prison officials knowingly withheld the essentials necessary to sanitize himself for over two months. Forced to use his toilet to clean himself, Bradley developed a fungal infection., Following an evidentiary hearing, the district court dismissed the suit, finding that prison officials took immediate steps to correct the situation and treat Bradley as soon as they were appraised of it; thus Bradley's discomfort was brief.

The Fifth Circuit held that Bradley's allegations that prison officials were aware of his special needs, but ignored them, forcing him to clean himself with toilet water and resulting in a painful rash, stated a claim of cruel and unusual punishment. "Bradley's claim must ...

Judge Throws Out Corcoran Sanctions

by W. Wisely

As state and federal investigations into brutality, corruption, and cover-ups at California's Corcoran prison expand, as the ink on multi-million dollar settlement checks is barely dried, and as the grass grown over the bodies of young men gunned down by guards for entertainment thickens on the tears of their grieving families, a judge overturned disciplinary sanctions against six high-ranking staff charged with orchestrating an attack on a busload of unsuspecting prisoners.

On September 18, 1998, in Sacramento Superior Court, Judge Cecily Bond held the State Personnel Board violated due process by adding charges in the course of its administrative action against an associate warden, two lieutenants, and three sergeants, and ordered charges dropped in four cases, sending the remaining two back to the Board for reconsideration.

On June 21, 1995, 36 black prisoners were transferred from Calipatria prison's general population to the now infamous Corcoran security housing unit. As reported by PLN, the transfers followed violent uprisings by Calipatria prisoners in which guards were injured. The bus was met by an organized clique of guards outfitted in riot gear, steel-toed boots, helmets, face plates, bulletproof vests, black leather gloves, wielding metal batons with their name ...

Juveniles Held Hostage for Profit by CSC in Florida

According to a consultant hired by the Florida Department of Juvenile Justice, the Pahokee Youth Development Center (Juvenile prison) operated by the Correctional Services Corporation (CSC) kept ten juvenile detainees beyond their release dates for no other reason than to beef up corporate profits.

Consultant David Bachman wrote in a November 1998 report to the state that the youths were detained beyond their release dates so they would be included in a quarterly head count used to determine the amount of funding that CSC receives. Bachman said he found a memo indicating the juveniles were to be held longer than necessary.

The Sarasota, Florida-based CSC has a three-year, $30 million contract to manage juvenile detention centers in Pahokee and Polk County. The company operates 15 other juvenile facilities nationwide and in Puerto Rico.

The state of Florida pays CSC an average of $68.40 per detainee/day at the 350 bed Pahokee lockup; the local school district pays the company an additional $2.5 million annually to provide educational services there.

The juveniles who were kept beyond their release dates were scheduled to go home a week before the quarterly school board head count. Delaying the release of the ten ...

Florida Porn Ban Challenged

On December 31, 1998, an amended complaint was filed in the US district court for the Southern District of Florida in Miami challenging the Florida Department of Corrections' ban on sexually explicit material. In 1998 the Florida DOC changed Florida Administrative Code (FAC) 33-3.012 to mandate the censorship of publications that depict sexual conduct, including nudity and "actual contact with a person's clothed or unclothed genitals, pubic area, buttocks, or if such person is a female, breast."

The plaintiffs are PLN advertiser Komar Company (AKA Paper Wings), which sells and distributes sexually explicit materials to prisoners, and Florida prisoners Richard Davidson Jr., Thomas Chick, Louis Gaskins and Ted Herring. The plaintiffs maintain that the Florida DOC's ban on sexually oriented materials violates their First amendment right to free speech. The plaintiffs are seeking declaratory and injunctive relief and attorney fees.

Readers should note that in censorship cases with non prisoner plaintiffs, the Prison Litigation Reform Act limits on attorney fees does not apply.

PLN will report the outcome of the case. See: Komar Company v. Singletary, USDC SDFL, Case No. 98-14294- CIV-Davis.

Mitigation Instruction and Excluding Indemnification Evidence Reversible Error

The court of appeals for the Seventh circuit held that a district court erred when it did not allow a jail detainee plaintiff to introduce evidence of a state indemnification statute after the defendants told a jury that a damages verdict would adversely affect them personally. The court also held ...

Parole Officials Liable for False Information in Parole Violation Arrest Warrant

A federal district court in New Jersey has held that parole officials are liable for causing the arrest of a parolee based upon false information.

Robert Friedland, a New Jersey state prisoner, was paroled in August, 1995. Subsequently he was the subject of two revocation actions.

The first revocation action was initiated in February 1995 by Friedland's parole officer for moving without permission. After seventeen days in jail, Friedland was reinstated, but upgraded to intensive supervision parole. Friedland claims that he did not move and the revocation was based solely on his landlord's assertion that Friedland "was thrown out" the previous week.

In March 1995, Friedland submitted a request to move. His parole officer denied the request. Another parole officer gave him permission to use the proposed new residence as an office and told Friedland he could move there after he completed intensive parole.

In April, 1996, Friedland was arrested and charged with moving without permission and failing to pay restitution. Friedland alleged that he had not moved but had purchased the previously proposed new residence and was using it as a business and that he had been given permission to defer payment of restitution while he received ...

Pardon Satisfies Heck

The court of appeals for the Eighth circuit held that a governor's pardon invalidates a criminal conviction in order to permit a 42 U.S.C. 1983 claim for damages to proceed. Johnny Wilson, a mentally retarded Missourian, pleaded guilty to a murder he did not commit in order to avoid the death penalty. After nine years in prison he received a gubernatorial pardon based on his innocence.

Wilson sued various police officials under § 1983 claiming they conducted a biased investigation, intimidated witnesses and provided false information in order to secure his conviction. The district court dismissed the suit, holding that under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994), the § 1983 claims could not proceed because it would cast doubt on the validity of Wilson's criminal conviction if he prevailed.

The court of appeals reversed and remanded. The court held that for purposes of Heck , a gubernatorial pardon will invalidate and expunge a criminal conviction, thus allowing a § 1983 claim for money damages to proceed. See: Wilson v. Lawrence County, Missouri, 154 F.3d 757 (8th Cir.).

Federal Prisoners Must Exhaust Administrative Remedies Before Suing

The court of appeals for the Eleventh Circuit has held that federal prisoners must exhaust administrative remedies before filing a Bivens suit against prison officials.

Michael Alexander, a federal prisoner, filed a Bivens suit challenging the constitutionality of prison regulations prohibiting prisoners from receiving certain sexually explicit materials, 28 C.F.R. §§ 540.70-540.71, resulting from the passage of the Ensign Amendment. Pub.L.No. 104-208 § 614, 110 Stat. 3009 (9-30-96), prohibiting the Federal Bureau of Prisons BOP "from using any funds 'to distribute or make available . . . to a prisoner' any commercially published information that 'is sexually explicit or features nudity."'

On November 5, 1996, BOP officials notified prisoners that the new regulations would become effective on December 1, 1996. On November 15, 1996, Alexander filed his suit in federal court seeking an injunction, declaratory relief, and monetary damages. On November 20, 1996, the district court dismissed the suit for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a). Alexander appealed.

The Eleventh Circuit held that exhaustion for failure to exhaust administrative is mandatory under § 1997e(a) as amended by the Prison Litigation Reform Act (PLRA). The court held that the PLRA applies to ...

Fifth Circuit Upholds PLRA Exhaustion Requirement

The court of appeals for the Fifth circuit affirmed a lower court's dismissal of a prisoner's 42 U.S.C.A. § 1983 claims for failure to exhaust administrative remedies prior to filing suit as required by 42 U.S.C. § 1997e. However, the claims were dismissed without prejudice and the prisoner was able to refile his claims after showing he had met the exhaustion requirements.

Texas state prisoner, Chandler Wendell, Jr., proceeding pro se and in forma pauperis, filed a 42 U.S.C. § 1983 civil rights complaint alleging Eighth Amendment claims for use of excessive force by a prison guard, and due process violations arising from a related disciplinary hearing. Wendell asked for both monetary and injunctive relief.

Wendell's complaint was filed on July 28, 1997, but his administrative remedies for the use of excessive force claim were not exhausted until two days later on July 30, 1997. Wendell filed objections to the U.S. Magistrate Judge's finding that Wendell had not alleged exhaustion of administrative remedies when he filed his complaint. The district court conducted a de novo review and then dismissed for failure to exhaust administrative remedies prior to filing suit. Wendell appealed ...

Imminent Danger Overrides Three Strikes

The court of appeals for the Third Circuit held that conditions allegedly resulting from a vent emitting particles of dust and lint into a cell constitute a serious physical injury for purposes of circumventing the "three strikes" provision of the Prison Litigation Reform Act (PLRA).

In August 1996, a Pennsylvania state prisoner filed a civil rights complaint against a prison maintenance supervisor because the prisoner was confined to a cell with a vent that continuously emitted "dust, lint and shower odor." This condition caused the prisoner to suffer "severe headaches, change in voice, mucus that is full of dust and lint, and watery eyes."

The prisoner sought leave to proceed in forma pauperis, but the trial court determined that he had previously filed at least three civil actions that had been dismissed as frivolous. Pursuant to the "three strikes" provision of the PLRA, codified as 28 U.S.C. § 1915(g), the court dismissed the complaint without prejudice to refile upon payment of the required filing fee.

The "three strikes" provision prohibits courts from according in forma pauperis status to prisoners who have "on 3 or more prior occasions ... brought an action ... that was dismissed on the grounds that it ...

Exhaustion Not Required for Bivens Claim

Exhaustion Not Required for Bivens Claims

The court of appeals for the Fifth Circuit held that federal prisoners pressing Bivens claims against federal officials for only monetary relief need not exhaust meaningless administrative remedies. The court further held that a party is entitled to narrow its pleading to eliminate non-monetary claims at any time before the complaint is answered.

In May 1997, a federal prisoner in Texas sued the Federal Bureau of Prisons (BOP) and three prison officials for monetary damages and injunctive relief. He alleged a denial of medical care, racial and locality discrimination, an unwarranted security level change, and retaliation for filing grievances.

A magistrate judge recommended that the prisoner's claims be dismissed for failure to exhaust administrative remedies, but in his objections to the report and recommendation, the prisoner sought to amend his complaint to eliminate all but his monetary claims. He also argued that exhaustion of monetary claims should not be required. The district judge, however, rejected this reasoning, and dismissed the medical care and discrimination claims without prejudice to exhaust. All other claims were dismissed as being frivolous.

As a threshold matter, the appeals court noted that a plaintiff is entitled to amend his ...

Pennsylvania Brutality Suit Settled for $5,000

In June, 1998, the Lancaster County prison in Lancaster, Pennsylvania, settled a brutality suit with former prisoner Ruben DeJesus by paying him $5,000 in damages and waiving 4,180 in prison rent and $1,128.23 in medical costs.

DeJesus filed suit after being beaten by prison guard Craig ...

The Lucasville Trials

[Editors' note: The identity of persons who provided information to the author confidentially has been withheld. ]

On April 21, 1993, 407 prisoners who for eleven days had occupied the L cell block at the Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio, surrendered to authorities. Nine prisoners and one guard had been killed.

The 21-point surrender agreement included the following:

"(2) Administrative discipline and criminal proceedings will be fairly and impartially administered without bias against individuals or groups.

(14) There will be no retaliating actions taken toward any inmate or groups of inmates or their property."

The authorities brought 50 inmates to trial. They obtained 47 guilty findings or guilty pleas. Five men were sentenced to death. The authorities achieved these results by systematic and intentional violation of the surrender agreement.

1. Disparity of Resources

The American Bar Association guidelines for the appointment and performance of counsel in death penalty cases state that attorneys in capital cases should receive a "reasonable rate of hourly compensation which . . . reflects the extraordinary responsibilities inherent in death penalty litigation." Counsel should also be provided with the time and funding necessary for proper investigations, expert witnesses, and other support services, according to the ABA.

Ohio ...

Warden's Smoking Ban Violates BOP Rules

The court of appeals for the Ninth circuit held that a warden's ban on smoking in a prison camp violated federal Bureau of Prison (BOP) rules requiring that warden's designate outdoor smoking areas.

The warden of the BOP camp in Sheridan, Oregon banned smoking in the camp even though smoking is allowed in the neighboring prison.]Four prisoners filed suit claiming the ban was unconstitutional. The district court dismissed the suit. The court of appeals affirmed in part, reversed in part and remanded.

The court of appeals noted that prisoners have no constitutional right to smoke and a ban on smoking furthers legitimate governmental interests of protecting the health and safety of prisoners and staff.

However, 28 C.F.R. § 551.163(a) requires that BOP wardens designate outdoor smoking areas in all BOP facilities. The court held that this is a mandatory duty. The warden's creation of a smoking ban therefore violated § 551.163. "Pursuant to 28 C.F.R. § 551.163(a), the warden must identify outdoor smoking areas to accommodate the prisoners housed at the prison camp." The brief ruling contains a useful discussion on the mandatory language of BOP rules. After the ruling ...

Weapon Possession in Federal Prison Always Considered a "Violent Offense"

The court of appeals for the Seventh circuit held that possession of any weapons in prison constitute a "violent offense" for federal sentencing guidelines purposes. Grant Vahovick, a federal prisoner, stabbed prisoner Jeremy Darin in the head and neck with five sharpened pencils bound together with tape. Vahovick was indicted on one count of possessing a prohibited object in violation of 18 U.S.C. § 1791. He was not charged with the assault itself.

Vahovick pleaded guilty to the charge and at sentencing the district court found the charge to be a "violent offense" which led to Vahovick being characterized as a career criminal under the federal sentencing guidelines. The district court refused to consider a downward departure under USSG §5 K2.10 based on the victim's conduct. Vahovick claimed Darin and his friends had been pressuring him to perform oral sex on them, which is why he stabbed Darin. The court of appeals vacated and remanded the case for resentencing.

The circuit courts have generally ruled that weapons possession, by itself, outside of prison, is not a "crime of violence." In this case, the appeals court agreed with U.S. v. Young, 990 F.2d 469 (9th Cir ...

Interstate Compact Violations Not Cognizable Under § 1983

Interstate Compact Violations Not Cognizable Under § 1983

The court of appeals for the Ninth circuit held that violations of the Interstate Corrections Compact (ICC) cannot be challenged via 42 U.S.C. § 1983 in federal court. Emory Ghana, a New Jersey state prisoner, was transferred to the Oregon prison system under the ICC. The ICC allows states to exchange prisoners among prison systems. Typically the prisoners subject to ICC transfers are those considered "troublemakers" or who require long term protective custody. The ICC provides that any hearings in the receiving state should be conducted in accordance with the rules of the sending state.

Ghana received several disciplinary infractions in Oregon. he filed suit in federal court under § 1983 claiming the hearings were not conducted in accordance with New Jersey rules, as required by the ICC. The district court dismissed the suit and the court of appeals affirmed.

Section 1983 can be used to challenge the violation of federal statutory and constitutional law. The appeals court held that the ICC cannot be enforced via § 1983 because it does not fall within the compact clause of the constitution; it has not received congressional consent and its subject matter is not appropriate for ...

News in Brief

News In Brief

Antigua: A fire started by prisoners at the centuries-old Her Majesty's Prison in St. John, capital of the former British colony, sent 17 people to a hospital with minor injuries on Jan. 28, 1999.

AZ : On Feb. 18, 1999 charges against three former prisoners accused of plotting to kill Arizona prison director Terry Stewart were dismissed after the state's main witness, Carlos Velez, refused to cooperate. Velez had previously claimed that John Alday, Michael Garcia and Raymond Llamas planned to murder Stewart in retaliation for a crackdown on prison gangs. The story made national headlines in Dec. 1998.

Brazil: More than 100 prisoners escaped in two jailbreaks during New Year's Eve celebrations. Sixty-three prisoners broke out of a Sao Paulo prison after armed men surprised police guarding the facility, and 43 escaped from a prison in Rio de Janeiro amid the neighborhood's New Year's party.

Brazil: Six prisoners at a maximum-security facility in southern Brazil were killed in a shootout during a riot and failed escape attempt in Feb. 1999. The early-morning revolt began when armed prisoners took control of exits at the prison.

CA : Ironwood State Prison guard Richard Melendez, 28 ...

Felon Possession of Firearm Nonviolent Offense

The court of appeals for the Sixth Circuit held that possesion of a firearm by a previously convicted felon is a "nonviolent offense," and federal prisoners who are otherwise eligible for one-year sentence reductions under the "Comprehensive Drug Abuse Treatment Program" (Program) are entitled to the program's benefits.

This issue has been resolved in several other circuits, and extensively reported in previous issues of PLN . Essentially, the Federal Bureau of Prisons (BOP) offers a one-year sentence reduction to federal prisoners who successfully complete the Program. However, pursuant to 18 U.S.C. § 3621(e)(2)(B), the sentence reduction provision is limited to prisoners who have been convicted of a "nonviolent offense."

The problem arises because the BOP, in Program Statement No. 5162.02, defines crimes of violence to include 18 U.S.C. § 922(g), the -federal felon-in-possession statute. As a result, the prisoner in this case was denied a sentence reduction after successfully completing the Program, solely because of his conviction under § 922(g).

When the prisoner petitioned for a writ of habeas corpus under 28 U.S.C. § 2241, the district court dismissed the petition on the theory that: (1) the prisoner had no liberty interest ...

Prisoner May Not File Unsigned Complaint for Another Prisoner

The Fifth Circuit court of appeals has held that the a pro se prisoner's civil rights complaint was time barred even though a prisoner assisting the pro se prisoner filed a timely unsigned complaint.

Raul Gonzales, a Texas state prisoner, wanted to file a federal civil rights suit under 42 U.S.C. § 1983 alleging a guard used excessive force against him. Before Gonzales was transferred to another prison, he asked Willie Milton, another prisoner, to help. Milton sent the court a typed, unsigned copy of the complaint, with no filing fee or motion to proceed in forma pauperis (IFP), five days before the statute of limitations ran out. The court ordered Gonzales to file a signed complaint and IFP motion and Gonzales did. Defendants moved for summary judgment based on limitations. The district court dismissed the complaint as time-barred.

The Fifth Circuit held that one prisoner cannot file an unsigned complaint for another prisoner. The situation would have been different had Gonzales filed his own complaint and just forgotten to sign it. However, Gonzales had not even seen the complaint prior to filing. Thus, a later-filed, signed complaint did not relate back to the unsigned complaint and could ...

Error to Dismiss Rule 41(C) Motion Without Allowing Conversion to Bivens Action

Error to Dismiss Rule 41(c) Motion Without Allowing Conversion to Bivens Action

The Fifth Circuit court of appeals has held that a district court erred when it dismissed a prisoner's motion under Rule 41(c), Federal Rules of Criminal Procedure, without first giving him an opportunity to amend the motion and convert it into a Bivens action.

Samuel Peña, a federal prisoner incarcerated in Texas, filed a pro se motion under Rule 41(e) for return of property unlawfully seized during a search of his home. The government replied that the property had been destroyed. The district court dismissed the motion as moot without giving Peña an opportunity to amend the motion. Peña appealed.

The Fifth Circuit held that by destroying the property the government did not extinguish its liability under Rule 41(e). However, despite opposite holdings in the Second, Fourth, Seventh, and Ninth Circuits, a Rule 41(e) motion is not the proper pleading for recovery of damages. The proper pleading is an action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Peña should have been afforded an opportunity to amend his motion to convert it into a Bivens action. Furthermore ...


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