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Prison Legal News: July, 1999

Issue PDF
Volume 10, Number 7

In this issue:

  1. Strip Mining Human Rights in Virginia's Supermax Dungeons (p 1)
  2. Florida Guards Acquitted in Brutality Case (p 3)
  3. The Mentally Disordered Inmate and the Law, by Fred Cohen (Book Review) (p 4)
  4. From the Editor (p 4)
  5. Behind Bars in Brazil (Review of Human Rights Watch Report) (p 5)
  6. Human Feces in California Prison's Water (p 6)
  7. Iowa to Close Prison Law Libraries (p 7)
  8. South Korea Frees Political Prisoner after 41 Years (p 7)
  9. Ohio Prisons Cited by EPA (p 8)
  10. Missouri Ends Ad Seg Ban on Publications (p 8)
  11. Detainee Beaten to Death at Nassau County Jail (p 9)
  12. Wisconsin Prisoners Stage Food Protest (p 10)
  13. Exhaustion Required (p 10)
  14. PLRA Physical Injury and Administrative Exhaustion Requirements Not Retroactive (p 10)
  15. Illinois Exhaustion Described (p 10)
  16. Federal Habeas Not Subject to PLRA (p 10)
  17. PLRA Doesn't Affect Court Contempt Powers (p 10)
  18. PLRA Physical Injury Requirement Not Retroactive (p 11)
  19. Guard Guilty of Penis Stomping (p 11)
  20. Florida Prison Erupts (p 12)
  21. Washington Gift Subscription Ban Injunction Affirmed (p 13)
  22. $660,000 Awarded in Post-Sandin Segregation Suit (p 14)
  23. Private Prison Guard Is State Actor for § 1983 Purposes (p 14)
  24. VitaPro President Arrested (p 14)
  25. Liberty Interest in Parole-Required Custody Classification (p 15)
  26. Withholding Dental Care Violates Eighth Amendment (p 15)
  27. No Interlocutory Appeal on Supervisory Liability When Guard Stabs Prisoner (p 16)
  28. Denial of HIV Medication Subjects Medical Contractor to Liability (p 17)
  29. Kansas Good Time Forfeiture Violates Ex Post Facto (p 17)
  30. Arizona Prisoners Can Pay Filing Fee in Installments (p 18)
  31. Infraction Inadmissable at Criminal Trial (p 18)
  32. BOP Erred in Running State Sentence Consecutive to Federal Sentence (p 18)
  33. Washington Restitution Order Expired Ten Years After Release (p 19)
  34. Adequate Opportunity for Discovery Required (p 19)
  35. Texas Courts Must Hold Hearing Before Dismissing Suit for Having No Arguable Basis in Fact (p 20)
  36. No Suspicion Required for California Parolee Searches (p 20)
  37. IDEA Confers Right to Education Even in SHU (p 20)
  38. $130,000 in Damages and Fees Awarded in New York Retaliation Suit (p 21)
  39. Qualified Immunity in Transsexual Treatment Case (p 21)
  40. New York Work Release Suit Dismissed (p 22)
  41. Edwards No Bar to Seg Suit (p 22)
  42. Washington EFV Cut-Off Date Questioned (p 23)
  43. News in Brief (p 24)
  44. Retaliation Suit States Claim (p 24)
  45. FRAP 24 Good Faith Standard Not High (p 25)
  46. 376 Days in New York Seg "Atypical and Significant" Hardship (p 25)

Strip Mining Human Rights in Virginia's Supermax Dungeons

Red Onion State Prison stands out like a hideous scar among southwest Virginia's otherwise beautiful, rolling and wooded hills. Viewed from the air it looks like a mountain whose crown was hacked off and leveled flat. I remember looking at an aerial photo that appeared in the New York ...

Florida Guards Acquitted in Brutality Case

Florida prisoner John Edwards, 28, an HIV+ double-murderer serving a life sentence, was transferred to the Charlotte Corr. Institution (CCI) on Aug. 18, 1997 after biting a Zephyrhills prison guard on the cheek. According to federal prosecutors, once Edwards arrived at CCI he was subjected to beatings and sadistic abuse ...

The Mentally Disordered Inmate and the Law, by Fred Cohen (Book Review)

Civic Research Institute, 578 pp.

Reviewed by Paul Wright

With the steady criminalization of mental illness over the past thirty years, prisons and jails now hold hundreds of thousands of mentally ill prisoners. Conservative estimates place the number of mentally ill prisoners at 8 to 10% of the nation's ...

From the Editor

Greetings and welcome to another issue of PLN . I'd like to bring to your attention a slight change in PLN 's mailing address. The U.S. Postal Services decided that mail addressed to "private mail boxes" (those handy mail centers that offer friendlier and cheaper p.o. box service ...

Behind Bars in Brazil (Review of Human Rights Watch Report)

Reviewed by Julia Lutsky

Since Brazil is the largest nation in Latin America it comes as no surprise to know that its prisons hold more people than do the prisons of any other Latin American nation. Its prison problems are magnified versions of those found nearly everywhere in modern prisons ...

Human Feces in California Prison's Water

Human Feces In California Prison's Water

by W. Wisely

For years, guards and staff at California's Tehachapi prison have kept a secret. A secret now exposed in a lawsuit pending trial in a Fresno County federal court. A secret discovered by prisoners who obtained copies of internal memos ...

Iowa to Close Prison Law Libraries

In February, 1999, Iowa Department of Corrections director W.L. "Kip" Kautzky announced that within the next two years all prison law libraries in Iowa would be phased out. Kautzy claimed that the state of Iowa currently spends $500,000 a year to maintain its prison law libraries.

Kautzky stated ...

South Korea Frees Political Prisoner after 41 Years

South Korea Frees Political Prisoner After 41 Years

On February 25, 1999, South Korea freed Woo Yong Gak, the world's longest serving political prisoner. Woo spent 41 years in solitary confinement in a 12' by 12' cell in the Taejon penitentiary. The 70 year-old Woo told reporters upon his ...

Ohio Prisons Cited by EPA

In Ohio, the task of keeping water safe and pure is delegated to the Ohio Environmental Protection Agency (OEPA). The task of keeping prisoners locked up belongs to Ohio's Department of Rehabilitation and Corrections (DORC). Under Ohio Revised Code (R.C.) §2921.44, the DORC has the responsibility to ...

Missouri Ends Ad Seg Ban on Publications

On October 22, 1998, the Potosi Correctional Center (PCC) in Missouri ended its ban on publications sent to prisoners in administrative segregation (ad seg). PCC houses a control unit where prisoners are kept in ad seg for lengthy periods of time. The prison's previous policy had been to prohibit ...

Detainee Beaten to Death at Nassau County Jail

When Thomas Pizzuto entered the Nassau Co. jail in East Meadow, New York to serve 90 days for traffic violations, he didn't know the jail term would become a death sentence.

Pizzuto, 38, a recovering heroin user who was in daily methadone treatment repeatedly asked for his medication and ...

Wisconsin Prisoners Stage Food Protest

On January 18 and 19, 1999, Wisconsin prisoners housed at a private prison in Sayre, Oklahoma, refused to show up at the prison's chow hall for meals. John Wisener, chief of security at the North Fork Correctional Center, said that only 75-80 of the 700 prisoners attended any of ...

Exhaustion Required

A federal district court in New York held that a New York state prisoner was required to exhaust the prison grievance system before filing suit. The court held that exhaustion under 42 U.S.C. § 1997e(a) is required even if the grievance process is futile. The case involved a ...

PLRA Physical Injury and Administrative Exhaustion Requirements Not Retroactive

A federal district court in Illinois held that 42 U.S.C. § 1997e(a), which requires administrative exhaustion before prisoners file suit, and 42 U.S.C. § 1997e(e), which requires physical injury, before prisoners can file suit, do not apply retroactively to suits filed before the PLRA's enactment ...

Illinois Exhaustion Described

A federal district court in Illinois held that a prisoner had fully exhausted all available administrative remedies under 42 U.S.C. § 1997e when he submitted a grievance through all levels of the Illinois Department of Corrections. Brian Jones filed suit claiming a prison guard beat him when he protested ...

Federal Habeas Not Subject to PLRA

The court of appeals for the Fifth circuit held that 28 U.S.C. § 2241 habeas petitions are not subject to the filing fee provisions of the Prison Litigation Reform Act (PLRA). Samuel Davis, a federal prisoner, filed a writ of mandamus to compel the U.S. Parole Commission to ...

PLRA Doesn't Affect Court Contempt Powers

A federal district court in New Jersey held that 18 U.S.C. § 3626, which allows for the immediate termination of prison and jail consent decrees, does not affect the contempt powers of courts. The underlying case involves a motion by jail detainee plaintiffs to impose contempt sanctions on jail ...

PLRA Physical Injury Requirement Not Retroactive

The Tenth circuit court of appeals held that the Prison Litigation Reform Act's physical injury requirement, codified at 42 U.S.C. § 1997e(e), does not apply retroactively to lawsuits filed before the PLRA's enactment on April 26, 1996. Bobby Craig, a pretrial detainee at the Otero county ...

Guard Guilty of Penis Stomping

Afederal district court in Buffalo categorically rejected a jail guard's post-trial motions in a criminal proceeding, in which he was found guilty of violating a prisoner's Eighth Amendment rights.

John Walsh was a lieutenant at the Orleans County (NY) jail. He weighed 400 pounds and liked to be ...

Florida Prison Erupts

On March 17, 1998, shortly after Hendry Correctional Institution (HCI) began feeding the prisoners supper, a melee broke out on the yard in front of the chowhall. Within moments, several guards, including the shift supervisor, were lying unconscious in the dirt.

The seeds of discord were planted months earlier when ...

Washington Gift Subscription Ban Injunction Affirmed

In the February, 1998, issue of PLN we reported Crofton v. Spalding and Crofton v. Ocanaz. Both were unpublished rulings from the U.S. district court in Spokane, Washington. Two separate judges ruled that a Washington State Penitentiary (WSP) policy requiring that prisoners purchase all books and magazine subscriptions from ...

$660,000 Awarded in Post-Sandin Segregation Suit

On February 26, 1999, a federal jury in Rochester, New York, awarded New York state prisoner David McClary $660,000 in damages after finding he was improperly held in administrative segregation for over four years. In the March, 1999, issue of PLN we reported McClary v. Kelly, 4 F. Supp ...

Private Prison Guard Is State Actor for § 1983 Purposes

Private Prison Guard is State Actor for § 1983 Purposes

Afederal district court in New Mexico held that a guard employed by Corrections Corporation of America was a "state actor" acting under "color of state law" when he allegedly raped a woman prisoner. The court also held that the guard was ...

VitaPro President Arrested

In the latest development in the on-going VitaPro scandal involving the Texas Dept. of Criminal Justice, Yank Barry was arrested Feb. 11, 1999. Barry, president of Montreal-based VitaPro Foods Inc., was indicted in January 1998 with former state prison chief James A. "Andy" Collins [ PLN , July 1998].

Collins was charged ...

Liberty Interest in Parole-Required Custody Classification

Liberty Interest In Parole-Required Custody Classification

A federal district court in Massachusetts held that depriving a prisoner of eligibility for minimum security classification, when it's a necessary prerequisite for parole consideration, violated the prisoner's equal protection right to be treated as other prisoners similarly situated. The court also ...

Withholding Dental Care Violates Eighth Amendment

ANew York federal district court held that failure to treat a prisoner's abscessed wisdom tooth was a sufficiently serious medical condition to sustain an Eighth Amendment claim. The court also held that material issues of fact as to whether the prison's health services director was deliberately indifferent to ...

No Interlocutory Appeal on Supervisory Liability When Guard Stabs Prisoner

The court of appeals for the Fifth circuit held that it lacked jurisdiction to hear a warden's interlocutory appeal disputing material facts in the case. The court also held that letters from a prisoner alerting supervisory prison officials to risks or dangers are sufficient to impose liability on those ...

Denial of HIV Medication Subjects Medical Contractor to Liability

Afederal district court in Maine held that a former pretrial detainee had stated a claim when a jail's medical contractor denied him his HIV medication for three days.

David McNally was arrested and booked into the Cumberland County jail in Maine. During the booking process McNally told jail staff ...

Kansas Good Time Forfeiture Violates Ex Post Facto

The Kansas court of appeals held that the retrospective application of a new prison rule governing the forfeiture of good time credits violated the Ex Post Facto Clause when the rule took effect after the prisoner's crime was committed and it disadvantaged the prisoner.

In 1987, Jeffrey Garner was ...

Arizona Prisoners Can Pay Filing Fee in Installments

An Arizona appellate court held that a lower court had erred in ruling incarcerated felons were required to prepay, in its entirety, all filing fees when filing civil actions.

Jose Inzunza-Ortega attempted to file a civil suit in Maricopa county (Phoenix) superior court with in forma pauperis status. The court ...

Infraction Inadmissable at Criminal Trial

The court of appeals for the Seventh circuit held that a district court erred when it admitted testimony on the outcome of a prison disciplinary hearing in a criminal trial on the same charges.

Anthony Thomas was convicted in federal court of mailing death threats to the state prosecutor that ...

BOP Erred in Running State Sentence Consecutive to Federal Sentence

Afederal district court in Oregon granted a federal prisoner's petition for habeas corpus, ordering his immediate release from confinement. The court held that the federal Bureau of Prisons (BOP) improperly treated the prisoner's concurrent California state sentence as consecutive to his federal sentence, thereby extending his term of ...

Washington Restitution Order Expired Ten Years After Release

The Washington state court of appeals granted a prisoner's personal restraint petition, holding that under RCW 9.94A.142(1994) his restitution obligation expired 10 years after his release from confinement for the crimes which gave rise to the restitution order.

In 1986, Brandt Sappenfield was sentenced to prison ...

Adequate Opportunity for Discovery Required

The court of appeals for the Second Circuit held that when a pro se prisoner brings a colorable claim against supervisory prison officials, and those officials respond with a dispositive motion based on the prisoner's failure to identify the real culprits, dismissal should not occur without additional time for ...

Texas Courts Must Hold Hearing Before Dismissing Suit for Having No Arguable Basis in Fact

A Texas state appellate court held that prison guards may not be sued as individuals under the Texas Tort Claims Act, Texas Civil Practice and Remedies Code §§ 101.001101.109, and district courts may not dismiss a prisoner's suit for failing to state an arguable basis in fact without ...

No Suspicion Required for California Parolee Searches

The California supreme court held that no suspicion of any wrongdoing is required for the warrantless searches of the homes and property where California parolees reside.

Rudolfo Reyes was a California parolee. As a condition of his parole Reyes had signed a parole agreement which included a standard condition: "You ...

IDEA Confers Right to Education Even in SHU

IDEA Confers Right to Education Even In SHU

The First Circuit court of appeals has held that a prisoner receiving educational services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(e)(4)(B), is entitled to a free and public education under an individualized education ...

$130,000 in Damages and Fees Awarded in New York Retaliation Suit

In the October, 1996, issue of PLN we reported Alnutt v. Cleary, 913 F. Supp. 160 (WD MY 1996). The case involves New York state prisoner Jeffrey Alnutt who filed suit in 1990 after various guards at the Wende Correctional Facility retaliated against him to prevent him from performing his ...

Qualified Immunity in Transsexual Treatment Case

In the December, 1998, issue of PLN we reported Farmer v. Hawk, 991 F. Supp. 19 (D DC 1998). Dee Farmer, a federal pre operational male to female transsexual, challenged the Bureau of Prisons (BOP) policy of not providing adequate treatment to transsexual prisoners. The district court denied the defendants ...

New York Work Release Suit Dismissed

In the February, 1997, issue of PLN we reported Roucchio v. Coughlin, 923 F. Supp. 360 (ED NY 1996), which held that New York prisoners may have a due process liberty interest in work release status. In this ruling, the same court held that before a 42 U.S.C ...

Edwards No Bar to Seg Suit

Afederal district court In Michigan held that a retaliatory infraction lawsuit could be pursued via 42 U.S.C. § 1983 even though the disciplinary bearing result bad not been invalidated. The court also held that the plaintiff's claim that a guard had threatened to have him shot for filing ...

Washington EFV Cut-Off Date Questioned

Afederal district court in Washington held that a prisoner had been wrongly prevented from applying to the state's Extended Family Visiting (EFV) program. The court also held that prison rules restricting EFV participation to prisoners married before their incarceration did not violate the ex post facto clause.

EFVs are ...

News in Brief

AR: Little Rock parole officer William Lambert was arrested March 17, 1999 after police found 10 grams of methamphetarnine in his possession. He was charged with intent to deliver and released on a $52,500 bond.

AZ: Robert Wayne Vickers, sentenced to death for killing fellow death row prisoner Wilman ...

Retaliation Suit States Claim

Afederal district court in Illinois held that a jail prisoner had stated a claim upon which relief could be granted in his lawsuit alleging retaliation. David Lewis was a prisoner in the Cook county (Chicago) jail in Illinois where he worked as a law library clerk. Lewis filed a grievance ...

FRAP 24 Good Faith Standard Not High

The court of appeals for the Seventh Circuit held that district courts should not apply inappropriately high standards when making "good faith" determinations on in forma pauperis (IFP) motions under Rule 24 of the Federal Rules of Appellate Procedure (FRAP). The court also noted that these certifications have not been ...

376 Days in New York Seg "Atypical and Significant" Hardship

376 Days in New York Seg "Atypical and Significant" Hardship

Afederal district court in New York held that a state prisoner's 376-day confinement in segregation was an atypical and significant hardship pursuant to Sandin v. Conner, 515 U.S. 472 (1995).

Raymond Lee, a New York state prisoner, was ...