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Prisoner Education Guide

Prison Legal News: July, 1999

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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 Times and thinking: "That looks like a strip mine, a strip mine with fences around it and a building in the middle."

Red Onion is the first of two 1,200-bed "Supermax" high-tech dungeons opened by the Virginia DOC since August 1998. Both are located in Wise County, near the Kentucky border, in the extreme southwest corner of the state. Coal-mining country.

It's a familiar story: as the coal mining jobs dry up (in other states it's steel or lumber mills closing, a declining fishing industry, or lost manufacturing jobs) in the rural, mostly white, backwaters of the state, lawmakers in the capital start smelling opportunity. The formula is simple: ramp-up the "War on Drugs" (waged mainly against urban non-white poor), then build pork-barrel prisons in the job-starved (mostly white) rural communities. Presto! You've gotten tough on crime, cracked down on drugs, and created jobs. It's ...

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 so severe that he tried to kill himself; he bled to death while strapped naked to a metal bunk.

Following an investigation by the U.S. Attorney's office, ten prison employees eight at CCI and two from the Zephyrhills prison were indicted in July 1998 on civil fights and conspiracy charges in connection with Edwards' death. All were removed from their jobs. [See: PLN , Oct 98].

Three of the CCI guards, Robert M. Shepard, Thomas J. McErlane and John D. Robbins, pleaded guilty and agreed to testify against their former co-workers in exchange for potentially lighter sentences. The remaining defendants, Capt. Donald Abraham, Capt. Kevin Browning, Sgt. Michael Carter, Sgt. Gary Owen, and guards Richard Wilks, Paul Peck and Joseph Delvecchio, went to trial in Fort Myers on Jan. 6, 1999.

Former CCI guard Shawn Grueber testified that Capt. Abraham had been informed of the biting incident at Zephyrhills ...

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 prison and jail population. Mentally ill prisoners impose a different set of obligations on detention facility officials, and liability if those needs are not met. The Mentally Disordered Inmate and the Law (TMDIL) offers a concise, detailed overview of the mentally ill prisoner and detainee and the legal requirements on officials who incarcerate the mentally ill.

The book's author, Fred Cohen, is one of the leading experts on mental health care law in prisons. He has served as a court monitor and expert witness in mental health care lawsuits as well as publishing, lecturing and consulting on the topic. He Is also co-editor of The Correctional Law Reporter.

The book will be most useful to prison and jail officials, medical staff who deal with mentally ill prisoners and those who are litigating issues surrounding the care, or lack of care, for such prisoners. This book serves as an ideal ...

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) needs to be addressed with a "PMB" number (for "Private Mail Box"). This means that when you write to PLN , you MUST addressed the letter like this:
Prison Legal News
PMB 148
2400 NW 80th St.
Seattle, WA 98117

Effective November 1, 1999, the U.S. Postal Service will refuse to deliver mail to private mailing centers (their competitors in the p.o. box market) if the letters are not "properly" addressed with the PMB number. Please adjust your records.

Speaking of small-minded bureaucrats who refuse to deliver mail, the Washington DOC refused to deliver the May '99 issue to our (more than 100) WA prisoner subscribers. Various reasons were given for this blanket censorship. But the main reason is that WA DOC authorities don't want WA prisoners to read the pg 12-16 article, "White Guard, Black Guard" about allegations of racist guards in the WA DOC.

Those of ...

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: most significant among them the overcrowding of poor prisoners into run down facilities. The sheer size of the prison system intensifies the opportunity for abuse behind walls. So reports Human Rights Watch in their report, Behind Bars in Brazil, issued in December, 1998.

The report abounds with examples of both guard-on-prisoner and prisoner-on-prisoner abuse. There is in Brazil, however, a high rate of violent crime which has resulted in a high degree of public apathy toward the possible existence of this abuse. How much of the public's fear of crime and apathy toward possible abuses against prisoners is caused by media reporting rather than by the high crime rate itself is not addressed. In any case, the extent of abuse visited on prisoners is either unknown to the general Brazilian public, or it is accepted as it is here: well deserved since "prison[ers are] criminals - [and] not worthy ...

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 and reports from the prison's maintenance department. A secret that caused sores to appear on prisoners for no apparent reason, and to remain open on their skin for months. A secret that caused the water prisoners used to bathe in, drink from, and cook with to make them sick.

"There's basically feces in the water," said Herman Franck, a San Francisco attorney representing the plaintiffs. The lawsuit is just one of dozens detailing injuries suffered by Tehachapi prisoners because of the contaminated water supply. The suit describes how more than 400 prisoners developed symptoms ranging from simple "sneezing" to "tiny clusters of pus-filled bumps covering their... face, penis and scrotum." According to the suit, at least one prisoner has died so far from the contaminated water.

Prisoncrats predictably denied the water is tainted. The California Department of Corrections protested in court that "millions of free Americans do not ...

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 that the DOC would pay the public defenders office $150,000 to "provide legal advice and do research" for Iowa's 7,400 prisoners. Given the amount of money it is unlikely the contract will provide actual court representation. Similar contracts in other states only provide for assistance in drafting initial pleadings, once a suit is filed the prisoner is on their own with no ability to do research to actually litigate the claim.

The stated reasons for closing the prison law libraries are to save money and avoid frivolous law suits. Iowa now joins Arizona, Idaho, North Carolina and Utah, as states which do not provide law libraries for prisoners. Georgia and California have also announced plans to eliminate their prison law libraries by attrition. This is part of the trend begun by the U.S. supreme court ruling in Lewis v. Casey, 116 S.Ct. 2174 (1996) which ...

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 release "After living for decades in a closed place, I am so happy to walk out into this open world."

Woo is a North Korean who was captured on a boat off South Korea's coast in 1958. The South Korean government convicted him of espionage. Woo said he hopes to return to North Korea where he has a wife and son.

More than 200 political prisoners remain in South Korean prisons. Woo was freed along with 16 other political prisoners accused of espionage for North Korea. They were released under a special amnesty to celebrate the first anniversary of South Korean president Kim Dae-Jung's rule. Also released were 1,490 non-political prisoners who had their sentenced commuted under the amnesty and 7,304 parolees who were pardoned.

Since taking office Kim has released 180 political prisoners. These prisoners were released on the condition that they sign an oath ...

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 provide prisoners with adequate food, clothing, and shelter. Wardens can be charged with a major misdemeanor or low-level felony for violation of this statute.

Apparently, certain institutions under control of DORC didn't feel it necessary to discharge safe sewage effluents into state surface waters.

In December 1998, the [Columbus, OH] Dispatch reported that Pickaway Correctional Institution (PCI) was being investigated for dumping partially-treated sewage effluent into Big Darby Creek, a National Scenic Waterway. PCI serves a complex of prisons -- Corrections Reception Center (CRC), Orient Correctional Institution (OCI), PCI, and the Corrections Training Academy (CTA) -- and the village of Orient, Ohio, with water and sewer services. Originally, PCI and OCI were a single facility used for mental health care, but they have since been split into prisons to house Ohio's swelling prisoner ranks. CRC and CTA were built later. The number of people regularly served by the PCI water ...

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 all ad seg prisoners from receiving any newspapers or magazines.

In response to a lawsuit filed by Jerome White-Bey,in the Washington county circuit court, the Missouri Department of Corrections changed its policy banning all publications from its ad seg units. Under its new policy, Missouri prisoners in ad seg can subscribe to one newspaper and one magazine. The defendant prison officials are now arguing that this policy change moots White-Bey's claim for injunctive relief.

At this time, PLN is aware of only two other states which ban prisoners in control units from receiving publications, which are Washington and Alabama. The Washington practice is currently being challenged in court in Humanists of Washington v. Lehman and the Alabama practice was challenged in Spellman v. Johnson. Spellman went to trial over two years ago and the court has not yet issued a ruling in the case.

We would like to ...

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 argued with a guard on Jan. 8, 1999, the day after he arrived at the 2,200-bed Nassau Corr. Center. According to a prisoner in the same cell block, four guards entered Pizzuto's cell during a lockdown and proceeded to savagely punch and kick him. The prisoner, who was not identified, said one guard wrapped a metal chain around his fist and hit Pizzuto hard enough to leave chain link impressions in his face.

Following the beating, jail guards forced Pizzuto to sign a statement that he had fallen in the shower; they allegedly threatened to beat him again and said he wouldn't receive his methadone if he didn't sign. The guards refused to provide him with medical treatment.

Three days later, after suffering a seizure, Pizzuto was taken to the Nassau County Medical Center. His father came to visit and when a jail officer walked away ...

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 the meals over the two-day period

"They have our attention," Wisener told the Post-Crescent, an Appleton, Wisconsin newspaper.

Wisener told the Post-Crescent that a survey was distributed to all of the prisoners on the second day of the protest to find out what they thought about the food. He said the prison is looking at its food operation, talking to the dietician, the district manager for the food service provider and checking the menu to determine if improvements are needed.

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 claim that a prison urine test was done without probable cause and the urine sample was tampered with to show drug use. The court dismissed some of the claims as legally frivolous. See: Giano v. Goord , 9 F. Supp.2d 235 (WD NY 1998).

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 on April 26, 1996. In doing so the court denied the defendants' motion to dismiss a prisoner's suit that he was denied a toilet for seven hours while waiting to testify on behalf of a prisoner plaintiff in court. To date no courts have applied these requirements to suits filed before the PLRA's enactment. See: Cunningham v. Eyman, 11 F. Supp.2d 969 (ND IL 1998).

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 the beating of another prisoner.

Prior to filing suit Jones filed a grievance. He appealed the unsatisfactory response to the next level and finally to the Illinois DOC director. The DOC director had 15 days in which to respond to the grievance but never did. The court denied the defendants' motion to dismiss for failure to exhaust administrative remedies under § 1997e. "Jones should not be penalized by the court for inaction on the part of the board or the director." The court held Jones had pleaded sufficient facts to survive a motion to dismiss. See: Jones v. DeTella, 12 F. Supp.2d 824 (ND IL 1998).

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 correct various errors. The district court converted the motion into a habeas petition under § 2241 and dismissed it as abusive. The appeals court held that the PLRA's screening and filing fee provisions do not apply to habeas petitions by federal prisoners.

The court had previously held that the PLRA does not apply to 28 U.S.C. § 2254-55 habeas petitions by state prisoners. See: Carson v. Johnson, 112 F.3d 818 (5th Cir. 1997). The court gave an extensive discussion to all the circuit rulings on this issue. While all circuits have held that the PLRA does not apply to habeas petitions challenging criminal convictions, some circuits have held the PLRA applies if a prisoner challenges conditions of confinement via habeas. See: Davis v. Fechtel, 150 F.3d 486 (5th Cir. 1998).

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 officials for not complying with a consent decree over jail conditions. The court ultimately declined to sanction jail officials for their many decree violations.

The court held that as long as the underlying decree remains valid, courts can enforce it using their contempt powers. See: Essex County Jail Annex Inmates v. Treffinger, 18 F. Supp.2d 445 (D NJ 1998).

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 jail in La Junta, Colorado, filed suit in 1995 seeking damages for time spent in an unsanitary jail cell. Craig withstood one motion for summary judgment, after which the court appointed counsel.

The jail official defendants then filed a second motion for summary judgment which reargued their first motion and which also argued that § 1997e(e) barred Craig's lawsuit because he had not claimed he suffered any physical injury as a result of the dirty cell. Section 1997e(e) states that prisoners and pretrial detainees cannot file suit in federal court unless they have suffered physical injury. The district court dismissed the suit on the physical injury claim. The court of appeals reversed and remanded.

The Tenth circuit declined to rule on the constitutionality of § 1997e(e). Instead, the court simply held that the statute does not apply retroactively to cases that were filed before its 1996 enactment. In ...

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 called "Hammer Jack."

Norvin Fowlks was a frequent prisoner at the jail. He was also "mentally ill" and "housed in a mental hospital" at the time of the trial. In addition, Fowlks was apparently an indigent tobacco smoker.

Late one night in the winter of '91, Fowlks was overheard by another guard repeatedly shouting, "Big Jack, give me a cigarette." At the time, Fowlks was being held naked in a strip-cell. Walsh responded to the request by stating, "OK, Norvin, you know the routine, put your dick on the bars." When Fowlks complied, Walsh stepped on Fowlks' penis, causing his eyes to bulge and prompting him to shriek from the pain. Walsh then gave Fowlks a cigarette.

The following year Fowlks was back in jail. This time Walsh approached Fowlks' cell holding a cigarette, while punching his fist into the palm of his other hand. Walsh asked Fowlks, "Who am ...

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 long-time HCI secuirty chief, Col James Page, was replaced for his corrupt ways by prison superintendent Paul Schriner. Under Page's tenure, HCI was a wide-open, laid back facility.

Since Schriner arrived in mid '96 after a 10 year stint in the Arizona DOC, HCI led Florida prisons in murders, robberies, drunks and general mayhem. This dubious distinction did not sit well with Schriner.

In early 1998, Schriner selected James "Lock 'em Up" Locke, as Page's replacement. Locke was a former HCI lieutenant, who transferred to North Florida Reception Center (NFRC), where he advanced through the ranks to colonel. NFRC is the notorious Lake Butler prison known for extreme totalitarianism and prisoner abuse.

Schriner and Locke soon formulated a plan to rein in HCI prisoners by instituting draconian policies. As word filtered down to the guards, the extremists among them began flexing their authority uncharacteristically.

Locke assumed command of ...

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 their prison trust accounts was unconstitutional. The policy specifically banned gift subscriptions and book gifts. On March 26, 1999, the court of appeals for the Ninth circuit affirmed the lower court rulings.

The district courts issued injunctions prohibiting WSP officials from applying the trust fund account purchase requirement to books and magazines. The district court denied the plaintiff, Clayton Crofton, damages because he eventually received the publication he had initially been denied, and the court held the defendants were entitled to qualified immunity from money damages because the case law on this issue was not clearly established. The case arose when Crofton's stepfather purchased a book for Crofton from a bookstore which then shipped the book to him. Also at issue in the lower court but not mentioned in the published Ninth circuit ruling, were several magazine subscriptions that were given to Crofton, including PLN , which he was not ...

$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 not immune from suit for compensatory and punitive damages under the New Mexico Tort Claims Act because he was not a state employee; instead he was an independent contractor's employee.

Tanya Giron, a New Mexico prisoner, filed a 42 U.S.C. § 1983 suit in federal court claiming that on May 26, 1994, Danny Torrez, a guard at the New Mexico Women's Correctional Facility run by CCA, entered her cell and forcibly raped her. The court stated that Torrez acted under "color of state law" because he was performing job functions normally attributed to state authority, i.e. the strictly governmental authority to incarcerate people. Torrez also used his position as a guard to gain access to the prisoner's cell. That he then forced the prisoner to have sex with him was a definite misuse of state authority and was attributable to the State. The court further ...

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 with six federal counts of bribery, conspiracy, money- laundering and fraud in connection with a TDCJ contract to purchase $33.7 million worth of VitaPro, a soy-based meat substitute, for the state prison system.

VitaPro president Yank Barry faces charges of conspiring to hide illegal payments to Collins by funneling them through a front company; Barry was arrested after arriving in Houston on a flight from Canada.

The TDCJ is pursuing a lawsuit to cancel the VitaPro deal, claiming the contract was fraudulent and the department had no authority to enter into the agreement. The state Supreme Court has agreed to hear the case.

Source: The Dallas Morning News

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 held that the prisoner had a due process liberty interest in eligibility for minimum security classification.

The prisoner, John Carillo, was sentenced to a life term under the laws of Rhode Island prior to 1989 and "is statutorily eligible for parole after having served ten years of his sentence." However, to be granted parole Carillo must have successfully completed "at least six months in a minimum security facility."

In Carillo's case, the problem began when the Rhode Island DOC transferred Carillo to the Massachusetts Correctional Institute at Cedar Junction under the New England Corrections Compact. "Pursuant to the Compact, Carillo remains subject to the parole jurisdiction of Rhode Island." Carillo alleged in his 42 U.S.C. § 1983 complaint that he has been unable to "satisfy the parole conditions established by the Rhode Island parole board since "it is the policy of the Massachusetts [DOC] to classify prisoners serving ...

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 a prisoner's serious medical needs, and whether sergeants on the prison's security staff directed guards not to release prisoners for medical appointments precluded summary judgement in their favor.

Francisco Ramos, a prisoner at the Attica Correctional Facility in Attica, NY, filed a 42 U.S.C. § 1983 complaint alleging that Dr. David O'Connell, the prison's health services director, and prison sergeants Gavigan and Coffey, violated his Eighth Amendment right to be free from cruel and unusual punishment when they deliberately denied him medical treatment for an abscessed tooth.

Ramos "refused to be treated for tuberculosis (TB) upon his entry into the New York State Department of Correction Services (DOCS) system and was therefore placed in medical quarantine in the Special Housing Unit." He was allowed out of his cell only ten minutes a week for a shower and any scheduled legal visits.

On several occasions during ...

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 officials for harm that later befalls the prisoner.

Eric Smith, a Louisiana state prisoner, sent several letters to Louisiana State Penitentiary (LSP) warden John Whitley complaining that guard Steve Brengettsy [Smith misspelled Brengettsy's name on the complaint which is why the case name differs from the spelling used in the case and this article] was threatening and verbally abusing him. Smith complained to a prison lieutenant and shift supervisor as well. No action was taken. Eventually Brengettsy stabbed Smith in the stomach. Smith then filed suit claiming the stabbing violated his Eighth and Fourteenth amendment rights. Smith also claimed that Whitley was liable for failing to properly supervise Brengettsy and investigate Smith's complaints.

Whitley filed a motion for summary judgement, claiming he was entitled to qualified immunity from suit. The district court denied the motion because Whitley's evidence supporting his motion was not authenticated and he did ...

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 he was HIV positive and on a strict regimen of medication. The jail had contracted with Prison Health Services, Inc., (PHS) to provide medical care to jail prisoners. McNally told the PHS physician of his medical needs and McNally's personal doctor called the jail and confirmed McNally's prescription and dosages. PHS denied the medication request. McNally spent three days in the jail without his medication before bailing out. He was then hospitalized for several days as a result of the interruption of his medication, which was compounded by a beating by police.

McNally sued PHS and Cumberland jail officials claiming they violated his constitutional right to adequate medical care and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131. PHS filed a motion to dismiss, claiming McNally's complaint did not show, as a matter of law, that PHS was deliberately indifferent to his medical needs ...

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 sentenced to prison on a robbery conviction. He was later paroled but his parole was revoked and he was returned to prison. As a result of several prison rule violations Garner had 13 months of good time credits forfeited and withheld, pursuant to K.A.R. 44-6-142, as amended on March 1, 1995, extending his conditional release date (CRD) from August 5, 1997, to September 5, 1998.

Garner petitioned for habeas corpus, arguing that the forfeiture of good time credits under the 1995 rule disadvantaged him because under the rules that were in effect when he committed his crime, the penalties he would have suffered for the disciplinary violations - including the loss of good time credits - would have affected only his parole eligibility date and not his CRD.

The court agreed that if the CRD would not have been affected under the 1987 rules, K.A.R. 44-6-142(1995 Supp ...

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 clerk rejected the suit, claiming that Arizona Revised Statutes (ARS) § 12-302(L)(2) required that incarcerated felons prepay the entire $140 filing fee when filing suit.

Inzunza-Ortega then filed a petition for a special action in the appellate court arguing that ARS 8 12-302(L)(2) denied him access to the courts. Without reaching the merits of the constitutional issue, the appeals court granted relief.

The court relied on ARS 8 12-302(F), which allows prisoners to pay filing fee costs in installments If they file in forma pauperis. This statute was upheld as constitutional by a federal district court. See: Beck v. Symington, 972 F. Supp. 532 (D AZ 1997)[ PLN , Mar. 1998], but has been amended since then. The court acknowledged a "seeming conflict" between ARS 12-302(L)(2) and § 12-302(E) and § 12-302(m).

The court held that ARS § 12-302(E) applied to this case and the ...

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 had prosecuted him on state criminal charges. Thomas was in an Illinois state prison when he mailed the death threats. At the criminal trial an Illinois prison employee testified that Thomas had been infracted and found guilty by a disciplinary committee of mailing the death threats. Thomas objected but was overruled. The appeals court affirmed the conviction, finding that while error occurred, it was harmless.

The appeals court held that under Fed.R.Evid. 403 testimony of the disciplinary hearing should not have been admitted at trial. "The probative value of the testimony was limited at best, since the sole purpose of the hearing was to determine whether Thomas should be disciplined under IDOC policies, not whether Thomas had violated federal criminal law.... And the risk of unfair prejudice was substantial. The jury was unaware that Thomas was not given the procedural protections that exist in federal court.... or 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 confinement by three years.

Donald Cozine was convicted of federal drug charges and sentenced to 37 months in prison. He was later sentenced to 80 months in prison on California drug charges. The California sentencing judge expressly ordered that the state sentence run concurrently to the federal sentence and recommended that Cozine serve the federal sentence in California pursuant to Calif.Penal Code § 2900(b)(2).

Although Cozine had already served 67 months when he was paroled from his California sentence, the BOP refused to release him, insisting that he still owed 14 months on his federal sentence.

The BOP argued that: (1) under 18 USC § 3584(a) the federal sentence automatically runs consecutively to the California sentence because the federal judge did not expressly order that it run concurrently - although at the time the federal sentence was imposed there was no other sentence that it could be made concurrent ...

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 and ordered to pay restitution for various property crimes. Sappenfield was released from confinement after serving a one-year prison term, but was returned to prison in 1989 to serve a 24-year sentence for murder.

In 1996, Sappenfield filed a personal restraint petition seeking relief from the 1986 restitution order. He argued that under RCW 9.94A.142(1986) the trial court lost jurisdiction to enforce the order after August 1996 because 10 years had elapsed since the order was entered. The State argued, however, that a 1994 amendment to RCW 9.94A.142, redefining the limits of the court's jurisdiction over the collection of restitution applied to Sappenfield and tolled his 1986 restitution obligation until after his release from confinement for the 1989 murder conviction.

The court agreed that the 1994 amendment could be applied to Sappenfield, but rejected the State's tolling argument. The court held that under ...

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 discovery to ascertain the identity of those responsible.

In 1992, a long-time Attica prisoner filed a civil rights action against the warden and others. Shortly thereafter, his pending transfer to a decent prison was canceled. A year later, the prisoner was transferred to Clinton, a prison with a sordid history of guard violence and abuse. The prisoner was also demoted from commissary clerk to janitor.

In 1994, the prisoner sued the Attica warden, alleging that he was transferred in retaliation for filing the earlier suit. He sought damages, and an injunction requiring his return to the Attica Honor Block and restoration to his commissary job.

After the warden answered the complaint by denying that the transfer was retaliatory and invoking qualified immunity, the prisoner moved for appointment of counsel. The trial judge, relying on circuit policy, refused to appoint counsel until the prisoner's allegations "withstood a motion to dismiss ...

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 first holding a hearing.

John Lentworth, a Texas state prisoner, owned a radio that was seized by a guard who charged Lentworth with a disciplinary infraction. The radio was destroyed before the expiration of a seven-day "investigation" period mandated by prison administrative directive AD-03.72(c)(3). During the subsequent disciplinary hearing, Lentworth's property papers were not accepted by the hearing officer as evidence of ownership of the radio. Lentworth filed suit under the Texas Tort Claims Act. On its own initiative and without holding a hearing, the district court issued a general order dismissing the suit with prejudice as frivolous or malicious pursuant to Texas Civil Practice and Remedies Code § 14.003(a)(2). Lentworth appealed.

The court of appeals held that " (b)ecause the trial judge held no hearing, his basis for determining that appellant's causes of action were frivolous or malicious could not have been ...

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 and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer."

Reyes' parole agent received an anonymous tip that Reyes was using drugs. Upon searching a shed on Reyes' property, a small amount of methamphetamine was found. The trial court denied Reyes' motion to suppress and Reyes pleaded guilty. The court of appeals reversed, holding the search was unlawful and the drugs should have been suppressed. See: People v. Reyes, 59 Cal.Rptr. 826. The supreme court reversed.

The supreme court held that "when involuntary search conditions are properly imposed, reasonable suspicion is no longer a prerequisite to conducting a search of the subject's person or property. Such a search is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing."

The court held ...

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 plan (IEP) even if incarcerated in a security housing unit (SHU).

Marc Adams, a New Hampshire state prisoner, was denied an education while incarcerated. While in general population he requested and received an IEP under the IDEA based upon his learning disability. The IEP included 51/2 hours of daily instruction. Thereafter, he was reclassified to an SHU and denied an education.

Adams requested an administrative due process hearing pursuant to 20 U.S.C. § 1415(b)(2). The federal hearing officer concluded that the IDEA overrode security concerns and ordered NH to implement the original IEP in the SHU or allow Adams out of the SHU to attend classes. The state appealed to the federal district court. The court overturned the hearing officer's order and instructed the parties to draft a new IEP. Since Adams had completed high school by then, the new IEP included some college classes ...

$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' motion for summary judgment, holding that transsexualism constitutes a "serious medical condition" for Eighth amendment purposes. One defendant, the BOP's medical director, appealed claiming he was entitled to qualified immunity. The court of appeals for the District of Columbia circuit reversed, holding he was entitled to qualified immunity. The case illustrates the difficulty in suing BOP bureaucrats in the D.C. Circuit.

Farmer sent several letters to Wenneth Moritsugu, the BOP's medical director, seeking treatment for his transsexual condition. Morltsugu responded to one letter, stating the BOP would not provide any of the three treatments requested by Farmer: hormone therapy, castration and psychotherapy. Farmer did not request sexual reassignment surgery.

This appeal concerns only Moritsugu's liability for money damages in his individual capacity. The court notes that government officials are immune from suits for damages unless their conduct violates "clearly established" constitutional rights. Moritsugu conceded the facts ...

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. § 1983 suit can be filed over a disciplinary removal from work release, the action must first be invalidated by a court ruling.

Ronald Roucchio was in a New York prison system work release program in 1991. He violated the terms of his work release by being convicted of drunk driving. (He was not allowed to drink alcohol or drive while on work release.) Roucchio did not inform work release officials of his arrest and conviction. when they learned of it, Roucchio was immediately transferred to a state prison without a hearing. Six months later, Roucchio was given a hearing that recommended his removal from work release. Roucchio filed an Article 78 petition in Few York superior court challenging his removal from work release. The petition was dismissed. Roucchlo then filed a 42 U.S.C. § 1983 suit In federal court seeking only money damages. Roucchio did not challenge the outcome ...

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 a grievance required a trial.

Arthur Johnson, a Michigan state prisoner, was threatened by guard James Freeburn. Johnson complained about the threats and Freeburn later confronted Johnson and instructed a tower guard to shoot Johnson if he moved. Freeburn also infracted Johnson, causing him to spend six days in administrative segregation. Johnson filed suit under § 1983 claiming he was subjected to retaliation for exercising his First amendment right to petition the government for redress of grievances.

In the defendants' second motion for summary judgment the court refused to dismiss the claim related to Freeburn threatening to have Johnson shot. The court held that if true, Johnson's claim would entitle him to relief. The court held that the party's conflicting testimony required a trial to resolve.

The most significant part of the ruling deals with the court's lengthy analysis to Johnson's challenge to the segregation placement. The ...

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 private, overnight visits between prisoners and immediate family members. Washington is one of five states that still has such a program (the others are NY, CA, NM and MS). In 1995 Washington's EFV program came under attack by reactionary legislators. [ PLN , March, 1995]. This was compounded when Todd Hiivala, a prisoner at the Clallam Bay Correction Center, stabbed and almost killed his wife during an EFV. Hiivala's attack ended only after a guard shot him. [ PLN , Oct. 1995] In response to the Hiivala incident and legislation that would eliminate EFVs, the Washington Department of Corrections (DOC) enacted DOP Policy 590.100 on February 13, 1995, that significantly changed which prisoners could participate in the EFV program.

Among the changes the policy enacted were that it prohibited from EFV participation prisoners in close custody; that had a history of domestic violence and; at issue in this case, requiring that ...

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 Holsinger in 1982, was executed May 5, 1999. Vickers had torched Holsinger's cell after Holsinger made rude comments about his niece.

FL: On Jan. 15, 1999 the city of Longboat Key agreed to a $1.7 million settlement with the husband and son of Elizabeth Veltmann to end a lawsuit claiming that a botched investigation of her death led to the men's wrongful convictions on arson charges. Carl and Christopher Veltmann spent five years in prison before being acquitted at a second trial in Sept. 1996. They accused police and fire dept. officials of losing evidence, conducting warrantless searches, misleading a grand jury and concealing information that indicated Elizabeth's death was a suicide.

MO: Roy Roberts, 46, sentenced to death for participating in the murder of prison guard Tom Jackson during a 1983 riot was executed on March 10, 1999.

MS: Tunica Co. Sheriff John J. Pickett ...

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 against a guard named Germany. A month later three other guards questioned Lewis about a red mark on his neck. Lewis claimed it was a pimple, the jail doctor claimed it was a hickey. While Lewis denied having been attacked or being gay he was fired as a law library clerk as a result.

Lewis filed a 42 U.S.C. § 1983 suit claiming the three guards had conspired with Germany to have him fired from his job because of his previous grievance. The defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), arguing Lewis had failed to state a claim upon which relief could be granted.

The court dismissed Lewis's court access and equal protection claims but held Lewis had adequately stated a retaliation claim. The court noted that prisoners alleging retaliation for the exercise of constitutional rights must allege a chronology of ...

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 altered by the enactment of the Prison Litigation Reform Act.

This case involves a prisoner who was shot in the back by a cop after surrendering. The case proceeded to trial, where a jury rendered a verdict in the cop's favor. The prisoner's post-trial motions for judgment as a matter of law and for a new trial were denied, and the prisoner appealed.

Along with his notice of appeal, the prisoner filed a FRAP 24(a) motion with the trial court seeking leave to appeal IFP. However, the district court denied the prisoner's motion because it failed to articulate the grounds for the appeal, and because the court could not envision a good faith basis for the appeal.

Conversely, the court of appeals was quick to recognize that the prisoner's post-trial motions provided sufficient notice of the issues to be appealed. As a result, the trial ...

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 infracted for allegedly assaulting a guard. At a Tier III superintendent's hearing, he was found guilty and sentenced to two years in a Special Housing Unit (SHU). He was transferred to a unit housing disciplinary SHU prisoners that offered very few programs. He spent a total of 376 days in SHU. He appealed the disciplinary case to the Supreme Court of the State of New York, which annulled the the disciplinary disposition and ordered Lee's records expunged due to "conflicting evidence" and "denial of Lee's right to meaningful assistance with his defense."

Lee filed suit under 42 U.S.C. § 1983 alleging prison officials violated his due process rights by denying him an employee assistant at his hearing. The court granted Lee's motion for summary judgment against the hearing officer. Lee v. Coughlin, 902 F.Supp. 424 (S.D.N.Y. 1995). However, the court granted ...


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