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Prison Legal News: August, 1999

Issue PDF
Volume 10, Number 8

In this issue:

  1. "Victims' Rights" as a Stalkinghorse for State Repression (p 1)
  2. No Equal Justice: Race and Class in the American Criminal Justice System, by David Cole (Review) (p 4)
  3. From the Editor (p 4)
  4. PLN Sues Alabama DOC Over Gift Subscription Ban (p 5)
  5. Notes from the Unrepenitentiary (p 6)
  6. Prison-Industrial Complex Conferences Are Spreading the Word (p 7)
  7. Kentucky Jail Settles Strip Search Suit for $11.5 Million (p 7)
  8. Washington 35% Law Struck Down by State Court (p 8)
  9. Washington Legislature Amends 35% Law, Again (p 8)
  10. Washington DOC Illegally Penalizes Indigents (p 9)
  11. Class Action Suits Challenge Rip-Off Prison and Jail Phone Rates (p 10)
  12. FCC Requires Rate Disclosure for Prison Phones (p 10)
  13. Kentucky Utilities Commission Reduces Prison and Jail Phone Rates (p 11)
  14. Warden Used "Force" in Sexual Assault (p 12)
  15. Private Prison Operators Enter Medical Care Market (p 12)
  16. Jury Awards Beaten Texas Prisoner $250,000 (p 13)
  17. Physical Injury Rule Applied to Pre-PLRA Asbestos Exposure (p 13)
  18. CCA Settles Youngstown Suit for $2.48 Million (p 14)
  19. Attorney Fees Must Be Expressly Reserved (p 14)
  20. PLN Sues Utah Jail over "Bulk Mail" Ban (p 15)
  21. First Amendment Guarantees Kosher Meals (p 15)
  22. Frivolous Qualified Immunity Appeals Warrant Sanctions (p 16)
  23. Individual Capacity Claims Not Applicable to RA and ADA (p 16)
  24. Franklin Reversed; DC Prisoners Have No Right to Qualified Interpreters (p 17)
  25. No Qualified Immunity for Texas Sheriff and CCRI Guards Who Abused Missouri Prisoners (p 18)
  26. No Liberty Interest in Illinois Parole Laws (p 19)
  27. BOP Erred in Denying Early Release Eligibility (p 20)
  28. Denial of Pain Medication Violates Eighth Amendment (p 20)
  29. Motive Question Precludes Summary Judgment in Medical Suit (p 21)
  30. Tarrant County Jail's Christian Education Unit May Violate Texas and Federal Establishment Clauses (p 21)
  31. Iowa Ban on Tapes with Parental Warning Upheld (p 22)
  32. AA Probation Requirement Continues to Violate Establishment Clause (p 22)
  33. Pro Se IFP Litigant Entitled to Amend Suit in Second Circuit (p 23)
  34. California Guard Union Doles Out Millions to Politicians (p 23)
  35. PLRA Consent Decree Termination Provision Upheld by 2nd and 3rd Circuits (p 24)
  36. Costs Imposed Regardless of Ability to Pay (p 24)
  37. PLRA Attorney Fee Cap Applies in $65,000 Beating Case (p 25)
  38. Heck Doesn't Apply After Release from Prison (p 25)
  39. No Administrative Exhaustion Requirement for Ex-Prisoners (p 26)
  40. PLRA Doesn't Require Notice of Claim for Exhaustion (p 26)
  41. Contaminated Water Claim Not Barred by PLRA Physical Injury Rule (p 26)
  42. BOP Warden Held in Contempt for Failure to Forward PLRA Filing Fee (p 27)
  43. Seventh Circuit Clarifies Good Faith Appeal Standard, Again (p 27)
  44. News in Brief (p 28)
  45. Alabama Jail Injuction Dissolved (p 29)

"Victims' Rights" as a Stalkinghorse for State Repression

"Victims' Rights" As A Stalkinghorse for State Repression

By Paul Wight

How the ruling class defines and punishes "crime" goes a long way towards demonstrating whose class interests are being served by the criminal justice system. The criminal justice system in the United States is used as a tool of ...

No Equal Justice: Race and Class in the American Criminal Justice System, by David Cole (Review)

by David Cole, The New Press 218 pages, $25.00 hardcover.

Review by A. Friedmann


Those people who have long believed that this nation's criminal justice system is steeped in systemic racism and class-based bias will find vindication in No Equal Justice by Georgetown University law professor David Cole ...

From the Editor

Starting with last month's issue of PLN we have expanded the number of books we offer for direct sale. This month we have added some more titles. As funds become available we hope to expand our list of titles further. For years PLN has received inquiries from readers asking ...

PLN Sues Alabama DOC Over Gift Subscription Ban

0n May 13, 1999, Prison Legal News (PLN) filed suit in the U. S. District Court for the middle district of Alabama against the Alabama Department of Corrections (DOC). The Alabama DOC has Administrative Regulation 303 which states: "Inmates may receive a limited number of publications, books, magazines, newspapers etc ...

Notes from the Unrepenitentiary

Over the past 14+ years of my incarceration, I've been asked repeatedly to describe how I'm treated differently from other prisoners because I'm a political prisoner. It's always been easy to answer, as examples abound. Now, as I approach my mandatory release date of August 6 ...

Prison-Industrial Complex Conferences Are Spreading the Word

Awareness of the devastatingly negative impact of the politically driven criminal justice system on American society continues to grow. On the week-end of April 10th, there were two conferences in the U. S. dedicated to exposing its normally hidden aspects to the light of publicity and public scrutiny.

One of ...

Kentucky Jail Settles Strip Search Suit for $11.5 Million

On December 23, 1998, the Jefferson county jail in Louisville, Kentucky, settled a class action suit by agreeing to pay $11.5 million to thousands of people who were strip searched after being arrested for minor offenses. The lawsuit and settlement covers everyone arrested and strip searched at tire jail ...

Washington 35% Law Struck Down by State Court

0n May 17, 1999, King County (Seattle) superior court judge Glenna Hall held that RCW 72.09.480 was unconstitutional. In 1995 the Washington legislature enacted RCW 72.09.480 which mandates the seizure by the Department of Corrections (DOC) of 35% of all funds sent in to prisoners from ...

Washington Legislature Amends 35% Law, Again

RCW 72.09:480 was enacted in 1995 as part of House Bill (FIB) 2410, a massive prisoner bashing bill that unanimously passed the legislature that year. RCW 72.09.480 was slipped into HB 2010 with no public hearings, debate or notice. The law mandates the seizure of 35 ...

Washington DOC Illegally Penalizes Indigents

On December 24, 1998, Thurston county superior court judge Daniel Bershauer held that Washington prison officials had unlawfully converted an indigent prisoner's funds.

Roger Smith, a prisoner at the Airway Heights Correctional Center (AHCC), was indigent when he was sent $10. AHCC officials then seized $2 of that money ...

Class Action Suits Challenge Rip-Off Prison and Jail Phone Rates

Suit Filed in Illinois

On May 5, 1999, a class action suit was filed by Illinois consumers who receive collect calls from Illinois state and county jail prisoners alleging that they are forced to pay exorbitant phone rates as a result of an illegal conspiracy between phone companies, the Illinois ...

FCC Requires Rate Disclosure for Prison Phones

The Federal Communications Commission, (FCC) has issued regulations mandating the disclosure rates consumers will actually pay for phone calls received from prisoners. Effective October 1, 1999, 47 C.F.R. § 67.710 "Operator Services for Prison Inmate Phones", states in its entirety:

"(a) Each provider of inmate operator services services ...

Kentucky Utilities Commission Reduces Prison and Jail Phone Rates

On January 10, 1999, the Kentucky Public Service Commission (PSC) issued an order, requiring: prison and Jail phone service providers to reduce the rates they charge for prison and Jail collect calls to the tariff charged for non prison and jail collect calls.

The PSC initiated hearings into prison payphone ...

Warden Used "Force" in Sexual Assault

Warden Used "Force" in Sexual Assault

Walter Lucas was Acting Warden of the River County Jail in River City, Mississippi, when he asked a male prisoner to act as lookout so that he could take care of some "business" with a female prisoner in a secluded room adjacent to his ...

Private Prison Operators Enter Medical Care Market

As criminals receive longer sentences and serve a greater portion of them under threestrikes, truth-in-sentencing and mandatory minimum laws, the number of elderly prisoners with health problems has increased accordingly. Some consider this trend to be the result of a misplaced emphasis on incarceration as a solution to crime. Others ...

Jury Awards Beaten Texas Prisoner $250,000

On December 15 1998, a federal jury in San Antonio, Texas, awarded Texas state prisoner Robert Sikes $250,000 in damages for a beating administered by prison guards. In 1995 Sikes was imprisoned in a Karnes county state prison. During a dispute with a female guard over a broken cell ...

Physical Injury Rule Applied to Pre-PLRA Asbestos Exposure

The court of appeals for the Third Circuit held that a prisoner does not have a cause of action, under 42 U. S. C. section 1983, for damages for emotional distress caused by exposure to asbestos, without proof of physical injury.

This case began in 1986, a decade before the ...

CCA Settles Youngstown Suit for $2.48 Million

by Alex Friedmann

On March 1, 1999 the Corrections Corp. of America agreed to pay $1.65 million plus $803,000 in attorney fees and expenses to settle a class-action lawsuit filed by Washington, D.C. prisoners at the company's Northeast Ohio Corr. Center in Youngstown.

The suit, brought ...

Attorney Fees Must Be Expressly Reserved

The court of appeals for the Eighth Circuit held that a failure to expressly raise the issue of attorney fees during settlement negotiations waives any subsequent claim thereto.

This case involves several prisoners, who sued the director of the Nebraska DOC, under 42 U. S.C. section 1983, alleging unconstitutional ...

PLN Sues Utah Jail over "Bulk Mail" Ban

PLN Sues Utah Jail over "Bulk Mail" Ban

0n March 30, 1999, PLN sued the San Juan county jail in Utah over its ban on third class mail (AKA "bulk mail"). The jail has a policy under which it refuses to deliver mail paid for at third class postage rates ...

First Amendment Guarantees Kosher Meals

The court of appeals for the Third 1 Circuit held that under the First Amendment, prison officials must provide Jewish prisoners with a diet sufficient to sustain them in good health without violating kosher laws. However, the food need not be hot, nor even appetizing. The special diet must, nevertheless ...

Frivolous Qualified Immunity Appeals Warrant Sanctions

The court of appeals for the Sixth Circuit that it lacked jurisdiction over an interlocutory appeal from an order denying qualified immunity because the prison medical personnel defendants would not concede to view the facts in a light most favorable to the prisoner. Because such appeals are inherently frivolous, the ...

Individual Capacity Claims Not Applicable to RA and ADA

Afederal district court in Colorado held that individual defendants in their individual capacities are not liable under the Rehabilitation Act (RA) or the Americans with Disabilities Act (ADA). Additionally, these defendants were held to be entitled to qualified immunity from § 1983 claims under the Acts.

In 1992, Jessie Montez, a ...

Franklin Reversed; DC Prisoners Have No Right to Qualified Interpreters

The court of appeals for the D. C. Circuit held that Spanish-speaking prisoners have no right to qualified interpreters at parole hearings, disciplinary hearings, or for medical and mental health treatment.

Spanish-speaking prisoners in the District of Columbia (District) prison system filed suit under 42 U.S. C. § 1983, alleging ...

No Qualified Immunity for Texas Sheriff and CCRI Guards Who Abused Missouri Prisoners

by Matthew Clarke

Afederal district court in Texas has ruled that prisoners who were kicked, bitten by dogs, shocked, and subjected to a public strip and body cavity search by untrained, improperly supervised private guards during a shakedown presented sufficient evidence to defeat the guards' motion for summary judgment.

Brazoria ...

No Liberty Interest in Illinois Parole Laws

The court of appeals for the Seventh circuit held that Illinois prisoners have no liberty interest in parole. In doing so, the court overruled a prior ruling that had held otherwise.

Two Illinois state prisoners filed a habeas corpus petition in federal court contending they were denied due process when ...

BOP Erred in Denying Early Release Eligibility

Afederal disctrict court in Oregon granted habeas corpus relief to two federal prisoners who challenged the Bureau of Prisons' (BOP) denial of early release eligibility.

In 1994 Congress enacted the Violent Crime Control and Law Enforcement Act which amended 18 U. S. C. § 3621 to allow the BOP to grant ...

Denial of Pain Medication Violates Eighth Amendment

The court of appeals for the Seventh circuit held that a guard's denial of prescribed pain medication to a prisoner undergoing cancer treatment violates the Eighth Amendment's ban on cruel and unusual punishment. James Ralston, a Wisconsin state prisoner, was given radiation treatment for Hodgkin's disease. The ...

Motive Question Precludes Summary Judgment in Medical Suit

The U. S. court of appeals for the Eighth Circuit held that the existence of a factual dispute as to whether jail guards and medical staff intended to punish a detainee for requesting medical treatment, precluded summary judgment.

While Ronald Davis was confined to the St. Louis (MO) City Jail ...

Tarrant County Jail's Christian Education Unit May Violate Texas and Federal Establishment Clauses

In a detailed and well-reasoned opinion, a Texas state appellate court held that the establishment of a Christian Education Unit (CEU) in a county jail may violate the Establishment Clauses in the Texas and federal constitutions.

In 1992, the Tarrant County Sheriff set aside a men's CEU pod at ...

Iowa Ban on Tapes with Parental Warning Upheld

By Paul Wight

The court of appeals for the Eighth circuit held that an Iowa prison's ban on cassette tapes with parental advisory notices due to "explicit lyrics" was permissible. Michael Herlein, a former Iowa state prisoner, filed suit challenging a prison policy that banned all music tapes bearing ...

AA Probation Requirement Continues to Violate Establishment Clause

In a long running case, the court of appeals for the Second circuit held that requiring an atheist to attend Alcoholics Anonymous (AA) meetings as a probation condition, violates the establishment clause of the First amendment to the U.S. constitution. Robert Warner, an atheist, was required to attend AA ...

Pro Se IFP Litigant Entitled to Amend Suit in Second Circuit

The court of appeals for the Second circuit held that district courts must grant leave to indigent pro se litigants to amend their complaints before the suit is dismissed. The suit in this case was filed by a non prisoner pro se litigant with in forma pauperis (IFP) status. The ...

California Guard Union Doles Out Millions to Politicians

The California Correctional Peace Officers Association (CCPOA) is the union which represents California's 28,000 prison guards. The union is also one of the most powerful political players in state politics. The union supports mandatory sentencing, including "three strikes" laws; increased prison building and harsher prison conditions.

The key ...

PLRA Consent Decree Termination Provision Upheld by 2nd and 3rd Circuits

The courts of appeal for the Second and Third circuits have upheld the consent decree termination provisions of the Prison Litigation Reform Act (PLRA) against a wide array of constitutional challenges. In the July, 1998, issue of PLN we reported Imprisoned Citizens Union v. Sharp, 11 F. Supp.2d 586 ...

Costs Imposed Regardless of Ability to Pay

The court of appeals for the Sixth circuit held that the Prison Litigation Reform Act (PLRA) allows courts to impose costs on losing prisoner litigants regardless of their ability to pay. The court held that the PLRA overruled prior circuit precedent to the contrary.

Michigan prisoners Randolph TalleyBey and Robert ...

PLRA Attorney Fee Cap Applies in $65,000 Beating Case

Afederal district court in Texas has ruled that the attorney fee cap in the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, applies to work performed by attorneys appointed after the enactment of the PLRA to represent pro se prisoners.

Reginald Roberson, a Texas state prisoner, filed suit ...

Heck Doesn't Apply After Release from Prison

A federal district court in Louisiana held that prisoners released from prison need not have a court ruling in their favor before challenging prison disciplinary hearings via 42 U. S. C. § 1983. Jimmy White, a Louisiana state prisoner, was infracted for intoxication and attempted escape while serving a sentence in ...

No Administrative Exhaustion Requirement for Ex-Prisoners

The court of appeals for the Second circuit held that former prisoners who sue over prison or jail conditions of confinement are not required to exhaust their administrative remedies before filing suit in federal court. James Greig, a New York state parolee, filed suit claiming his rights had been violated ...

PLRA Doesn't Require Notice of Claim for Exhaustion

Afederal district court in Wisconsin held that 42 U. S.C. 1997e(a) of the Prison Litigation Reform Act (PLRA) does not require prisoners to file a notice of claim with the state attorney general's office in order to exhaust their administrative remedies.

Jamie Blas, a Wisconsin state prisoner ...

Contaminated Water Claim Not Barred by PLRA Physical Injury Rule

The court of appeals for the Seventh circuit held that a prisoner's lawsuit over a prison's lead contaminated water was wrongfully dismissed under the Prison Litigation Reform Act's (PLRA) physical injury requirement. Floyd Robinson, an Illinois state prisoner, filed a lawsuit claiming there was lead in the ...

BOP Warden Held in Contempt for Failure to Forward PLRA Filing Fee

The court of appeals for the Seventh circuit held that prison wardens are responsible for ensuring Prison Litigation Reform Act (PLRA) filing fees are transmitted from the trust accounts of prisoners to the courts. Wardens who fail to forward PLRA filing fees can be held in contempt of court, as ...

Seventh Circuit Clarifies Good Faith Appeal Standard, Again

In its third ruling on the topic in recent months, the court of appeals for the Seventh circuit attempted to delineate what constitutes a "good faith" appeal under the Prison Litigation Reform Act (PLRA).

Aaron Hyche, an Illinois state prisoner, filed a lawsuit which was dismissed by the district court ...

News in Brief

Bolivia: On April 27, 1999, more than 1,500 prisoners in seven prisons went on hunger-strike to protest overcrowding, delays in case processing and the denial of good time credits. At least five prisoners sewed their lips shut, 19 tied themselves to prison bars in a mock crucifixion and four ...

Alabama Jail Injuction Dissolved

The court of appeals for the Eleventh circuit held that a district court had erred in refusing to dissolve an injunction designed to relieve jail overcrowding. In 1982 an injunction was entered by a federal district court which prohibited the state of Alabama and Lauderdale county from housing convicted state ...