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Prisoner Education Guide

Prison Legal News: August, 1999

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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 social control to ensure that dangerous classes of people, primarily the poor, are kept disorganized, disoriented and otherwise incapable of mounting any serious, organized challenge to the political and economic status quo.

A key component of this strategy is to first define crime so that the poor are overly included and the wealthy and powerful are largely excluded and weeded out of the arrest, prosecution, conviction and imprisonment cycle. For an excellent discussion of this process see The Rich Get Richer, The Poor Get Prison, by Jeffrey Reiman. [Available from PLN]

The flip, and equally important, side of this process lies in defining who is a victim and who isn't. At different levels some victims are defined as "worthy," others are not. Recent years have seen increased activity by victims' rights groups as well as legislatures who loudly claim concern for the victims of crime. While more questions than ...

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. Those people who think the justice system follows the creed of "equality under the law" will find Cole's book a very disturbing read that challenges their idealism with hard facts and harder truths. For Cole, in crafting No Equal Justice, has stripped away the criminal justice system's thin veneer of supposed fairness to expose its seamy underside rife with racial and socioeconomic in equalities.

Cole does not merely contend that discrimination, whether intentional or unintentional, plays an inherent role in the justice system. Rather, he asserts that "our criminal justice system affirmatively depends upon inequality" to maximize effective policing of the poor and marginalized while minimizing the impact on the rights of the privileged. Cole cites racial profiling for traffic stops, coercive requests for consent searches, "quality of life" policing (invariably in impoverished communities), and selective prosecution as examples of how the justice system imposes raceand class-based double ...

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 us where they could obtain some of the books we review as well as afford able books on prison and law related topics.

Part of PLN's mission has always been public education around prison conditions, political prisoners, policies of mass imprisonment, raising political awareness around criminal justice issues and assisting prisoners in asserting their legal, political and human rights. PLN's magazine format limits what we can do in all these areas. While a magazine format is fine for news and analysis of current events, many complex topics literally require book length exposition to make their point.

For the past several months I have been selecting titles that will be of interest and use to PLN readers. The process has been far from easy. Many excellent titles are out of print. Others are in print but the publishers are unwilling to sell them to PLN and we can't ...

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. (publications) so long as the publications are received directly from the publisher and prepaid from inmates' Prisoner Money on Deposit Account (PMOD)."

Rule 303 has been used to censor PLN when it has been sent as a free sample copy to Alabama prisoners; when PLN has provided a gift subscription to Alabama prisoners that have submitted articles which were published in PLN; when others have purchased gift subscriptions of PLN for Alabama prisoners and when PLN has sought to give complimentary subscriptions to prisoners on death row in that state.

Aven Cotton, an Alabama prisoner at Holman prison, is also a plaintiff in this lawsuit. Mr. Cotton's brother purchased a subscription to his hometown newspaper, The Washington County News. The subscription has been censored because it was not purchased from Mr. Cotton's PMOD.

PLN and Mr. Cotton claim that the PMOD purchase requirement of Rule 303 violates their ...

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, yet another example has reared its ugly head: my halfway house (scheduled to begin last February) was denied by the higher echelons of the Bureau of Prisons. I was, they deemed, a "danger to the community" due to the "nature of my offense" - i.e., armed protest against racist and colonialist acts of the u.s. government.

What makes it clear that this is a political decision is that nowadays almost no one from women's federal prison is denied a halfway house. The system is so desperately overcrowded that women convicted of all kinds of violent acts get to finish their sentences in halfway houses.

For me, the denial is not particularly significant. I am fortunate to have generous community and family support to help me adjust to life in "minimum" once I'm released. But what is important is what the denial indicates: the continuing intransigence of the ...

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 these was the "From Segregation to Incarceration" conference at Samford University in Birmingham, Alabama. Angela Davis was the featured speaker and a summary of the conference was written by syndicated columnist Rheta Grimsley Johnson and printed in newspapers nationwide.

The other was "Open To The Truth: A Conference Against the Prison- Industrial Complex" at Portland State University (PSU) in Portland, Oregon. Mumia Abu Jamal's image was highly visible at the conference since he has become the national symbol of the institutionalized injustice that pervades all aspects of the aptly named criminal justice system.

There was no speaker at PSU with the stature of Angela Davis, but there were more than two dozen workshops given by people from Oregon, Washington, and California covering many different areas of the law enforcement juggernaut that is making its presence felt in ever more aspects of American society One of these workshops that I ...

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 sources outside prison. PLN has reported on this issue extensively since the law was first enacted. Review past issues of PLN for further details.

To date, three separate court actions have challenged the constitutionality of the law. Wright v. Riveland is a federal class action suit. In 1997 district court judge Franklin Burgess of Tacoma held the statute was void under the supremacy clause of the constitution and the DOC could not seize federally protected funds, such as 42 U. S. C. § 1983 judgements and settlements, Native American funds, social security and military pensions. However, Burgess dismissed all of the plaintiffs' constitutional claims. That case is currently on appeal in the Ninth circuit. In Re Metcalf 92 Wn.App. 165 (Div. I, 1998) was a Personal Restraint Petition filed by a prisoner in state court. The appeals court upheld the statute.

Dean v. Lehman is the third case. It was ...

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% of all funds sent to prisoners from sources outside the prison system. Of the money seized, 20% goes to the DOC as a "cost of incarceration" fee; 10% goes into a savings account until the prisoner is released and 5% goes to a victims compensation fund. Every year since the law was enacted the legislature has amended it, primarily to respond to legal challenges to the law's inherent flaws. Nothing has been done to address the fundamental unfairness of the law itself. This legislative session was no exception. In December, 1998, Al O'Brien, the Democratic co-chair of the state House corrections committee met with a group of prisoners at the Washington State Reformatory in Monroe. A number of concerns were expressed by the prisoners, the primary one being RCW 72.09.480, on which I gave the groups' presentation. O'Brien promised to introduce legislation repealing the statute ...

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 to pay DOC debts Smith had previously incurred, even though this violated state law. Smith filed suit pro se, and the court issued a brief ruling granting judgment in his favor.

The court held:

"1. The Washington Department of Corrections is authorized by RCW 72.09.450(2) to collect debts owed them by inmates. However, they may so collect only when the inmate is not indigent pursuant to RCW 72.09.015(10) (less than $10 disposable income for 30 days.).

"2. Incoming inmate funds deducted before being deposited in the inmate's prison trust account pursuant to the mandatory 35% deductions in RCW 72.09.480 and RCW 72.09.111 (1)(a) are not disposable income for purposes of determining inmate indigency.

"3. When defendants took the $2 from plaintiff, he was indigent pursuant to RCW 72.09.015(10). Consequently, defendants took his money without lawful ...

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 Department of Corrections (DOC) and some county jails. The plaintiffs include the unimprisoned spouses, parents and siblings of prisoners, prisoners and a legal services group. The defendants are the state of Illinois, the Illinois counties of DuPage, Cook, and Kane and telephone companies AT&T, Invisions Telecom, MCI Telecommunications Corporation and Consolidated Communications Public Services, Inc.

The plaintiffs allege that the exclusive phone service agreements entered into by the phone company and prison/ jail defendants result in those who receive collect calls from prisoners being charged excessive rates and surcharges. The contracts result in huge kickbacks; up to 50% of gross billed revenues, to the jails and prison systems who enter into these exclusive use contracts. The complaint alleges that these exclusive contracts, and the resulting excessive costs, constitute an illegal monopoly and violate the Sherman Anti-Trust Act, 15 U.S.C. § 1, the Telecommunications Act of 1996, the First, Fifth and Fourteenth amendments to the US constitution, the Illinois state constitution and the Illinois Anti-Trust Act.

The plaintiff class consists of all families, lawyers and bill payer plaintiffs who are billed for phone calls initiated by prisoners confined to a jail or prison operated by the state and county defendants. The ...

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 shall:

(i) Identify itself, audibly and distinctly, to the consumer before connecting any interstate, domestic, in interexchange telephone call and disclose immediately hereafter how the consumer may obtain rate quotations, by dialing no more than two digits or remaining on the line, for the first minute of the call and for additional minutes, before providing further oral advice to the consumer how to proceed to make the call;

(2) Permits the consumer to terminate the telephone call at no charge before the call is connected; and

(3) Disclose immediately to the consumer, upon request and at no charge to the consumer

(i) The methods by which its rates or charges for the call will be collected; and

(ii) The methods by which con hints concerning such rates, charges or collection practices will be resolved.

(4) Inmate telephone services means any interstate telecommunication service initiated front an innate telephone that includes ...

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 issues on November, 10, 1997. The PSC held public hearings on April 7, 1998, and received briefings on the matter as well. The hearings were initiated after the PSC received numerous complaints about extremely high phone rates being charged to people who accepted collect calls from prisoners.

The PSC ordered.the phone companies to lower their rates when a: current contract between the Kentucky Deparfment of Corrections and the MCI phone company expires on November. 15; :1999. The PSC order states: "AT&T and any other carrier that has an operator surcharge on collect calls from inmate facilities that is a higher rate than its operator surcharge for any other collect call shall reduce its tariff rate to no more than that paid by the general public for automated calls."

The PSC noted that the Federal Communications Commission (FCC) has required that prison phone service providers identify themselves to the person being called and inform them on how to obtain the phone rate they will be charged if they accept the call. The information must be provided at no charge: [see this issue of PLN for the story on the FCC rule.] The PSC mandated that this requirement will go into effect in Kentucky on March 1, 1999.

The PSC also established two administrative proceedings, one to address the surcharge rates and to incorporate this into future jail and prison phone contracts in Kentucky. The other, to discuss fraud prevention measures and the obligation of phone servic providers to inform call recipients of call blocking and billing procedures. A full copy of the PSC's ruling is available from its website at: www.psc.state-ky-us. See: In the Matter of: Rates, Terms and Conditions for Inmate Telecommunication Services; Establishment of an operator Surcharge Rate for Collect Telephone Calls from Confinement Facilities; and Obligations of Inmate Phone Service Providers to Call Recipients Regarding Notice of Blocking and Billing Procedures. Administrative Case Numbers 368, 378 and 379, respectively.

To date, utility commissions in Nevada and Louisiana have capped the exorbitant rates charged to consumers who accept collect calls from prisoners. The utilities commission in Florida has ordered extensive ...

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 office. Lucas then called the female prisoner into the room and locked the door, then pulled off her pants and raped her.

Lucas was indicted and later pled guilty to one count of violating the civil rights of the female prisoner and one count of making a false official statement (lying to FBI investigators). The pre-sentence report concluded that the federal sentencing guidelines required a sentence of 72 months (which coincides with the 5-year and 1 year statutory maximums for two counts to which Lucas pled guilty). The District Court, however, applied a more lenient sentencing guideline (U. S. S. G. § 2A3.3) which is normally applied to consensual criminal abuse of a ward. Using that guideline, the District Court sentenced Lucas to two years (one year on each count).

The government appealed, and the Fifth Circuit Court of Appeals reversed and remanded the case for resentencing under a more ...

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 view it as a profit-making opportunity. Several companies have opened a niche market of building and operating for-profit prisons specially designed to house aged and medically infirm prisoners.

In September, 1998, Alabama-based Just Care, Inc. opened the Columbia Care Center in South Carolina. Advertising the facility as "an alternative resource for medically dependent inmates," the company hopes to attract state, county and federal prisoners to fill the center's 326 beds. Six months after it opened, however, this private medical prison housed just two incarcerated patients.

The Columbia Care Center, a renovated state mental hospital, offers sub-acute, skilled, intermediate and hospice care for the ill and disabled prisoner, according to Just Care's promotional literature, and claims savings of 20-50% through reduced overhead and flat-rate (e.g. "managed care") fees. Although the center provides extensive medical services, Just Care notes that "security comes first" at the facility, which is surrounded ...

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 enactment of the PLRA, when a prisoner in Philadelphia's Holmesburg Prison filed suit claiming various unconstitutional conditions of confinement. After several amended complaints, only his exposure to asbestos claim survived.

The district court eventually granted summary judgment in favor of the defendants on the premise that there was no evidence of injury related to exposure to asbestos. The appeals court affirmed 989 E 2d486 (1993).

On certiorari to the Supreme Court, the judgment was vacated and the case remanded "for further consideration in light of Helling v. McKinney. " 510 U. S. 1033 (1994). In Helling the Court held that "an unreasonable risk of serious damage to future health" states an Eight Amendment claim. 509 U. S. 25 (1993).

The appellate court remanded the case back to the trial court, but specifically noted that the Helling "Court did not address the availability of damages in such cases." 23 F.3d63 ...

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 conditions of confinement at the Nebraska State Penitentiary. After counsel was appointed to represent the prisoners, the parties reached an agreement during a settlement conference before a magistrate judge.

Thereafter, the prisoners' counsel drafted a proposed stipulated settlement that reserved the right to seek attorney fees under 42 U. S. C. section 1988. However, the government countered that attorney fees were not part of the original agreement.

Counsel for the prisoners next filed a motion to enforce the settlement and for attorney fees, but the trial court held that the oral settlement agreement, which was enforceable, did not include a provision for attorney fees.

On appeal the court characterized the issue as being whether the parties intended their settlement to be all inclusive, disposing of the entire range of issues between the parties. The panel noted that silence may constitute waiver of the right to claim attorney fees. Essentially, the ...

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 to its prisoners. PLN is mailed at third class non profit rates.

PLN and San Juan jail prisoner subscribers Ronald Cowles, Ray Moore, Troy Harris and Ray Warden, filed suit claiming that he bulk mail ban violates their right to free speech under the U. S. and Utah constitutions. The lack of any notice regarding the censorship also violates the plaintiffs right to due process of law.

The jail also bans "sexually explicit" materials. The prisoner plaintiffs are challenging that ban as violative of their free speech rights as well.

The parties are seeking declaratory and injunctive relief, money damages, attorney fees and costs. PLN has successfully litigated bulk mail bans against the Utah and Washington prison systems and has a suit pending on this issue against the Oregon DOC. The plaintiffs are represented in this action by Brian Bernard and James Harris of the Utah Legal Clinic. We will ...

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, be provided at state expense.

In November 1996, two Jewish Pennsylvania state prisoners sued prison officials in federal district court alleging violations of several constitutional rights because they were being denied akosher diet. Within days, the district court issued a temporary restraining order (TRO), which required prison officials to provide the prisoners with kosher food exclusively at every meal.

The prison responded to the TRO by furnishing a diet consisting of milk, unpeeled fruit, uncut raw vegetables and a liquid nutritional supplement called "Resource." However, the prison deducted the cost of the meals from the prisoners' accounts.

A magistrate judge subsequently issued a report & recommendation (R&R) counseling against the prison's cold kosher diet as a long-teen solution, but otherwise endorsing it during the pendancy of the litigation After the prison officials agreed to continue the cold kosher diet, the district judge dissolved the, TRO.

After discovery the parties ...

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 court suggested double costs and attorney fees as an appropriate sanction against the Attorney General.

This case began in 1992 when a Michigan state prisoner sustained injuries, while working with a floor buffer. The prisoner subsequently filed suit, claiming he was denied medical treatment because he had filed a previous lawsuit against a nurse at another Michigan prison. The prisoner asserted violations of his First and Eighth Amendment rights.

Thereafter, the defendants moved for dismissal/summaryjudgement. In support of their motion, they submitted affidavits claiming that the prisoner was treated. They also supplied medical records showing the same. In opposition the prisoner filed an affidavit asserting that the medical records were forgeries, and he flatly denied receiving any treatment.

A magistrate judge treated the defendants' motion as one for summary judgment and issued a "very short" report and recommendation (R&R). The magistrate apparently erroneously resolved material facts against 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 Colorado state prisoner filed a pro se § 1983 action against various state officials. An assortment of amendments followed appointment of counsel. A class, consisting of disabled prisoners, was then certified. The class claims alleged systematic violations of the RA, the ADA, and the Eighth and Fourteenth Amendments.

In 1996, the defendants moved for partial dismissal, arguing inter alia that (1) the RA and AD A do not apply to prisoners; (2) individuals may not be held liable under the RA and ADA; and (3) the individual defendants were entitled to qualified immunity.

On June 15, 1998, the Supreme Court decided Pennsylvania Department of Corrections v Yeskey, 118 S. Ct. 1952 (1998), which held that Title II of the ADA applies to state prisoners. The district court concluded that both the ADA and the RA apply to the plaintiff class and that Yeskey overruled prior Tenth Circuit precedent to the contrary ...

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 violations of their constitutional rights because the prison system failed to provide qualified interpreters for their medical consultations and disciplinary and parole hearings. In a well reasoned opinion, previously reported in PLN, the district court ruled in favor of the prisoners on their Eighth and Fifth Amendment claims. Franklin v. District of Columbia, 960 F.Supp, 394 (D.D.C. 1997) [PLN, March 1998]. The District appealed.

The district court held that, even though the prisoners had no right to parole per se, they had a right to a qualified interpreter during parole hearings, Before the arguments on appeal were heard, § 11231(x)(3) of the National Capitol Revitalization and Self-Government Improvement Act of 1997, Pub.L.No, 105-33, was enacted, changing the jurisdiction for misdemeanor and felony paroles from the D. C. Board of Paroles to the D. C. Superior Court and the U. S. Parole Commission, respectively. The ...

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 County Sheriff Joe King leased a portion of his jail to Capital Correctional Resources, Inc. (CCRI), agreeing to train CCRI personnel. At King's request, CCRI hired Ray Crawford, a former Texas prison warden, as the warden of its 512-bed wing, and two former Texas prison guards with known prior felony convictions for beating prisoners. Most of the guards Crawford hired had no prior experience and received no training.

Missouri contracted with CCRI and prisoners began arriving on September 16, 1996. They were boisterous and unruly. Crawford asked King for help. King told Crawford to tell the prisoners that if they didn't calm down they would face his "Ninja squad." Two days later, when Crawford repeated the request, King put his Emergency Response Team (ERT) and a police dog unit on standby without briefing them on the nature of their assignment. Hours later, CCRI guards smelled marijuana smoke in ...

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 they were not paroled on several occasions. While there is no constitutional right to parole, states can create a liberty Interest in parole by enacting statutes or rules. See: Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100 (1979) and Board of Pardons v Allen, 482 U.S. 369, 107 S.Ct. 2415 (1987).

Relying on Greenholtz, the Seventh circuit had previously held that Illinois had created a due process liberty interest in its parole release statute, 730 ILCS 513-35(C)(1998). See: Scotty. Illinois Parole and Pardon Board, 669 F.2d 1185 (7th Cir. 1982). At that time the Illinois supreme court had not ruled on this issue. In 1996 the Illinois supreme court, in Hanrahan v Williams, 174111.2d 268, 673 NE.2d 251 (Ill. 1996) held that the Illinois parole board had complete discretion in granting or denying ...

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 sentence reductions of up to one year to federal prisoners convicted of nonviolent offenses upon the successful completion of a drug treatment program. Section 3621(e)(2)(B).

Both prisoners were serving sentences for convictions of felon in possession of a firearm. Despite their participation in a drug abuse treatment program, both were notified by the BOP - for different reasons - that they were ineligible for early release.

Joseph Byrd was deemed to be ineligible when the BOP concluded that a prior Washington state assault conviction was the equivalent to the excludable offense of aggravated assault under the FBI Violent Crime Index. The BOP initially notified Paul. Bowen that he was eligible for early release. Several months later, however, the BOP amended its rules and advised Bowen that under the amendment he was no longer eligible.

The court agreed with Byrd that the BOP erred in ignoring its own rules by ...

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 treatment caused painful blisters to form in his throat and mouth. The prison doctor prescribed pain medication to Ralston to offset the side effects of the radiation treatment.

A sergeant McGovern refused to provide Ralston with the prescribed pain medication even after Ralston explained he could not swallow and was spitting blood. Ralston filed suit under 42 U.S. C. § 1983, claiming McGovern violated his Eighth amendment rights. The district court dismissed the suit, finding that while McGovern had shown deliberate indifference to Ralston's medical needs, Ralston's mouth and throat pain was not a sufficiently serious medical problem that the refusal to alleviate his pain amounted to cruel and unusual punishment. The court of appeals reversed and remanded.

In a brief ruling, the appeals court notes that "not every refusal of medical treatment constitutes cruel and unusual punishment." Each case will turn on the particular medical problem afflicting ...

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, he slipped and fell in the shower, resulting in injury. Davis was treated with Tylenol and Motrin

Davis's written requests for medical treatment were apparently ignored by the guards and no incident reports were processed. On separate occasions a jail nurse would make disparaging comments, while examining Davis, and she accused him of feigning injury.

Even though he was eventually examined by a physician at a local hospital, and diagnosed with mild soft tissue trauma to the head and neck, Davis sued the hospital, the jail superintendent, two guards, and the nurse. The trial court granted summary judgment to all defendants.

The court of appeals affirmed the judgment for the superintendent and the hospital, but reversed the judgment in favor of the remaining defendants. The court determined that a reasonable "jury could infer an intent to punish Davis based on these defendants responses to his request for medical treatment ...

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 the new county jail. Later, a women's CEU was added. The CEU is a voluntary 120-day program, administered by Sheriff's Department personnel, in which volunteers from the community teach fundamentalist Christian principles. The new jail facility is in much better shape, less violent, and designed for better control than the old jail. Former county jail prisoners and a county resident filed suit in state court challenging the CEU on state and federal Equal Protection, Establishment Clause, and Free Exercise grounds.

Reasoning that -- even though the prisoner plaintiffs are no longer in the jail -- the controversy is "capable of repetition, yet evading review, the court held that the controversy was not moot pursuant to Murphy v. Hunt, 455 U. S. 478 (1982). However, the county resident had no standing to sue. Additionally, prisoners currently housed in the CEU, who sought to intervene to continue the CEU, could not do ...

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 the warning label "Parental Advisory-Explicit Lyrics." The district court ruled in Herlein's favor, issuing a declaratory judgment that the policy violated Herlein's First amendment rights and awarding him nominal damages. The court of appeals reversed.

The appeals court assumed, without deciding, that prisoners retain a constitutional right to possess music tapes. The prison official defendants claimed that prison security was somehow threatened if "gang members" (prisonspeak for blacks) and sex offenders are exposed to music with "explicit lyrics." The district court had found that the defendants failed to demonstrate a rational connection between banning tapes with warning labels and prison security.

The appeals court simply accepted the bald assertions made by the defendants. The court stated it did not believe it was irrational to beli eve that music with violent or sexually explicit lyrics might present a security risk in prison. "Mr. Herlein further argues, however, that the ...

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 district court dismissed the suit as frivolous, finding that venue in New York was improper. In a brief ruling, the appeals court vacated and remanded.

While this is not a prison suit, the statute at issue, 28 U.S.C. § 1915(e)(2)(B) applies to all IFP litigation. The appeals court held "... we conclude that a pro se plaintiff who is proceeding in forma pauperis should be afforded the same opportunity as a pro se fee paid plaintiff to amend his complaint prior to its dismissal for failure to state a claim, unless the court can rule out any possibility, however unlikely it may be, that an amended complaint would succeed in stating a claim. Because the district court did not give this pro se litigant an opportunity to amend his complaint, and because we cannot rule out the possibility that such an amendment will result in a claim ...

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 to the unions political power is its ability to give money to politicians. In 1998 the CCPOA made $4. 5 million in political donations. The union operates four active campaign committees. The CCPOA Political Action Committee gave $2.9 million to state politicians in 1998. The CCPOA Issues Committee spent $733,000. The CCPOA Local Political Action Committee donated $150,00 to local candidates running for sheriff, district attorney and supervisor across California. The CCPOA Independent Expenditure Committee spent 41 million on television commercials for current California governor Gray Davis while he was running for that office.

The single biggest beneficiary of the union's political donations in 1998 was governor Gray Davis. The CCPOA gave Davis more than $2 million in financial support through advertising, phone banks and polling done on his behalf in the 1998 governor's campaign. The union also kicked in $100,000 for Davis's ...

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 (ED PA 1998) which terminated a series of consent decrees governing conditions in Pennsylvania state prisons.

In the June, 1997, issue of PLN we reported Ben jamin v. Jacobson, 935 F. Supp. 332 (SD NY 1996) which terminated a series of consent decrees governing conditions in New York City's Rikers Island jail complex.

In 1996 Congress enacted 18 U.S.C. § 3626(b)(2) which allows prison and jail officials to immediately terminate consent decrees they had previously entered into. To date, the 1st, 4th, 6th, 8th, 9th and 11th circuits have upheld the con stitutionality of § 3626(b)(2). The Second and Third circuits have now joined the other circuits in upholding the constitutionality of this law. The Second circuit vacated its prior panel ruling at Benjamin v. Jacobson, 124 F.3d 162 (2nd Cir. 1997) and affirmed the district court's termination order.

Both circuit courts held ...

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 Nelson filed a civil rights suits claiming they had been denied access to the courts. The district court dismissed the suit and assessed $41 in costs, to be divided equally, against Talley-Bey and Nelson. The court of appeals affirmed in all respects.

In Weaver v Toombs, 948 F. 2d 1004 (6th Cir. 1991)[PLN, March, 1992] the Sixth circuit held that courts have discretion in assessing costs against unsuccessful In Forma Pauperis (IFP) prisoner litigants. If, after assessing costs, courts were then required to determine that the prisoner was actually able to pay the costs assessed. The PLRA superseded the procedure in Weaver. See: Hampton a Hobbs, 106 F 3d 1281(6th Cir. 1997)[PLN July, 1997).

"When judgement is entered against a prisoner and costs against the prisoner are assessed, 28 U.S. C. § 1915(f)(2)(A) now requires that the prisoner pay the costs either in full ...

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 a halfway house. Based on the infraction, White was sent to a state prison and spent 16 days in segregation before a disciplinary hearing was held. White claimed he was coerced into pleading guilty to the charges and being sanctioned with the loss of 180 days of good time credits.

White filed suit under 42 U.S. C. § 1983 seeking money damages, claiming the coerced guilty plea and ensuing segregation and loss of good time credits violated his due process rights. The district court held that White was challenging the length of his confinement and the action had to be brought as a habeas petition under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994) and Edwards v. Balisok 520 U. S. 641, 117 S.Ct. 1584 (1997). The court stayed the section 1983 action pending exhaustion of White's state court habeas remedies. After White was ...

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 while he was imprisoned. Greig had been released from prison when he filed suit.

The district court dismissed the suit under 42 U. S. C. 1997e(a), which requires exhaustion of administrative remedies before prisoners file suit in federal court, because Greig had not exhausted his administrative remedies.

In a brief ruling, the court of appeals for the Second circuit vacated and remanded. The court held "that litigants like Greig- who file prison condition actions after release from confinement are no longer 'prisoners' for purposes of § 1997e(a) and, therefore, need not satisfy the exhaustion requirements of this pro vision." See: Greig v Goord, 169 F. 3d 165 (2nd Cir. 1999).

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, filed suit under 42 U.S.C. § 1983. The defendants filed a motion to dismiss under § 1997e(a) claiming Wisconsin prisoners have to file a notice of claim under Wis. Stat. § 893.82 before suing in federal court for damages. The court rejected this argument, dryly observing the defendants had not cited any cases to support their novel position.

The court observed that the notice of claim procedure is to settle potential claims against the state, it does not provide a remedy in the administrative exhaustion context. See: Bias v. Endicott, 31 F. Supp. 2d 1131 (ED WI 1999).

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 prison's drinking water, that the defendant prison officials were aware of the lead contamination and refused to do anything about it. Lead is a dangerous contaminant which builds up in the human body and can be fatal. It is frequently found in the water pipes of prisons built before 1973. [See PLN, December, 1993, "Lead Poisoning."]

The district court dismissed Robinson's suit, holding it was barred under 42 U. S. C. § 1997e(e). Section 1997e(e) states: "No federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." The appeals court reversed and remanded.

"Section 1997e(e), as its wording makes clear, is applicable only to claims for mental or emotional injury. It has no application to a claim involving another type of injury ...

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 happened in this case.

Joseph Hall, a federal prisoner, filed suit and was denied in forma pauperis (IFP) status when the district court held he had sufficient funds in his prison trust account to prepay the filing fee in its entirety. Hall appealed but did not pay the filing fee or seek IFP status for the appeal. The appeals court dismissed the appeal and noted that under Newlin v Helman, 123 F 3d 429 (7th Cir. 1997) [PLN, June, 1998] Hall was liable for the appellate court filing fee.

The district court issued an order for warden Fanello of the U. S. Penitentiary at Allenwood, Pennsylvania, to remit $105 from Hall's trust account to the court to pay the appellate court filing fee. "Yet the warden refused to comply with this order, informing the court that Hall had not authorized the disbursement. Faced with conflicting directives from a federal ...

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. Hyche then filed a notice of appeal and sought to proceed In Forma Pauperis (IFP). The case was remanded twice by the appeals court. First, because the district court had failed to review Hyche's claims before granting IFP status on appeal and a second time for finding the appealed issues to be frivolous.

In its third ruling vacating and remanding this case, the appeals court held the lower court erred by finding the appeal was not taken in good faith and then granting Hyche IFP status. "...If the district judge certifies that the appeal has not been taken in good faith, then the judge must not invoke the periodic payment system established by § 1915(b). If the appeal is not in good faith, and the litigant therefore is not entitled to proceed in forma pauperis, then the docket and filing fees must be prepaid in full. An appellant is ...

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 submerged themselves in a cold water tank. On April 29 male prisoners ended the protest. Women prisoners continued the strike and criticized the male prisoners for capitulating with no real gains.

Brazil: On February 15, 1999, 48 women prisoners set bonfires and took six hostages at a Sao Paulo jail to protest severe overcrowding. The rebellion ended when the prisoners released the hostages and police fired warning shots. On the same day, at another Sao Paulo jail, 106 male prisoners set mattresses on fire to protest crowding. Police stormed the jail to regain control. No injuries were reported in either incident. Both jails were designed to hold 16 prisoners.

CA: In early April, 1999, San Mateo county jail guard Willard Kelley, 56, was charged with two felonies and a misdemeanor stemming from bringing alcohol into the jail and "having sex" with a 32-yearold female prisoner.

CA: On March 29, 1999 ...

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 prisoners in the Lauderdale county Jail for more than 30 days. The injunction was designed to relieve overcrowding and related health problems. On two occasions, in 1991 and 1993, Alabama was found in contempt for violating the injunction.

In 1997 the Alabama Department of Corrections (DOC) moved to terminate the injunction under 18 U. S. C. § 3626(b)(2) of the Prison Litigation Reform Act (PLRA). (Readers should note that to date most of the PLRA litigation relating to the termination of prospective relief has dealt with the PLRA's consent decree termination provisions, not its injunction termination provision. In this case the court does not mention the di stinction.) The district court denied the motion, holding that the injunction remained necessary to correct a "current and ongoing" violation of federal rights.

The court of appeals reversed and remanded. The court did not decide what exactly constitutes a "current and ...


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