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Prisoner Education Guide

Prison Legal News: September, 1999

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Volume 10, Number 9

In this issue:

  1. Wreaking Medical Mayhem in Washington Prisons (p 1)
  2. A Foul Trend Emerges (p 4)
  3. Is Health Care Too Much to Ask For? (p 5)
  4. Ex-Prisoner Gets $850,000 for Broken Neck (p 7)
  5. Arkansas Department of Corruption Revealed (p 7)
  6. County Jail Political Shenanigans, Corruption Revealed (p 7)
  7. From the Editor (p 8)
  8. Crime and Punishment in America, by Elliot Currie (Review) (p 8)
  9. The Way the Wind Blew: A History of the Weather Underground, by Ron Jacobs (Review) (p 9)
  10. Texas Prison Warehouses (Letter) (p 9)
  11. Beaten Connecticut Jail Detainee Awarded $2.07 Million (p 10)
  12. Missouri Proposes $2.2 Million Settlement (p 11)
  13. New Mexico Riot Rooted in Religious Rights (p 11)
  14. Rikers Island Detainee Shot (p 12)
  15. Tennessee Supreme Court Upholds Private Prison Disciplinary Procedures (p 12)
  16. Prison Realty Board Member Settles Ethics Complaints (p 12)
  17. West Virginia DOC Commissioner Resigns After Beating Wife (p 13)
  18. Pro Se Pennsylvania Prisoner Awarded $100,000 in Guard Attack (p 13)
  19. Texas Jail Whistleblower Awarded $3.3 Million (p 14)
  20. Washington 35% Spousal Suit Update (p 14)
  21. Arizona DOC Settles Kosher Diet Suit (p 14)
  22. US Supreme Court Holds Media Ride-Alongs Unconstitutional (p 15)
  23. Transsexual Awarded $755,000 in Jail Strip Search (p 15)
  24. PLRA Physical Injury Requirement Constitutional (p 16)
  25. Tobacco Smoke Exposure Requires Trial (p 17)
  26. DC Circuit Lifts Injunction on BOP Porn Ban (p 17)
  27. De Novo Review for § 1915A Dismissals (p 18)
  28. Third Circuit Holds 28 USC § 1915(g) Does Not Apply Retroactively (p 18)
  29. Three Strikes Upheld by Ninth Circuit (p 18)
  30. Administrative Exhaustion Required in all Cases (p 18)
  31. State Court Dismissals Don't Count as Strikes (p 18)
  32. Automatic Stay Provision Unconstitutional (p 18)
  33. Total Administrative Exhaustion Not Required (p 18)
  34. No Exhaustion Required in Wisconsin When Only Money Damages Are Sought (p 18)
  35. No Written Screening or Administrative Exhaustion Required (p 19)
  36. Physical Injury Requirement Doesn't Apply to Court Access Claims (p 19)
  37. Fact Issue of Physical Injury Precludes Summary Judgment (p 19)
  38. Wright Dismissed on Remand (p 20)
  39. Private Prison Denied Wiretap Exception (p 20)
  40. No Court Access Right to Litigate Civil Forfeiture (p 21)
  41. Prisoners Have First Amendment Right to Private Conversations with Their Attorneys (p 21)
  42. Liberty Interest in Erroneous Parole Release (p 22)
  43. Prisoner Suing Prison Physician for Deliberate Indifference (p 23)
  44. Prisoner Can Attend His Civil Trial at Government Expense (p 23)
  45. Stun Belts in Court Unconstitutional (p 24)
  46. Federal Parolee Has Right to Hearing Under 18 USC § 4211(a)(2) (p 25)
  47. Lack of Standing Eviscerates Court Access Class Action (p 25)
  48. News in Brief (p 26)
  49. PLRA Dismissals for Failure to Plead Physical Injury Reviewed De Novo (p 27)
  50. Denial of Exercise Is "Atypical and Significant" (p 28)

Wreaking Medical Mayhem in Washington Prisons

In 1993, prisoner Gertrude Barrow crawled to the clinic at the Washington Corrections Center for Women. Her peptic ulcer ruptured, Barrow's requests for treatment had been dismissed by health care staff who diagnosed her ulcer as a bad case of gas. When Barrow vomited on the clinic floor, a nurse tossed a towel at her, and told her to clean it up. Barrow died just a few hours later. [ PLN , Oct. 1994]

Barrow's death served as the catalyst for a six-year legal struggle to upgrade WCCW's failing health care system from shameful to adequate.

For the past year, Seattle's Columbia Legal Services' Institutions Project, the ACLU and the Northwest Women's Law Center have waged a litigious battle with WCCW, in an attempt to extend judicial oversight over the institution's faltering health care system. The current litigation seeks to enforce a settlement agreement reached as a result of a class-action filed against WCCW in 1993 by prisoners. [ PLN , Apr. 1995] The 1993 suit, Hallett v. Payne (case number 93-5496), was borne out of a litany of health care horror stories: WCCW's health care staff performed bizarre procedures ( like removing a prisoner's mole with ...

A Foul Trend Emerges

An 1996, the Department of Labor and Industry (L&I) fined McNeil Island Corrections Center (MICC) over $13,000 for health and safety violations. L & I investigator Jeff Spann unearthed a pattern of inadequate training for health care staff, use of faulty medical equipment, and retaliation against staff who complained about MICC methods. MICC, a Washington State mens' prison, was cited for failure to supervise or train staff effectively, or to establish an effective accident prevention program. L & I's violation report ( Inspection number 115369852) concluded that MICC's methods created an unsafe working environment, where "supervisory refusals to take action" on health and safety issues reported by staff resulted in "serious accidents" and "near-miss incidents" for both prisoners and staff.

The incident that prompted the investigation was a lurid blood spill. On September 11, 1996, prisoner Joseph Daniels, who was being treated for an infection, went to sleep with an intravenous tube secured in his arm. The tube, also called a heparin lock, was three years past its expiration date. That night a custody officer found Daniels saturated in blood: about a quart of blood had spilled out of the deteriorated heparin lock. A nurse with twelve years experience said that it was the worst blood spill she had ever seen.

Investigators found that health care staff were aware of the expired heparin locks at least two months previous to the incident, but that nursing supervisors had disregarded requests from nursing staff for new stock. Former MICC nurse Sherry VanHorn informed Chief Nurse Pat Callahan that the heparin locks were expired and prone to leakage months prior to Daniels' blood spill. Callahan ignored VanHorn's concerns. And five days after the spill, management still made no effort to replace the supply, and questionable heparin locks were still in use. When an inspector asked to see a heparin lock in good condition shortly after the incident, management tried to hide several seriously deteriorated heparin locks still in packages.

Staff at MICC also repeatedly complained to management about lack of safety and health care training. Numerous employees were exposed to toxic chemotherapy agents; nurses were expected to handle potentially lethal chemotherapy waste and ordered by management to administer chemotherapy drugs without proper training or equipment.

Employees who complained to management at MICC were most often reprimanded, publicly embarrassed, or harassed. Chief Nurse Pat Callahan delivered a letter of reprimand to staff nurse Barbara Jackson for filing complaints about the lack of safe worker-protection measures when in contact with a prisoner with TB. Jackson--a nurse with twenty-three years of experiencewas also threatened with further disciplinary actions should her complaints continue, and scolded for "jumping the chain of command." The same letter of reprimand also falsely stated that the health department and L & I had confirmed that MICC was in compliance, when both agencies had informed supervisors in healthcare services that they were in violation of state laws. When informed by investigators that the letter was in violation of state laws, and asked to remove the letter from the employee's files, Superintendent Belinda Stewart refused, saying that she couldn't allow employees to complain to outside agencies.

Nearly all nurses interviewed by investigators said they had nowhere to go with health and safety concerns. Ten ...

Is Health Care Too Much to Ask For?

By Silja J.A. Talvi

In California's State Prison System, Female Prisoners and Their Advocates Say They're Continuing to Fight an Uphill Battle, While Prison Administrators Insist They're Doing Their Job

Over the last several years, health care-related allegations emerging from women's state prisons in California have echoed notably similar scenarios: The denial of adequate medicine for chronic diseases, a lack of timely treatment for spreading cancers, and dangerous delays in care for pulmonary and cardiac problems.

At their worst, these accounts have suggested an alarming degree of health-related suffering among many prisoners, including the case of a mentally and physically ill prisoner at the Central California Women's Facility (CCWF) in Chowchilla who was confined naked to a dirty cell where, on several occasions, she ingested her own feces. According to lawyers representing prisoners at CCWF, the woman was denied access to liquid food supplements sent by her family on at least one occasion, and eventually died of untreated pancreatitis and starvation.

In response to accounts like these, legal agencies in California pursued a class-action suit in the mid-1990s, hoping to improve the quality of life for women serving sentences in the state prison systems ...

Ex-Prisoner Gets $850,000 for Broken Neck

When Steven Dodson entered a California prison in October 1996, he didn't know that his neck was broken. He only knew that his neck pain kept getting worse. He also didn't know that the next 10 months of his life would be a nightmare of what amounts to ...

Arkansas Department of Corruption Revealed

A career employee of the Arkansas Department of Correction was demoted from his position as warden of the state maximum security prison in January 1996, after he spoke out about corruption and lack of security in the prison. He sued the DOC and several of its officials alleging a violation ...

County Jail Political Shenanigans, Corruption Revealed

Seven employees of the Rockingham County (North Carolina) Sheriff's Department were fired by the sheriff the day after his 1994 re-election. The seven filed suit alleging violation of their free speech and due process rights; the sheriff had fired them for not supporting his election campaign. A U.S. District Court granted summary judgement for the plaintiffs.

What makes this ruling noteworthy is not the constitutional issues involved, but the underlying facts. The "Facts" section of the court's ruling opens a window to the seamy inner workings of one county jail and provides a rare glimpse at the corrupt practices of some of its jailers: For years it was common practice among jail employees to write personal checks to deposit in exchange for illegal cash withdrawals in the "inmate trust fund", giving themselves interest-free loans in the process.

The facts of this case reveal a sheriff, C.D. Vernon, as a petty tyrant who cowed his employees into displaying re-election posters in their yards "or else." In an operation that Richard Nixon would have admired, Vernon obtained the campaign contribution lists of his opponent and threatened employees whose names appeared therein, including one of the seven who were ...

From the Editor

Greetings and welcome to another issue of PLN. Labor Day is upon us a holiday that used to commemorate workers' struggle. But what does it mean now? Summer's last hurrah? One final barbecue or hiking trip and back home just in time for the football kickoff?

Me, I still like to think about the struggle. I'm doing time in an 800-bed prison where about 150 are employed in Class I Industry (a.k.a. "Free Venture" or "PIE") jobs. Most of these PIE workers consider themselves unbelievably lucky to earn more than the 42¢ an hour they'd get from a state job. Yes, they're paid minimum wage for work that in today's tight labor market pays twice that. Yes, payroll deductions for "cost of corrections", victims compensation, mandatory savings, taxes, and social security reduce their "take-home" pay to about $2.50/hour. And, yes, these workers are laid off at the bosses' whim for days or weeks at a time. Still, they say, it beats mopping a floor for 42¢/hour.

Over the years many of these guys have taken a dim view of PLN's editorial stance on prison labor, thinking PLN is out ...

Crime and Punishment in America, by Elliot Currie (Review)

Metropolitan 230 pp.

Reviewed by H. Bruce Franklin

This is a very unfashionable book. Elliott Currie does not believe that we need to build more and more prisons, impose longer sentences, make prisons as harsh as possible, eliminate educational opportunities for prisoners, reinstitute chain gangs, treat juvenile offenders as adults, and divert still more funds from social services to penal institutions. He clings to the old fashioned notion that we should concentrate more on the prevention of crime. He even goes so far as to accept the hopelessly outdated idea that widespread poverty is the main cause of violent crime. If all this were not antiquated enough, Currie also evidently assumes that rational argument based on scientific knowledge i.e., reason and facts can change social policy. Even his prose is anachronistic earnest, free of jargon, lucid.

When Currie, who has taught sociology and criminology at Yale and Berkeley, advanced similar arguments in his 1985 volume Confronting Crime, the New York Times reviewer noted that "the biggest incarceration binge in American history" had increased the nation's prison population from fewer than 200,000 in 1970 to 454,000 by 1984. Currie's warnings against continuing the binge were of ...

The Way the Wind Blew: A History of the Weather Underground, by Ron Jacobs (Review)

Verso. 216 pages. $17

Reviewed by Paul Wright

The United States is unique  among modern nations in that its government has never experienced a serious revolutionary challenge. Opposition movements in the U.S. can be typified as embodying the politics of protest over the politics of seizing state power. Communist philosopher Herbert Marcuse called state tolerance of this type of opposition "repressive tolerance." By allowing "safe" dissent the state can continue its actual policies and provide "a safety valve for those who disagreed with them. This safety valve placated the opposition without challenging the power of the state."

In the late 1960's and early 1970's, the Weather Underground did challenge the power of the state by carrying out a series of protests and bombings in response to racism and imperialism by the U.S. government. Ron Jacobs' book is a brief, easy to read history of the Weather Underground. While not a "prison book" per se we are reviewing it in PLN because it puts the prisoner rights movement into a broader historic context.

After the murder of George Jackson the Weather Underground blew up the California Department of Corrections offices in San Francisco, Sacramento and San Mateo ...

Texas Prison Warehouses (Letter)

by : D.G. "Tex" Hoffman

The Texas Dept. of Corrections operates the nation's second largest prison system after California, including 20 transfer facilities. Transfer facilities are Texas' answer to overcrowded county jails; the first facility was built in mid- 1994 when jails were overflowing with state prisoners.

Transfer facilities consist of pre-fab, sheet metal-clad buildings with four 50-man open dorms. Each facility houses 2,000 prisoners.

According to the Texas Government Code, prisoners sentenced to the Texas Dept. of Corrections are first sent to a transfer facility for two years unless they are bench warranted back to the county, at which time the two-year time period starts over. Following two years at a transfer facility prisoners are sent to an Institutional Division (ID) unit to finish their sentences.

Prisoners housed at transfer facilities cannot purchase radios, fans or typewriters. The prohibition on fans is a particular hardship during the summer months: transfer facilities do not have air conditioning and internal temperatures can soar up to 1400.

Prisoners at transfer facilities are not allowed to go to the institutional library unless they are enrolled in GED classes. The facilities do not provide the same amount of recreation time or educational ...

Beaten Connecticut Jail Detainee Awarded $2.07 Million

A federal jury in February, 1999 awarded Kevin King $2 million in punitive damages and $75,000 in compensatory damages for a beating he suffered at the hands of Hartford (Conn.) Correctional Center jail guards. The verdict touched off a firestorm of controversy because King, 27, is a convicted rapist ...

Missouri Proposes $2.2 Million Settlement

On June 25, 1999, the state of Missouri filed a proposed $2.2 million settlement in U.S. District Court that would dispose of 32 lawsuits filed in state and federal courts by 700 - 2,100 Missouri prisoners abused in Texas jails. The lawsuits stem partly from abuses that occurred ...

New Mexico Riot Rooted in Religious Rights

On April 6, 1999, up to 400 prisoners at the Wackenhut-oper- ated Lea County Correctional Facility in Hobbs, New Mexico, rioted and ransacked the prison's kitchen and dining areas. Thirteen guards, including two state employees, and one prisoner were injured in the melee, which was the latest in a series of violent incidents that have occurred at the private prison over the past year [see PLN, June, 1999]. Hundreds of state and local law enforcement officers responded to the riot.

New Mexico Corrections Dept. spokesman Mike Toms said the disturbance started as an argument between prisoners and guards over items used in Native American religious services. Several months before the riot, a group of Native American prisoners had complained they were being prevented from conducting religious ceremonies. The group the Red Nation Indian Society submitted the complaint to the corrections department in a letter signed by around 40 prisoners.

The Lea County Correctional Facility holds the largest number of Native American prisoners among New Mexico's state prisons, with about 60 taking part in religious services. The prisoners stated in their complaint that they were unable to use a ceremonial sweat lodge they had built because Wackenhut would not ...

Rikers Island Detainee Shot

In March, 1999, Rikers Island, New York City, jail prisoner Petros Bedi, 27, was shot in the chest with a .25 caliber pistol by another prisoner. Bedi was awaiting trial on murder charges.

Jail guard Edward Quinn was suspended after the shooting for allowing Norman Seabrook, head of the Corrections Officers Benevolent Association (i.e., the jail guards' union), into the area where the shooting took place. Jail spokesman Tom Antenen said Quinn should not have allowed anyone into the area as it was an active crime scene.

The shooting occurred in the James Thomas Center on Rikers Island. During a search of the jail, guards recovered the pistol, with four rounds of ammunition, they believe was used to shoot Bedi.

Rikers Island prisoners have been shooting each other for years. [see: NYC Claims 'Prisoners Shoot Themselves to File Suit, PLN, Apr. 1.993]. Typically, prisoners bribe guards to smuggle guns into the jail with which they then either shoot themselves or have another prisoner shoot them. The shot prisoner then either sues the jail or attempts to escape from the hospital. Given the frequency of shootings in the jail, the lack of fatalities is surprising.


Tennessee Supreme Court Upholds Private Prison Disciplinary Procedures

When the Tennessee legislature passed the Private Prison Contracting Act of 1986, codified at TCA § 41-24- 101 to 115, the following provision was included: "No contract for correctional services shall authorize, allow or imply a delegation of the authority or responsibility of the [Dept. of Correction] to a prison contractor for ... taking any disciplinary actions."

The Tenn. Dept. of Correction (TDOC) later developed Uniform Disciplinary Procedures for the CCA-operated South Central Corr. Center the state's only privately- operated state prison. The procedures permit CCA employees to serve on an institutional disciplinary board; the board reviews evidence, determines guilt and makes recommendations for punishment to a TDOC liaison a state employee who either approves or modifies the board's decision.

Two prisoners at South Central, Luther Davis and Jabari Issa Mandela, were charged with rule violations and found guilty by a disciplinary board composed of CCA employees. They then filed separate lawsuits in Chancery court claiming the disciplinary procedures at South Central constituted an illegal delegation of the TDOC's authority to punish prisoners.

Their arguments were rejected by the Chancery court and Court of Appeals, and the Tennessee Supreme Court agreed to hear their consolidated cases. On Oct. 19 ...

Prison Realty Board Member Settles Ethics Complaints

Prof. Charles W. Thomas, director of the Private Corrections Project at the University of Florida and a board member of Prison Realty Corp., has long been criticized for his close connections with the private prison companies he researches [see: "University professor shills for private prison industry," PLN, Feb. 1999].

On April 19, 1999, Thomas agreed to settle two ethics complaints filed against him by the Florida Police Benevolent Association, a union that represents state corrections employees. In light of a $3 million fee he received for advising CCA on its merger with Prison Realty Trust, Thomas acknowledged that his business dealings with private prison operators could create the impression of a conflict of interest.

According to Eric Scott of the state Attorney General's office, Thomas's "contractual relationships with [Prison Realty Corp.] created a situation which could tempt dishonor. Because the results of [his] research can have such a profound effect on the private prison industry, [he] is in a position where his private economic interests and his public duty overlap in a manner which could lead to a disregard of his public duty. In other words, [he] could be tempted to alter the results of his research in ...

West Virginia DOC Commissioner Resigns After Beating Wife

On March 10, 1999, West Virginia Department of Corrections commissioner Bill Davis resigned his position "effective immediately." Davis cited "personal reasons" for resigning.

The "personal reasons" in question is Davis's arrest on spousal abuse charges. On March 5, 1999, Davis's estranged wife Angela called police to report that Davis had entered her home "smacked her in the mouth, gave her a busted lip, tore her clothes and threw her to the floor," said Putnam County sheriffs department sergeant R.E. Harrison.

Davis was charged with domestic assault and domestic battery and released on $1,500 bail. Putnam county magistrate Brian Wood ordered Davis to have no contact with his wife or their two children. Davis faces up to six months in jail and a $100 fine if convicted of the assault charge and 12 months in jail and a $500 fine if convicted on the battery charge.

This was the fourth domestic violence call to police from the Davis home in recent months. It was the first time an arrest had been made.

As corrections commissioner Davis oversaw the West Virginia prison system with 3,000 prisoners and was a member of the state's parole board. He ...

Pro Se Pennsylvania Prisoner Awarded $100,000 in Guard Attack

On February 25, 1999, a federal jury in Harrisburg, Pennsylvania awarded state prisoner Gerald Henderson $100,000 in compensatory and punitive damages stemming from an attack by prison guards.

On March 29, 1995, while imprisoned at SCI-Rockview, Henderson was using the phone in a prison cellblock when he was struck ...

Texas Jail Whistleblower Awarded $3.3 Million

On January 26, 1999, the Lubbock county commissioners court approved a $3.3 million settlement with fired jailer Karen Strube. Strube was a jail guard in the Lubbock County jail in Texas. She complained to the Texas Department of Health (DOH) that she had been required to clean the jail ...

Washington 35% Spousal Suit Update

In last month's issue of PLN we reported the trial court ruling striking down RCW 72.09.480. This Washington statute allows the Department of Corrections to seize 35% of all funds sent to prisoners. Dean v. Lehman is the state court lawsuit filed by the spouses of prisoners challenging the law's constitutionality.

As we reported last month, King County superior court judge Glenna Hall held that RCW 72.09.480 violates the state constitution's provision on equal taxation as well as the takings clause of the state and federal constitutions. The state sought a stay of judge Hall's order pending their appeal.

On July 13, 1999, the Washington court of appeals for Division I denied the state's motion for a stay. The court also certified the case to the state supreme court, holding that the suit involves "an issue of broad public import that requires prompt and ultimate determination, to wit:

"Did the trial court err in finding that RCW 72.09.480 violates Article VII, § I of the Washington State Constitution and the takings clauses of the state and United States constitutions by permitting the state Department of Corrections to seize a portion ...

Arizona DOC Settles Kosher Diet Suit

On January 29, 1999, the Arizona Department of Corrections settled a lawsuit involving a Jewish prisoner's right to a kosher diet. Kenneth Ashelman, an orthodox Jewish prisoner, filed suit when the DOC refused to provide him with a kosher diet. The suit was dismissed by the district but reversed on appeal. See: Ashelman v. Wawrzaszek, 111 F.3d 674 (9th Cir. 1997)[PLN, Oct. 1997]. The Ninth circuit appeals court held that Jewish prisoners are entitled to a kosher diet.

Under the terms of the settlement, Arizona prison officials agreed to provide Ashelman with a menu that includes hard boiled eggs, prepackaged breakfast cereal, whole fruits and vegetables, tuna and TV dinner style kosher trays. A rabbi will ensure the meals do not violate Jewish dietary laws.

The Arizona DOC states it has 70 Jewish prisoners in its custody. Presumably, they too are entitled to kosher meals even though the suit was not filed or litigated as a class action suit. The settlement concludes two years of negotiations between Ashelman and the Arizona DOC after the Ninth circuit's remand.

Dallas Morning News

US Supreme Court Holds Media Ride-Alongs Unconstitutional

A unanimous United States Supreme Court held that police violate the Fourth amendment of the U.S. constitution when they allow members of the news media to ride along with them while executing search and arrest warrants. The court also held police were entitled to qualified immunity from money damages for violations occuring before this ruling.

In two separate cases, the supreme court granted review to determine the constitutionality of media "ride alongs" with police. During a heavily publicized effort to track down fugitives, the U.S. marshals obtained an arrest warrant on probation violations for Dominic Wilson. The marshals, accompanied by Maryland police and a reporter and a photographer from the Washington Post forcibly entered the Maryland home of Charles and Geraldine Wilson, Dominic's parents, at 6:45 AM. The arrest warrant for Wilson said nothing about media accompanying police in the arrest.

The reporters took numerous photos, which were never published, of the interior of the Wilson's home. When police forcibly entered their home, Charles was in his underwear, Geraldine in a nightgown. After angrily complaining to police that his son was not at their home, Charles was forcibly restrained by police.

The Wilson's later ...

Transsexual Awarded $755,000 in Jail Strip Search

In May, 1999, a federal jury in San Francisco, California, awarded Victoria Schneider $755,000 in damages for a strip search she was subjected to in the San Francisco county jail in 1996. Schneider, a post operative male to female transsexual, was arrested on prostitution charges in 1996 and booked ...

PLRA Physical Injury Requirement Constitutional

The U.S. Court of Appeals for the D.C. Circuit held that the "Limitation on Recovery" provision (physical injury rule) of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(e), does not violate a prisoner's rights to equal protection or access to courts. The court also determined that the provision "has little or no bearing on declaratory or injunctive actions."

This case involves a prisoner confined to the District of Columbia's Lorton prison. At some unspecified time, a Lorton guard disclosed information from the prisoner's medical file to the prisoner's fiancée, allegedly telling her the prisoner was dying of HIV.

As a result of this incident, the prisoner filed a civil rights complaint alleging that his constitutional right to privacy was violated. He sought compensatory and punitive damages, along with a declaratory judgment, alleging injuries limited to "emotional and mental distress."

The physical injury rule essentially prohibits any "civil action ... brought by a prisoner ... for mental or emotional injury suffered while in custody without a prior showing of physical injury." Relying on this rule, the district court issued a sua sponte order dismissing the complaint with prejudice, pursuant to 28 U.S ...

Tobacco Smoke Exposure Requires Trial

A federal district court in New York held that a prisoner's exposure to environmental tobacco smoke (ETS) may present a sufficient risk to his future health to implicate Eighth Amendment concerns, and factual disputes regarding the risk precludes summary judgment. The court further recognized that administrative grievances can place prison officials on notice of a need to act, and supply the requisite personal involvement for a § 1983 damage award.

At all relevant times, Stanley McPherson was a New York state Prisoner housed at either the Attica or Orleans state prisons. During the period, McPherson claimed he was subjected to constant ETS exposure, and although he did not allege any present physical injury, he did complain that the exposure posed a serious threat of future harm.

McPherson further alleged that the levels of ETS in Orleans dormitories prevented him from using the telephone, watching television, associating with other prisoners, etc. As a result, he asserted violations of his First and Fourteenth Amendment rights to free speech and assembly.

The court denied McPherson's motion for a preliminary injunction on the theory that he failed to demonstrate "irreparable harm." Thereafter, the defendants moved for summary judgment.

First, the court addressed the ...

DC Circuit Lifts Injunction on BOP Porn Ban

In the March 1997 issue of PLN we reported that Congress passed the "Ensign Amendment," prohibiting the use of Bureau of Prisons (BOP) funds to distribute sexually explicit material to prisoners. The BOP adopted regulations defining the terms of the ban and significantly narrowing its scope. Those regulations ban only pictorial forms of sexually explicit material.

In 1997, a group of prisoners and publishers filed suit alleging that the Ensign Amendment violated the First Amendment. As reported in the March 1998 issue of PLN, a federal district court held that the statute was facially invalid and permanently enjoined its enforcement. Amatel v. Reno, 975 F.Supp. 365 (D.D.C. 1997).

A divided panel of the court of appeals reversed the district court decision and lifted the permanent injunction, holding that both the statute and regulations "scored adequately on all four factors" of the Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987), Reasonable Relationship Test.

The majority concluded that the district court erred in directing its analysis primarily towards the statute, "because all enforcement was apparently mediated through the regulations and there was no indication that the statute would be applied directly. As such, the majority ...

De Novo Review for § 1915A Dismissals

The court of appeals for the Fifth circuit held that dismissals by district courts under 28 U.S.C. § 1915A should be reviewed de novo on appeal. Section 1915A requires district courts to screen prisoner lawsuits and dismiss those which are frivolous, malicious or which fail to state a claim upon which relief can be granted. Screening is done before the suit is served on the defendants. Section 1915A applies regardless of whether the prisoner plaintiff has paid the filing fee or is proceeding in forma pauperis. The court relied on Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)[PLN, Oct. 1998], which requires de novo review of 42 U.S.C. § 1997e(c) dismissals, to reach this conclusion. In doing so, the court agreed with the Sixth and Eighth circuits which have reached a similar conclusion. See: Ruiz v. United States, 160 F.3d 273 (5th Cir. 1998).

Third Circuit Holds 28 USC § 1915(g) Does Not Apply Retroactively

Third Circuit Holds 28 USC § 1915(g) Does Not Apply Retroactively

The court of appeals for the Third circuit held that 28 U.S.C. § 1915(g) does not allow courts to revoke the In Forma Pauperis status of litigants who were granted IFP status before the Prison Litigation Reform Act's (PLRA) enactment on April 26, 1996. Section 1915(g) requires that prisoner litigants prepay the full filing fee if they have previously had three or more lawsuits dismissed as frivolous, malicious or for failure to state a claim. The appeals court held that § 1915(g) cannot be applied to cases filed before, or pending on, the PLRA's enactment. Readers should note that the Second and Fifth circuits have reached the opposite conclusion and held that § 1915(g) applies retroactively. The DC, 4th, 7th, 9th and 10th circuits have ruled the same on this issue. See: Gibbs v. Ryan, 160 F.3d 160 (3rd Cir. 1998).

Three Strikes Upheld by Ninth Circuit

The court of appeals for the Ninth circuit upheld the constitutionality of 28 U.S.C. § 1915(g). Section 1915(g) generally denies in forma pauperis status to prisoner litigants that have had more than three lawsuits dismissed as frivolous, malicious or for failing to state a claim. The court held that § 1915(g) is constitutional and does not violate prisoner litigant's rights to due process, equal protection or the ex post facto and separation of powers clause. All circuits to consider this issue have upheld the constitutionality of § 1915(g). See: Rodriguez v. Cook, 169 F.3d 1176 (9th Cir. 1999).

Administrative Exhaustion Required in all Cases

A federal district court in New York held that a prisoner claiming guards beat him was required to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e. This case is especially useful because it summarizes all the conflicting rulings on this issue. To avoid procedural tangles PLN has consistently urged prisoner plaintiffs to exhaust their administrative remedies before filing suit. See: Beeson v. Fishkill Corr. Facility, 28 F. Supp.2d 884 (SD NY 1998).

State Court Dismissals Don't Count as Strikes

A federal district court in the District of Columbia held that the dismissal of frivolous suits in state courts do not count as "strikes" under 28 U.S.C. § 1915(g). Section 1915(g) prohibits in forma pauperis status for prisoner litigants that have had three or more lawsuits dismissed as frivolous, malicious or for failing to state a claim upon which relief can be granted. Based on this ruling, only dismissals in federal court count as "strikes." See: Freeman v. Lee, 30 F. Supp.2d 52 (D DC 1998).

Automatic Stay Provision Unconstitutional

A federal district court in New Mexico held that 18 U.S.C. § 3626(e), a PLRA provision that automatically stays prospective relief 30 days after a party files a motion for immediate termination of such relief, violates the separation of powers doctrine. The case involves a lawsuit filed in 1995 challenging overcrowding at the Bernalillo county detention center. The court granted a preliminary injunction and directed the defendants to reduce the jail's population. The court retained jurisdiction to enforce the order. The parties eventually settled the suit.

The defendants filed a motion to dissolve the injunction under the PLRA claiming they were having difficulty complying with the population limit. The defendants argued under 18 U.S.C. § 3626(e)(2) that prospective relief should be stayed 30 days after filing their motion. The court held that the 30 day time limit violated the separation of powers doctrine and was thus unconstitutional. The ruling is dated October 29, 1996, but was not published until February, 1999. To date, the circuit and district courts are divided on the constitutionality of § 3636. See: McClendon v. City of Albuquerque, 29 F. Supp.2d 1267 (D NM 1996).

Total Administrative Exhaustion Not Required

A federal district court in Michigan held that 42 U.S.C. § 1997e(a) does not require administrative exhaustion of all claims raised in a complaint. Instead, a court can dismiss the unexhausted claims without prejudice rather than dismiss the entire complaint. The court held that § 1997e(a) does not impose a total exhaustion requirement on prisoner plaintiffs. Therefore, complaints that mix exhausted with unexhausted claims should not be dismissed in their entirety. See: Jenkins v. Toombs, 32 F. Supp.2d 955 (WD MI 1999).

No Exhaustion Required in Wisconsin When Only Money Damages Are Sought

A federal district court in Wisconsin held that Wisconsin prisoners filing suit and seeking only money damages, are not required to exhaust their administrative remedies under 42 U.S.C. § 1997e(a) because the Wisconsin prison grievance system does not provide money damages.

"This court will ... hold that, where a prisoner is pursuing only monetary damages and the prison grievance procedure does not provide for monetary relief, the exhaustion requirement of § 1997e(a) does not apply. The plain language of § 1997e(a) requires only the exhaustion of 'available' administrative remedies. Since the state prison grievance system at issue here is not 'available' for the recovery of monetary damages, prisoners seeking only money damages will not be required to exhaust it.

"The holding of McCarthy has survived in the plain language of the statute. Should lawmakers create an administrative remedy that is capable of providing monetary relief to prisoners, exhaustion will be required. In light of the fact that no such administrative remedy currently exists, the defendants' motion to dismiss for failure to exhaust administrative remedies will be denied." See: Davis v. Woehrer, 32 F. Supp.2d 1078 (ED WI 1999). Readers should note that the Seventh circuit has yet to ...

No Written Screening or Administrative Exhaustion Required

A federal district court in Alaska chided the Alaska attorney general's office when the latter complained the court was not providing a written summary of its screening of prisoner lawsuits under 28 U.S.C. § 1915A. The court held it was under no obligation to provide the defendants with a written copy of its screening and severely criticized the AG's claim that it was inadequately screening prisoner lawsuits. The court observed it dismissed most prisoner lawsuits before they were ever served on the defendants. The court was incredulous at the AG's claim that they could not decipher the plaintiff's claim in this case that he was beaten.

The court also held that administrative exhaustion was not required because the action complained of, a beating, was not a "prison condition" as defined in 42 U.S.C. § 1997e(a). The court ordered service on the defendants and for the action to proceed. See: Harris v. Ford, 32 F. Supp.2d 1109 (D AK 1999).

Physical Injury Requirement Doesn't Apply to Court Access Claims

A federal district court in Illinois held that 42 U.S.C. § 1997e(e), which conditions prisoners' right to file suit in federal court on the suffering of physical injury, does not apply to court access claims. The court held that it would only apply the "actual injury" test enunciated in Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174 (1996). The court noted that other courts have already held § 1997e(e) does not apply to certain claims, including first amendment and wrongful imprisonment claims. See:Lewis v. Sheahan, 35 F. Supp.2d 633 (ND IL 1999)

Fact Issue of Physical Injury Precludes Summary Judgment

The court of appeals for the Fifth circuit held that the material fact issue as to whether prisoner suffered more than de minimis physical injury from alleged excessive force precluded summary judgement in favor of prison officials.

Juan Gomez, a Texas state prisoner at the Eastham Unit, filed a civil action under 42 U.S.C. § 1983 alleging that four prison guards subjected him to excessive force in violation of the Eighth Amendment.

According to Gomez's complaint, he was being escorted handcuffed by two prison guards, Gregory Palmeiri and Harold Roden. Palmeiri grabbed Gomez by the handcuffs from behind and slammed his face to the concrete floor. Then Palmeiri and Roden both repeatedly punched Gomez in the face and scraped his face against the concrete. After about five minutes of this, two sergeants, William Chandler and Henry Reece, came to the scene. Sgt. Reece then kicked Gomez in the face and head. Then both sergeants stood back and laughed while Palmeiri continued to hit Gomez with his fists.

Gomez required medical treatment for cuts, scrapes, and contusions to the face, head and body as a result of the beating.

The defendants filed a motion for summary judgement asserting, inter ...

Wright Dismissed on Remand

In the July, 1998, issue of PLN we reported Wright v. Coughlin, 132 F.3d 133 (2nd Cir. 1998). The case involves a New York state prisoner who spent 288 days in segregation after being infracted for participating in a prison rebellion. A state court reversed the disciplinary sanctions, finding that the disciplinary hearing did not comport with due process. Wright then filed suit in federal court seeking damages.

The district court dismissed the suit. As noted above, the Second circuit reversed and remanded the case with instructions for the lower court to reconsider its ruling in light of Brooks v. DiFasi, 112 F.3d 46 (2nd Cir. 1997) and Miller v. Selsky, 111 F.3d 7 (2nd Cir. 1997) (PLN, Sep. 1997]. On remand the lower court was instructed to consider the duration of Wright's confinement and any distinctions between administrative and disciplinary segregation. The appeals court also held the district court had erred when it considered, and relied on, the defendants' self serving affidavits in ruling against Wright.

On remand the district court has again dismissed the suit. In a lengthy ruling, the court held that Wright had not shown his 288 days in segregation imposed an ...

Private Prison Denied Wiretap Exception

A federal district court in Rhode Island held that a private jail is neither a "law enforcement" agency, nor a federal Bureau of Prisons (BOP) facility, that would shield it from liability under federal wiretapping statutes, 18 U.S.C. §§ 2510-2520 (the Act). The court further held that factual disputes required a trial on the issue of consent to intercept.

This case involves numerous plaintiffs, consisting of attorneys, their incarcerated clients, and the prisoners' families and friends. At all relevant times (1993-94), the prisoners were confined to the Wyatt Detention Facility, which was operated by Cornell Corrections, a private corporation. During this period, the plaintiffs claim that the defendants (the corporation, its agents and employees) intercepted telephone calls from the prisoners, including confidential and privileged legal communications.

Section 2520 of the Act creates a private right of action for any person whose oral communication is intercepted in violation of the Act. As a result, the plaintiffs sued for damages under the Act, and an analogous Rhode Island statute. Both sides subsequently moved for summary judgment.

The Act provides two relevant exceptions to liability. First, § 2510(5)(a)(ii) excludes wiretaps "by an investigative or law enforcement officer in the ordinary ...

No Court Access Right to Litigate Civil Forfeiture

The U.S. court of appeals for the Eleventh Circuit held that prisoners do not have an access-to-court right to defend against civil forfeiture. The court also accorded qualified immunity, sua sponte, to all defendants on the prisoner's conditions of confinement claims.

On September 12, 1991, Donald Wilson was arrested on a federal warrant issued by a court in Alabama. Because there are no federal detention facilities in that area, Wilson was housed in the Montgomery City Jail (MCJ).

During his stay in MCJ, Wilson had no law library access, no meaningful opportunity for either outdoor or indoor exercise, and he was held in disciplinary isolation for a brief period without bedding. As a result of these conditions, Wilson sued several MCJ officials under § 1983, and a U.S. Marshal under Bivens, for damages.

A magistrate judge ordered "special reports" from the defendants, and then treated the reports as a motion for summary judgment. After an evidentiary hearing before the magistrate, a district judge adopted the report and recommendation, and entered summary judgment on the merits for all defendants.

On appeal, the court characterized Wilson's access-to-court claim as limited to his criminal case, a civil forfeiture case, and ...

Prisoners Have First Amendment Right to Private Conversations with Their Attorneys

Prisoners Have First Amendment Right to Private Conversations With Their Attorneys

A federal district court in Pennsylvania held that prisoners have privacy and free speech rights to private conversations with their attorneys.

Pennsylvania state prisoners incarcerated on death row at SCI-Greene filed suit under 42 U.S.C. § 1983 alleging that the absence of a confidential meeting area for attorney-prisoner visits violated their Fourteenth Amendment right to privacy and First Amendment right to free speech. The undisputed evidence showed that one side of the conversation could be overheard by persons in the visiting area when the prisoner and attorney spoke in normal conversational levels and both sides of the conversation could be overheard when they spoke a little louder.

The plaintiffs did not claim a violation of access to courts because they could not prove an injury as required by Lewis v. Casey, 518 U.S. 343 (1996). The defendants did not claim any penological purpose in overhearing attorney-prisoner conversations.

The court admitted it had little guidance on this issue because most prior cases on prisoners-attorney confidential communications were brought under the Sixth Amendment right to counsel. The plaintiffs had already completed their direct appeals and therefore no longer had ...

Liberty Interest in Erroneous Parole Release

The court of-appeals for the Fourth circuit held that a parolee's interest in his continued liberty crystallized during his two years of successful parole, even though he had been released in error, requiring strict scrutiny of the State's intentional infringement of that interest. The court also held that in this case the State's violation did not pass such scrutiny.

"After receiving contradictory notifications about when he would be eligible for parole," Irving Hawkins, a North Carolina prisoner sentenced to fifty years in 1981 as a habitual felon, "was finally paroled in 1992."

Hawkins successfully reintegrated, into the community, obeying all conditions of his parole, holding a job in which he was promoted, and reacquainting himself with his family. Then in 1994 he was rearrested on the basis that the determination that he was eligible for parole had been made in error.

Hawkins challenged his reincar-ceration primarily on the grounds that it violated his substantive due process rights, and also advanced alternative theories of waiver, estoppel and the bar against alternative sentences. He also argued that the parole revocation hearing violated his procedural due process rights as well.

"A U.S. Magistrate judge recommended that such relief be ...

Prisoner Suing Prison Physician for Deliberate Indifference

A federal district court in New York denied summuary judgment to a prison physician being sued for medical neglect. The court held that a genuine issue of material fact was in dispute in that the physician may have acted with deliberate indifference by failing to diagnose a prisoner's serious medical condition.

Samuel J. Hudak, a New York prisoner, brought an Eighth Amendment claim pursuant to 42 U.S.C. § 1983. He alleged that the attending physician at Rockland County Correctional Facility, Dr. Burton D. Miller, acted with deliberate indifference in regard to his chronic headaches. These headaches were later found to be caused by a large aneurysm

From October, 1994 through June, 1995, Hudak sought medical attention numerous tunes for chronic migraine headaches, nausea, difficulty eating and insomnia. In October, 1994, Dr. Miller noted Hudak's history of migraine headaches and prescribed Tylenol for the headaches and Benadryl for the insomnia. After Hudak make approximately 6 more visits for medical attention, Dr. Miller and Dr. Antoine agreed that Hudak did not have typical migraines and decided to conduct thorough neurological exams. Miller conducted a neurological exam of Hudak but declared his belief that Hudak was suffering from "tension headaches ...

Prisoner Can Attend His Civil Trial at Government Expense

A federal district court in Maryland held that it would permit a federal prisoner, confined in Pennsylvania, to personally attend his three-day civil rights trial in Greenbelt, Maryland, at government expense.

In separate incidents in 1993 and 1994, Anthony Hawks was allegedly beaten and otherwise tortured by three Baltimore City cops, during drug arrests. The charges arising from the '93 incident were eventually dismissed; however, Hawks received a 26 year federal sentence as a result of the 1994 arrest.

In 1996, Hawks filed a civil rights action against the cops. Oddly, no dispositive motions were filed by the defendants, and the disparity between the parties' versions of events required a trial to resolve. Hawks, who was now represented by pro bono counsel, requested to attend the trial at government expense.

In deciding the issue, the court recognized that prisoner plaintiffs have a right of access to court. Implicit in this right is an obvious need for a prisoner to "be present at the trial of his action, particularly if ... his own testimony is critical."

After reviewing the case law, the court found Kirk v. United States, 589 F.Supp. 808 (ED VA 1984), to be instructive. In Kirk, the court ...

Stun Belts in Court Unconstitutional

A federal district court in California held that the use of stun belts, as a control device on criminal defendants in courtroom proceedings, raises serious questions as to the practices' constitutionality. As a result, the court issued a preliminary injunction (PI) enjoining the Los Angeles County Sheriff from such use of these devices, pending the outcome of a trial.

On June 20, 1998, Ronnie Hawkins appeared before Judge Joan Comparet-Cassani in Los Angeles County Municipal Court for sentencing on burglary and theft charges. Due to alleged threats of violence to the judge, the court ordered the L.A. Sheriff to outfit Hawkins with a stun belt. According to Comparet-Cassani, Hawkins allegedly became disruptive during the proceeding and she ordered the stun belt activated.

After his electrifying courtroom experience, Hawkins sued the judge, the sheriff, the sheriff deputy who activated the belt, the municipal and superior courts, and the county. His requested relief included: (1) a declaration that such use of stun belts is unconstitutional; (2) an injunction prohibiting their use; and (3) damages.

After filing an amended complaint, Hawkins moved for a preliminary injunction and class certification, while the defendants moved for dismissal on various theories. This opinion resolves these ...

Federal Parolee Has Right to Hearing Under 18 USC § 4211(a)(2)

Federal Parolee Has Right to Hearing Under 18 USC § 4211(a)(2)

The Seventh Circuit court of appeals has held that a pre-Guidelines federal parolee has the right to a hearing under 18 U.S.C. § 4211(a)(2), five years after release, to determine whether the United States Parole Commission should terminate supervision.

James Valona, a federal parolee, was sentenced under pre-Federal Sentencing Guidelines law. 18 U.S.C. § 4211(a)(2) stated that five years after release "the Commission shall terminate supervision over such parolee unless it is determined, after a hearing ... that such supervision should not be terminated because there is a likelihood that the parolee will engage in conduct violating any criminal law." This statute has been repealed by the Guidelines, but still applies to pre-Guidelines crimes.

Valona was released in 1992, but not given a hearing. He filed a federal action seeking an order terminating supervision. The district court dismissed the petition as a successive writ filed without the approval of the court of appeals. The court of appeals reversed, holding that the petition did not attack the conviction, so it was not successive, 138 F.3d 693 (7th Cir. 1998). The court noted that ...

Lack of Standing Eviscerates Court Access Class Action

The U.S. court of appeals of the Seventh Circuit held that the two nominal prisoner/plaintiffs in a long-running class action lacked standing to assert a denial of their right of access-to-the-courts. Without standing, the district court was without jurisdiction, and the case was properly dismissed.

This action was commenced in 1982 by Terrell Walters and Joseph Ganci. Three years later, the court certified a class consisting of all state prisoners housed in segregation units at Illinois maximum security prisons, 615 F.Supp. 330 (ND IL 1985). The sole issue of the litigation was the systematic denial of access-to-court.

A trial was conducted in 1991 and 1992, and the court found the prisoners' right of access-to-the-courts had been infringed. 900 F.Supp. 197 (ND IL 1995)[PLN June 1996). However, after the Supreme Court decided Lewis v. Casey, 518 U.S. 343 (1996), the district court applied the change in law and found the titular plaintiffs lacked standing. 973 F.Supp. 793 (ND IL 1997)[PLN June 1998]. The suit was dismissed.

The essence of the prisoners' claim was that the "runner" system of providing legal services to segregation prisoners unconstitutionally impeded their access-to-the-courts. According to the opinion, the ...

News in Brief

AZ: On January 30, 1999, prisoners Jeffrey Camper and John Lofton escaped from the state prison in Douglas by cutting through two perimeter fences with wirecutters from the prison's yard. Both men were serving life sentences for murder. They were recaptured five hours later by police and Border Patrol agents.

Columbia: On June 25, 1999, 150 Fuerzas Armadas Revolucionarias de Columbia (FARC) guerrillas attacked the federal prison in Neiva with explosives and automatic weapons, blasting holes in the prison's walls. One prisoner was killed, one guard wounded and at least 15 FARC prisoners freed in the attack.

Columbia: On June 29, 1999, 290 Fuerzas Armadas Revolucionarias de Columbia (FARC) guerrillas attacked a prison in Palmira, blasted a hole in a prison wall and freed seven jailed FARC members.

FL: On December 10, 1998, Bennie Hugh Frazier, the chief of U.S. district court pretrial services in Miami, was arrested after buying a gram of cocaine from a street drug dealer. Frazier's duties included supervising an office of 50 pretrial service officers who recommend bail amounts for all defendants accused of federal crimes in South Florida.

FL: On November 30, 1998, Brevard Correctional Institution Work Center prisoners Robert ...

PLRA Dismissals for Failure to Plead Physical Injury Reviewed De Novo

The Tenth Circuit court of appeals has held that prisoner suits dismissed for failure to plead a physical injury, as required by the Prison Litigation Reform Act (PLRA), must be reviewed de novo.

Darren Eugene Perkins, an HIV-positive Kansas state prisoner, filed suit under 42 U.S.C. § 1983, alleging that his Eighth Amendment rights were violated because he was: required to wear a face mask when outside his cell; denied outdoor recreation; and denied medical treatment.

Perkins spat on two guards in the outside recreation yard. Since then for over a year upon leaving his cell Perkins has been required to wear a face mask which covers his entire head. He has also been denied all outdoor recreation. Perkins received neither prior notice regarding the consequences of spitting on a guard nor a hearing on the face mask and outdoor recreation restrictions. He contends that other prisoners who spat on guards are not being subjected to such restrictions. He claims the mask is humiliating, causes him psychological stress, and leads to the further weakening of his immune system. It also results in his frequent refusal to leave his cell, even for showers and medical appointments. Perkins also claimed that ...

Denial of Exercise Is "Atypical and Significant"

Denial of Exercise Is "Atypical and Significant"

The U.S. court of appeals for the Eleventh Circuit held that Florida state prisoners, who are being held in Close Management (CM) status, have a state-created liberty interest in outdoor exercise, which is protected by due process, and that a deprivation of yard time constitutes an "atypical and significant hardship" on a prisoner.

Frankie Bass and Leonard Bean are two legendary Florida prisoners housed at Florida State Prison (FSP), the state's super max facility. Throughout most of their incarceration, as a result of continuous mischief and mayhem, Bass and Bean have been held in CM, which is Florida's most controlled housing status, a form of solitary confinement.

Fla. Admin. Code r. 33-3.0083(9)(i) once provided that CM prisoners be given two hours of outdoor exercise per week, unless "clear and compelling facts" dictate otherwise. Although not noted in the opinion, this rule was revised in October '95 to eliminate the "clear and compelling" language, and it was renumbered as Fla. Admin. Code r. 33-38.011(9). Nevertheless, whenever reasons warranted, a CM prisoner could be placed on the Yard Suspension List (YSL) at FSP.

In this case, Bean ...


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