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Prison Legal News: September, 1999

Issue PDF
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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...