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Prisoner Education Guide

Prison Legal News: November, 2000

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Volume 11, Number 11

In this issue:

  1. Whistle-blowing Doctor Shakes Up Nebraska DOC (p 1)
  2. Corcoran Show Trial Ends with Acquittals (p 4)
  3. Pelican Bay's Bloody Wednesday (p 5)
  4. $16 Million Agreement to Revamp NJ Prison Mental Heath Care (p 6)
  5. Florida 'Sexual Predator' Fails in Daring Bid for Freedom (p 7)
  6. New York Prisoners Have Ad-Seg Liberty Interest (p 8)
  7. Pregnant OH Prisoner Obtains Abortion (p 8)
  8. Reconsidering Restorative Justice: The Corruption of Benevolence Revisited? (p 10)
  9. FTCA Claims May Be Brought Only Against U.S. (p 11)
  10. Post-Conviction Update (p 12)
  11. NY School-Age Prisoners Entitled to Educational Services (p 15)
  12. County Jail Time Returned to CO Lifers (p 15)
  13. Male NJ Guard's Sexual Harassment Suit Settled for $425,000 (p 16)
  14. Detainee's Excessive Force Claim Requires Trial (p 16)
  15. Slave Labor Supplanting Welfare State (p 17)
  16. Texas Prisons Heat Up As Parole Hopes Fade (p 18)
  17. Disabled Prisoner Survives Summary Judgment (p 19)
  18. Without Running Water (p 19)
  19. News in Brief (p 20)
  20. $78,000 Damages and Fees Awarded in KS Kosher Diet Suit (p 22)
  21. Discipline for Correspondence Containing Legal Advice Vacated; US S.Ct. Grants Review (p 22)
  22. From the Editor (p 23)
  23. Washington Radiation Suit Settled for $2.4 Million (p 24)
  24. Irradiation Limitation Remains Unsettled (p 25)
  25. Disabled Prisoner Survives Summary Judgment (p 26)
  26. Dismissal of Medical Claim Reversed After Prisoner's Death (p 26)
  27. $35,000 Awarded to CA Prisoner in Beating Suit (p 26)
  28. MI Hearing Officer Fired for Following Law (p 27)
  29. Private Citizen Liable for Jail Slavery Under §1983 (p 28)
  30. $586,000 to Settle KY Jail Strip Search Suit (p 29)
  31. $12,000 Awarded in NY Slip and Fall (p 29)
  32. Withholding Interest Does Not Violate Takings Clause (p 30)
  33. Retaliatory Denial of WA Parole Decision Vacated (p 30)
  34. Administrative Remedies Exhaustion Tolls LA Statute of Limitations (p 31)
  35. 9th Circuit Upholds Ban on Sex-based Publications; Requires Due Process (p 32)

Whistle-blowing Doctor Shakes Up Nebraska DOC

I have a story to tell--about how a doctor can be used to kill patients. I will talk to anybody you want me to. I spent twelve years of my life, and these people push me around and turn me into something horrible. I am ashamed of what I have become, I really am... For the first time, I stood up and said, "I can't kill any more. Too much. These are human beings, for crying out loud."

-- Dr. Faisal Ahmed interview with Nebraska Ombudsman's Office, September 15, 1998.

On September 10, 1998, Nebraska state prisoner Robert Zolper died of a heart attack--and needlessly so. According to Nebraska Department of Correctional Services (DOCS) doctor Faisal Ahmed, Zolper died because prison medical workers failed to perform cardiac life support. Equipment and supplies that could have been used to save Zolper's life were not even taken out of locked cabinets. By the time Dr. Ahmed was summoned to the scene, 20 minutes had elapsed and Zolper was by then essentially beyond saving.

Ahmed was suspended for his actions during Zolper's medical emergency. Supervisors criticized him for "speaking forcefully to medical staff" at the time of Zolper's heart ...

Corcoran Show Trial Ends with Acquittals

Corcoran Show Trial Ends With Acquittals

The saga of Corcoran's infamous SHU shootings ended June 8, 2000 when a jury acquitted eight California prison guards of federal charges that they entertained themselves by staging gladiator-style fights among prisoners from rival gangs.

Between 1989 and 1994 seven unarmed prisoners were fatally shot by guards for fighting while confined in tiny concrete exercise yards of Corcoran's Security Housing Unit (SHU). The killings were described to PLN by a Corcoran prisoner like "shooting fish in a barrel."

Federal charges against the eight Corcoran guards were brought when two of their colleagues blew the whistle to FBI officials after SHU prisoner Preston Tate was fatally shot on April 2, 1994.

The eight were indicted in February 1998 for conspiracy and for violating the civil rights of SHU prisoners by failing to keep them safe from harm. Combing through prison reports, the prosecutors alleged that 84 fights took place during the defendants' shift during one five and a half month period--300% more than in other Corcoran SHU units or on other shifts.

The prosecution focused on two of the fights. Corcoran Sgt. Truman Jennings and guards Timothy Dickerson, Michael Gibson and Raul Taverez ...

Pelican Bay's Bloody Wednesday

By W. Wisely

On Wednesday, February 23, 2000, one of the bloodiest riots in California prison history broke out among some 200 Black and Latino prisoners. The violence erupted at the state's infamous Pelican Bay prison. Guards sprayed rioting prisoners on the B Facility yard with more than 24 rounds from assault rifles, wounding 15 and killing one, according to a report by California Prison Focus.

The fighting began around 9:30 a.m. on that rainy, overcast day. "We don't know how this riot began or what precipitated the incident," Margot Bach, a Department of Corrections spokesperson, told the San Francisco Chronicle. Guards lobbed tear gas, squirted pepper gas, fired rubber and wooden bullets, and then let loose with .223-caliber rounds from their Ruger Mini-14 assault rifles.

It took 120 guards thirty minutes to quell the violence. "They did a great job," Cal Terhune, Department Director, told the Chronicle. Steve Fama, an attorney with the San Rafael Prison Law Office, said overcrowded conditions at the prison "probably had a lot to do with [the] riot." But, interviews with 50 prisoners by California Prison Focus indicates the violence may have been instigated by guards.

One prisoner confided that ...

$16 Million Agreement to Revamp NJ Prison Mental Heath Care

A federal district court in New Jersey has approved a $16 million settlement in a class-action suit against state prison officials for constitutionally deficient prison mental health care.

Patricia P. Pearlmutter, assistant professor of clinical law at the Center for Social Justice at Seton Hall University School of Law in ...

Florida 'Sexual Predator' Fails in Daring Bid for Freedom

A "violent sexual predator" who broke out of Florida's civil commitment detention center in a brazen midday helicopter escape was captured, along with his helicopter-flying accomplice, 4 ½ miles away after a 25-hour manhunt.

Shortly after 1:00 P.Mon June 5, 2000, Steven Whitsett jumped into a hovering chopper piloted by his longtime friend, Clifford Burkhart, a student pilot with 31-hours flying time on only his second solo flight. The tiny two-seat chopper bounced once and then barely cleared a 15-foot double razor wire fence before flipping out of control and crashing in an orange grove about 100 yards beyond the fence. Whitsett, 28, and Burkhart, 23, fled on foot. Investigators found two empty holsters in the crumpled helicopter and immediately launched a massive manhunt.

In 1994 Whitsett was a psychology student at Nova University. While conducting academic research at a juvenile sex offender treatment center, he apparently befriended several of the juvenile detainees, performed sex acts and took nude photos of a 15-year-old boy. He pleaded guilty to three counts of sexual battery on a child by a person in custodial authority, and two counts of lewd, lascivious or indecent assault on a child.

After serving 4 ...

New York Prisoners Have Ad-Seg Liberty Interest

A Federal district court in New York held that prisoners have a protected liberty interest in remaining free from administrative segregation.

On February 11, 1987 New York state prisoner, Santiago Ramirez, was served a Tier Three Disciplinary case for possession of a contraband weapon, namely a pointed steel rod which was found in his cell. Ramirez claimed that the rod was planted by guards in retaliation for grievances he had filed against them. Ramirez was tried by disciplinary hearing officer Michael McGinnis. Based on the testimony of Sgt. DeZayas, who claimed that he had learned of the weapon from an informant, McGinnis sentenced Ramirez to 60 days confinement in Sing Sing's Special Housing Unit, loss of telephone and commissary for those 60 days, and loss of one month of good time credit.

After losing his original appeal, Ramirez brought an Article 78 proceeding in New York State Supreme Court which annulled McGinnis' determination. The court ruled that Ramirez was improperly denied the right to hear testimony from Sgt. DeZayas and the informant. Ramirez then filed suit under 42 U.S.C. § 1983 against McGinnis claiming a violation of his due process rights. McGinnis moved for summary judgment claiming that ...

Pregnant OH Prisoner Obtains Abortion

A U.S. District Court enjoined the director of an Ohio prison from denying a pregnant jail prisoner access to abortion services.

Jane Doe, a pseudonymous female prisoner at River City Correctional Center in Cincinnati, was approximately 6 weeks pregnant when she was incarcerated on July 20, 1999. On July 28, Doe submitted a written request to prison director John Barron for pregnancy termination services. Barron denied Doe's request saying he would not provide such services absent a court order.

On August 10, Doe filed a Rule 65 motion in U.S. District Court asking for a Temporary Restraining Order (TRO) and preliminary injunction. Two days later, on August 12, a hearing was held where the court considered four factors to determine whether to grant a TRO or injunction.

Citing Roe v. Wade, the court first found the "right to privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 93 S.Ct 705, 727 (1973). Second, the court was convinced that a delay would unnecessarily increase health risks imposed on plaintiff who would suffer harm absent the injunction.

Third, the court noted that plaintiff would pay the cost of the medical ...

Reconsidering Restorative Justice: The Corruption of Benevolence Revisited?

Condensed by David Rhys

Adapted from an article by Sharon Levrant, Francis T. Cullen, Betsy Fulton and John F. Wozniak which appeared in the journal Crime & Delinquency, Vol. 45 No. 1, January 1999.

Three decades have passed since the rehabilitative agenda was pushed aside for crime control policies rooted in a "get tough" philosophy. This orientation has led to harsh forms of punishment, including a dramatic increase in incarceration. Even community-based sanctions are "unabashedly fierce," emphasizing rigorous surveillance and the enforcement of increasingly stringent conditions of supervision.

It is tempting to portray the penal harm movement as having achieved complete hegemony over correctional policies. It is a powerful way of thinking with which few policy makers publicly take issue. Penal harm ideology has undermined but not stamped out alternative perspectives.

Surveys of the public reveal that citizens favor early intervention programs over prisons as a solution to crime, are willing to use community sanctions as an option instead of incarceration, and continue to support rehabilitation as an important goal of corrections. In accordance, the space still exists for progressive policies to be put forth which challenge the idea that harming offenders is the only, or the best, means of controlling crime.

In this context, restorative justice is emerging as an increasingly popular alternative to penal harm or "getting tough". The primary focus of restorative justice is on the ways in which crime disrupts relationships between people within a community. In its purest form, it is an informal approach to repair these relationships. Thus, it attempts to hold offenders accountable through both shaming and reintegration processes in hopes of strengthening community bonds and providing crime victims with an opportunity to regain their personal power.

The Vermont DOC has been restructured to include two primary service tracks: the risk management service track is designed to provide intensive treatment and supervision to high-risk felony offenders, and the reparative service track requires low-risk, nonviolent offenders to make reparation to the victim and the community. Reparative boards have been instituted in the reparative service track as a means of actively involving community members in the justice process. These boards consist of five citizen-volunteers from the offender's respective community who are responsible for meeting with the offender to develop a reparative agreement that requires the offender to (1) restore and make whole the victim(s) of his or her crime, (2) make amends to the community, (3) learn about the impact of the crime , and (4) learn ways to avoid re-offending.

Two central questions in the restorative justice movement must be explored. First, commentators have pointed out that correctional reforms implemented with good intentions often have been corrupted to serve less admirable goals and interests. Thus despite its benevolent possibilities, will restorative justice programs be corrupted and have untoward, unanticipated consequences? Second, given the current knowledge about changing offender behavior, there is little reason to conclude that restorative justice can have a meaningful effect on recidivism. This latter issue is critical, given that a perceived failure to reduce recidivism contributed to the decline of rehabilitation and boosted the legitimacy of punitive correctional policies in recent years.

The Corruption of Benevolence?

In the 1970's, many liberals joined with conservatives in rejecting rehabilitation and in endorsing reforms, especially determinate sentencing, that constrained the discretion exercised by criminal justice officials. Believing that these reforms would result in increased justice, liberals largely overlooked the possibility that conservatives would use the rejection of the rehabilitative ideal as a means to achieve their goal of getting tough on offenders. In hindsight, it now appears that the liberals' benevolent hopes of doing justice were corrupted by conservatives who succeeded in passing harsh laws which ultimately increased the punishment and the harm done to offenders.

In endorsing restorative justice, liberals once again are embracing a reform also being trumpeted by conservatives. In doing so, it seems prudent to consider the lesson of the anti-rehabilitation movement: Progressive sentiments are no guarantee that reforms will not be corrupted and serve punitive ends. There are four possible unanticipated consequences of restorative justice: (1) it will serve as a means of getting tough on offenders; (2) it will not be restorative for victims, offenders, or communities; (3) it will be more of a symbolic than substantive reform; and (4) it will reinforce existing race and class biases besetting the criminal justice system.

Getting Tough Through Restorative Justice

According to progressive advocates, restorative justice offers potential benefits to offenders, including the opportunity to reconcile with their victims, a less punitive sentence, and the chance for reintegration into society. However, six considerations suggest that restorative justice may not achieve its progressive goals and, in fact, may increase the extent and harshness of criminal sanctions.

First: Restorative justice systems lack the due process protections and procedural safeguards that are awarded to offenders in the more formal adversarial system: counsel are generally discouraged from attending mediation hearings and the informality of the system contributes to more lenient rules of evidence.

Second: Despite the rhetoric of restoration, offenders may be coerced into participating in the mediation process because of perceived threats of harsher punishment if they refuse to do so. The problem of ...

FTCA Claims May Be Brought Only Against U.S.

A federal district court in North Carolina held that Federal Tort Claims Act (FTCA) claims could be brought against the United States, but not against the Federal Bureau of Prisons (BOP), a correctional institution, or the institution's medical staff. The court also held that under the FTCA venue was proper in the district wherein the acts or omissions complained of occurred.

On October 4, 1994, federal prisoner Fernando Zapata was informed that he tested positive for purified protein derivation and was treated for that condition. Zapata complained that the medicine was making him sick but staff continued to give it to him.

Zapata's health deteriorated and he experienced difficulty eating, talking, and performing regular bodily functions. Medical staff diagnosed him as psychotic and/or paranoid. Due to his condition, Zapata was transferred on November 4, 1994, to the Federal Correctional Institution in Butner, North Carolina, then transported to Durham Regional Hospital where he was pronounced dead.

Zapata's mother, Tomasa Lopez, filed an FTCA action in the United States District Court for the Middle District of North Carolina, against the United States Government, the BOP, FCI-Allenwood, and medical staff of that facility, alleging wrongful death and negligent infliction ...

Post-Conviction Update

Prepared by Walter M. Reaves, Jr.

Habeas Corpus

Addressing an issue which has not been consistently decided by the circuits, the Fifth Circuit in United States v. Thomas, 203 F.3d 350 (5th Cir. 2000), held that for purposes of limitations in a §2255 petition, the decision is final when the 90 days for filing a petition for certiorari expires, if no petition is actually filed. The Tenth Circuit reached the same decision in United States v. Willis, No. 98-3244 (2/1/00).

In United States v. Clark, 203 F.3d 358 (5th Cir. 2000), the Court addressed the question of when a federal defendant can attack a prior conviction used to enhance his sentence. The Court held that where the defendant was not in custody on the prior sentence, and had exhausted his state remedies, he could attack the convictions in a proceeding under §2255. The key to this decision is that the defendant had exhausted his remedies in State Court. Had he not done this, the issue could not have been considered. Addressing the same issue, the Seventh Circuit reached a different result. In Ryan v. United States, 214 F.3d 877 (7th Cir. 2000), the Court held ...

NY School-Age Prisoners Entitled to Educational Services

New York City school-age prisoners were granted declaratory judgment establishing defendants' liability for failure to provide adequate general and special educational services to class members at the Rikers Island facility.

Plaintiffs in this class action § 1983 suit are 16- to 21-year-old prisoners in the custody of the New York City Department of Corrections (DOC) at 16 jails including 10 facilities on Rikers Island. The majority of the class members are pre-trial detainees: others are serving sentences of up to one year. Defendants are the DOC, the New York City Board of education, city officials, and the State Education Department Commission.

Plaintiffs estimate that approximately 2,800 imprisoned children were eligible for educational services when the case was filed in 1996. They complain that class members received limited or no educational services for significant periods of time, that approximately 40% of the class required special education due to disabilities, and that DOC violated the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. § 1400, the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, the New York State Constitution, statute law, and regulations.

Defendants sought to have plaintiffs' claims dismissed for failure to exhaust administrative remedies as required ...

County Jail Time Returned to CO Lifers

The Colorado Supreme Court has held that prisoners sentenced to life imprisonment are entitled to presentence confinement (PSC) credits for the time they spent in the county jail before sentencing.

Until 1977, life sentences in Colorado were a minimum of ten years to parole eligibility. From 1977 to 1985, this minimum was twenty years; and from 1985 to 1990, forty years. From 1990 on, life sentences are without parole. See:C.R.S. §17-22.5-104.

In 1987 the Colorado Court of Appeals interpreted this statute to mean life sentences begin at sentencing. See: Derrick v. Colorado Board of Parole, 747 P.2d 969 (Colo. App. 1987) (10-year life). The Colorado Department of Corrections then revoked all lifer's PSC credits. In 1997 this issue was again before the Colorado Court of Appeals. Relying on Derrick, the Court denied relief. See:People v. Payseno, 954 P.2d 631 (Colo. App. 1997) (20-year life).

While the Colorado Supreme Court declined to review the Derrick and Payseno decisions, they did agree in 1999 to treat the state habeas corpus appeal of Paul Fields on this issue as a petition for a writ of mandamus. The Court then harmonized C.R.S. §17-22.5-104 ...

Male NJ Guard's Sexual Harassment Suit Settled for $425,000

On December 6, 1999, the New Jersey Department of Corrections agreed to pay $425,000 to Mid State Correctional Facility employee Thomas Ferri, 55, to settle his sexual harassment suit against the prison. Ferri, an internal affairs investigator at the prison, claimed he was sexually harassed by his supervisor, Deborah ...

Detainee's Excessive Force Claim Requires Trial

The Federal District Court for the Southern District of New York denies dispositive motion to dismiss excessive force and religious discrimination retaliation claims brought against Putnam County Jail Sheriff and two guards by pretrial detainee Kareem Ali.

Ali alleged that while he was using a microwave to warm his coffee and pizza, guard Dalo ordered him back to his cell to complete a term of cell detention; that he complied with the order immediately, but while returning to his cell, guards Dalo and Szabo viciously attacked him causing painful bruising and swelling to his hand. Guards Dalo and Szabo alleged that Ali was the aggressor and that they only used force sufficient under the circumstances.

Excessive force claims brought by a post-arraignment, pre-conviction pretrial detainee must be analyzed under the Fourteenth Amendment's substantive due process standard. The test there is whether the conduct shocks the conscience. Applying the facts in the light most favorable to Ali, the court concluded that a material issue of fact existed as to whether the force used was excessive. If Ali was the aggressor, then the force may be justified. However, if Ail was complying with the order, the force used would not be ...

Slave Labor Supplanting Welfare State

By Ronald Young

Texas has a history rooted in the Southern antebellum traditions of religion and slavery. One of the cornerstones of Texas governor and presidential hopeful George W. Bush's "compassionate conservatism" is what he calls faith-based social programs. Bush is of the belief that religious organizations are best suited for delivering human services to the poor.

In modern day Texas, many of these faith-based organizations receive foodstuffs from regional food banks for distribution to the needy. And in keeping alive Texas' rich Southern heritage, slave labor-prison slave labor-is being used in conjunction with the food banks to glean, harvest, and prepare food for the state's hungry masses.

Though Texas is ranked 47th among the 50 states for delivery of social services, and 50th in overall per capita spending, it is 9th in per capita spending for prisons, according to The Nation. Texas incarcerates more of its residents -- 7.2 per 1,000 -- than any other state. While the Lone Star State continues to cut welfare rolls, revenues for operating the massive prison system have grown to approximately $2.6 billion annually.

Currently the Texas Department of Criminal Justice (TDCJ), which operates the state's prisons, state jails ...

Texas Prisons Heat Up As Parole Hopes Fade

By Ronal Young

The summer continued to heat up in the Texas prison system even before the season officially began.

On May 5, 2000, guards at the Stiles prison near Beaumont overpowered an armed male prisoner after he briefly held two female medical workers hostage in a failed effort to obtain money and cigarettes. Robert Richardson, 32, is serving a life sentence plus twenty-five years for burglary, assault, and possession of a weapon in a penal institution. During negotiations, Richardson told prison officials he wanted $100 cash, cigarettes-which are banned at all Texas prisons-and improved conditions of confinement, said TDCJ spokesperson Larry Todd.

Richardson was holding the hostages in a glass-walled psychiatric evaluation room when prison guards fired tear gas into it as he attempted to release a hostage. Two prison guards and Assistant Warden Rick Thompson sustained stab and slash wounds which were described as not life threatening.

During a one week period in early June, two prison guards on the Connally Unit near Kennedy were hospitalized after being attacked by prisoners in two separate incidents.

On June 7, 2000, Irene Fonseca, 35, a prison guard at the Connally Unit, was attempting to confiscate a contraband coffee pot that ...

Disabled Prisoner Survives Summary Judgment

A federal district court in Kansas held that jail officials were not entitled to qualified immunity with respect to their treatment of a double amputee prisoner, and denied defendant's motion for summary judgment on all claims.

Tracy Schmidt, without both legs below the knees, was confined in Cowley County Jail in Kansas for approximately nine months. During that time, he was denied a wheelchair and other accommodations for his disability, forcing him to crawl and pull himself about the jail on the floor which caused him pain and humiliation.

Schmidt filed suit, alleging that jail officials violated the Eighth Amendment, the Americans with Disabilities Act, (ADA), the Rehabilitation Act of 1973 and the state law tort of intentional infliction of emotional distress. Defendants then filed a motion for summary judgment.

The court denied defendants' motion for summary judgment on plaintiff's Eighth Amendment claim, concluding that a reasonable jury could find that defendants' treatment of Schmidt fell short. The court rejected defendants' claim of qualified immunity, concluding that the Constitutional prohibition against deliberate indifference to the medical and other basic needs of prisoners was clearly established at the time in question.

The court denied summary judgment with respect to ...

Without Running Water

Without running Water

By David M. Reutter

PLN previously reported that Florida's Martin Correctional Institution (MCI) had been evacuated as a result of bad water. [See PLN, May, 2000: Bad Water Causes Florida Prison Evacuation.] That report was based solely upon media reports that relied exclusively upon misinformation by MCI officials.

The media was unable to report that bad water at MCI was a daily fact for over 7 months preceding the October, 1999 evacuation. In March, 1999 MCI officials placed a sign at the employee/visitor entrance informing them not to drink the water at MCI. To make this possible officials installed bottled water dispensers in the guard stations, and sold bottled water in the visiting park vending machines. Prisoners were not informed of the bad water, and bottled water was not available in the prisoner canteen.

As a result of the bad water there were periodic epidemics of diarrhea among the prisoners.

The general population cells at MCI have white ceramic toilets that are used by the prisoners to determine if the water is safe to drink. If the water had a yellowish tint, it was a bad water day. Boiled water notices were a regular event ...

News in Brief

News In Brief

Australia: On August 28, 2000, 100 Afghan and Iraqi asylum seekers rioted at the Woomera detention center and set fire to four buildings. The detainees are seeking political asylum after arriving illegally in the country. News services did not report the causes of the uprising.

Brazil: On August 17, 2000, a clash between rival gang members in a maximum security prison in the nation's capital of Brasilia left 11 dead and 2 wounded. On August 13, 2000, a suspected drug dealer was killed and his fellow gang members decided to avenge his death. According to Cicero Antonio de Araujo, the prison's security director, rioting prisoners seized the prison yard, killing 11 prisoners, stacked the bodies in a bathroom and set them on fire using old mattresses as kindling. De Araujo noted that some of the "dead" may have been burned alive. Several hundred riot police later stormed the prison and restored order.

CA:On August 28, 2000, Lee Beck, a San Quentin prison guard was jailed on assorted drug charges stemming from his smuggling of drugs into the prison. Beck's arrest was the result of a California Department of Corrections internal affairs investigation. Beck ...

$78,000 Damages and Fees Awarded in KS Kosher Diet Suit

A federal district court in Kansas awarded a prisoner $30,622 in attorneys' fees and $1,200 in costs and expenses. The court held, however, that the Prison Litigation Reform Act (PLRA), required the court to apply 25 percent of plaintiff's damages award to the fees.

Jimmy Searles, a ...

Discipline for Correspondence Containing Legal Advice Vacated; US S.Ct. Grants Review

The Ninth Circuit Court of Appeals held that punishment imposed upon a prisoner law clerk for sending a letter containing legal advice to another prisoner was an exaggerated response, which violated the law clerk's First Amendment rights.

While confined in the Montana State Prison, Kevin Murphy has worked as a law clerk. In early 1995, he learned that fellow prisoner Pat Tracy had been charged with assaulting a guard and requested his assistance.

Because Tracy had been transferred to the prison's maximum security wing, Murphy could not visit him directly and was limited to communicating with him in writing. On February 16, 1995, Murphy sent Tracy a letter containing legal advice related to the assault charge. But the letter was intercepted and read by prison officials.

Having never seen the letter, Tracy ultimately pleaded guilty to the assault charge without being made aware of the information in Murphy's letter. Murphy was subsequently punished for the content of the letter.

Murphy filed a class action suit on behalf of all of the prison's law clerks, alleging that his discipline: (1) violated the First Amendment; (2) abridged the right of prisoners to access to the courts; and (3 ...

From the Editor

By Paul Wright

PLN recently gained the ability to process credit card orders for books, subscriptions, and donations. PLN's office phone number is on page two of every issue for those who wish to subscribe, renew their subscriptions, purchase books or just make a donation using their credit card. PLN accepts Visa and Master Charge.

For the past nine months or so PLN has been distributing the great book Lockdown America by Christian Parenti in hard cover for $25. Lockdown America has just been released in paperback and PLN is distributing it for $15 per copy. We no longer have copies of the hardcover book. If you haven't yet read Lockdown America it is well worth reading for its excellent political analysis and in-depth factual background on the modern American police and prison state. Look for ordering information in PLN's book ad in this issue.

In mid-September PLN settled its censorship suit with the Nevada Division of Prisons (DOP). For almost a year PLN itself and all mail from PLN was totally banned in all Nevada prisons under the guise that it was "inmate mail." Under the terms of the settlement PLN is once again allowed entry ...

Washington Radiation Suit Settled for $2.4 Million

By Hans Sherrer

On March 14, 2000, a classaction lawsuit by Washington State prisoners who participated in radiation experiments from 1963 to 1971 was settled for $2.4 million.

Sixty-four prisoners at the Washington State Penitentiary at Walla Walla were involved in radiation experiments conducted on their testicles. The men ...

Irradiation Limitation Remains Unsettled

By James Quigley

The U.S. court of appeals for the Ninth Circuit held that factual issues, as to when a former prisoner was, or should have been, aware of his injuries from radiation experiments, precluded summary judgment on statute of limitation grounds. The Court further held that some of the defendants were, nevertheless, entitled to qualified immunity.The judgment of the district court was reversed in part.

This case involves x-ray radiation experiments conducted on unsuspecting state prisoners during the 1960's, under the auspices of the Atomic Energy Commission (AEC). For a more detailed discussion of such experiments, see Cheaper Than Lab Rats in the March 1999 issue of Prison Legal News.

This is a class action in which Harold Bibeau and his wife are the representative plaintiffs. In the 1960's, Bibeau was a prisoner confined to the Oregon State Penitentiary. During that time he was a paid volunteer in experiments involving testicular irradiation The tests were sponsored by the AEC, and conducted by Dr. Carl Heller of the Pacific Northwest Research Foundation.

After signing a consent form, Bibeau submitted to a testicle biopsy, followed by testicular exposure to 18.5 rads of x-ray radiation, and several ...

Disabled Prisoner Survives Summary Judgment

A federal district court in Kansas held that jail officials were not entitled to qualified immunity with respect to their treatment of a double amputee prisoner, and denied defendant's motion for summary judgment on all claims.

Tracy Schmidt, without both legs below the knees, was confined in Cowley County Jail in Kansas for approximately nine months. During that time, he was denied a wheelchair and other accommodations for his disability, forcing him to crawl and pull himself about the jail on the floor which caused him pain and humiliation.

Schmidt filed suit, alleging that jail officials violated the Eighth Amendment, the Americans with Disabilities Act, (ADA), the Rehabilitation Act of 1973 and the state law tort of intentional infliction of emotional distress. Defendants then filed a motion for summary judgment.

The court denied defendants' motion for summary judgment on plaintiff's Eighth Amendment claim, concluding that a reasonable jury could find that defendants' treatment of Schmidt fell short. The court rejected defendants' claim of qualified immunity, concluding that the Constitutional prohibition against deliberate indifference to the medical and other basic needs of prisoners was clearly established at the time in question.

The court denied summary judgment with respect to ...

Dismissal of Medical Claim Reversed After Prisoner's Death

The Court of Appeals for the Tenth Circuit held that a district court erred when it dismissed a lawsuit, filed by the estate of a Wyoming prisoner, that claimed prison officials showed a deliberate indifference to his medical needs relating to diabetes and hypertension.

In 1996, Wyoming prisoner Jody Mapp suffered from diabetes and hypertension. He was denied insulin in June by one prison doctor despite a prescription by another prison doctor. This denial lasted over a year and ended only after Mapp suffered a heart attack in 1997. Mapp then filed a §1983 complaint. Though he had three or more previous complaints dismissed as frivolous or for failing to state a claim, in December of 1997 the magistrate judge granted in forma pauperis status based on Mapp alleging imminent danger of serious physical injury.

After numerous pleadings were filed, Mapp moved in March of 1998 for a court ordered physical examination. He claimed his life was in danger and he was afraid of losing his sight, suffering limb amputations, and heart problems. A month later Mapp underwent quadruple bypass surgery. That August, after determining Mapp's allegations amounted to just a disagreement with his medical treatment, the District Court ...

$35,000 Awarded to CA Prisoner in Beating Suit

On October 14, 1999, U.S. district court judge Susan Illston ruled that three Pelican Bay state prison guards had violated the Eighth amendment rights of prisoner Ricky Gray. Gray had filed suit under 42 U.S.C. § 1983 claiming that while being unhandcuffed one of the guards pulled on ...

MI Hearing Officer Fired for Following Law

The Sixth Circuit Court of Appeals held that fact issues existed as to whether a major misconduct decision maker employed by the Michigan Department of Corrections (MDOC) was retaliated against and fired, for failing to maintain a 90% misconduct conviction rate and for filing a grievance based on race factors.

Everett Perry, a black man and licensed attorney, was hired by the MDOC in 1988 as decision maker for major misconduct disciplinary hearings. Perry was fired five years later. Thereafter, Perry filed a lawsuit alleging prison officials violated his rights under, inter alia, the First and Fourteenth Amendments and Michigan's Elliott-Larsen Civil Rights Act (ELCRA).

The facts disclosed that the deputy director for the MDOC decided in the 1980's that not guilty/dismissal rates greater than 10% were to be viewed as a trouble signal. Perry's not guilty/dismissal rate hovered between 17% and 18%. Perry's performance was addressed through departmental citations. Specifically, on nineteen occasions in sixteen months Perry was cited for conduct, namely typographical errors, failing to correct an incorrect prisoner number written by a prison guard, for re-listing a case to get physical evidence and on one occasion for replacing the word "or ...

Private Citizen Liable for Jail Slavery Under §1983

Private Citizen Liable for Jail Slavery Under §1983

A federal district court in Georgia held that a private citizen who exercises authority over a county prisoner can be held liable under 42 U.S.C. §1983 as a state actor.

Lamar County, Georgia prisoner, James Marshall Mauldin, Jr., filed suit against James Burnette, a private citizen; Frank Monaghan, Sheriff, Lamar County; Katherine Martin, Probate Judge; and Lamar County, Georgia, alleging he was removed from jail and forced to work without pay.

Sheriff Monaghan informed Mauldin he was to be released from his jail sentence on October 21, 1996. However, Mauldin was arraigned that day on an unrelated misdemeanor charge and was not released. Monaghan, upon learning this, arranged for Mauldin to appear before Judge Martin.

Upon arrival in chambers, Burnette, who is Martin's brother, informed Mauldin that he had been ordered to work with Burnette as part of his rehabilitation. When Mauldin protested to Judge Martin, she replied, "I'm the Probate Judge of this county."

From November 11, 1996 through December 16, 1996, Burnette signed Mauldin out of jail on Mondays, returning him on Fridays. Mauldin was forced to work with employees of Burnette's Construction Company, cutting ...

$586,000 to Settle KY Jail Strip Search Suit

On January 25, 2000, Jefferson County, Kentucky, announced it would pay $586,000 to 31 people strip searched after being booked into the Jefferson county jail on minor traffic offenses in 1993. Previously, PLN reported that Jefferson County had paid $11.5 million to settle a class action lawsuit by ...

$12,000 Awarded in NY Slip and Fall

On July 15, 1999, the New York court of claims awarded pro se New York state prisoner Hamilton Thompson $12,000 for past pain and suffering. In 1996, while imprisoned at the Oneida Correctional Facility, Thompson slipped and fell in a puddle of water in his cell.

Prior to falling ...

Withholding Interest Does Not Violate Takings Clause

A federal district court in California held that prison officials did not violate the Takings Clause by failing to pay interest on funds deposited by prisoners into non-interest bearing "Inmate Trust Accounts" (ITAs). The court also held that: applying interest earned on excess ITA funds to the Inmate Welfare Fund was not an unconstitutional taking; prison officials were entitled to qualified immunity; and prisoners failed to establish an equal protection violation. Accordingly, the court granted defendants' motion for summary judgment and denied the plaintiffs' motion.

Several current and former state prisoners brought a §1983 action, alleging that the California Department of Corrections, (CDC), violated the Takings Clause and equal protection clause by failing to pay constructive interest on funds deposited in ITAs.

In 1997 the district court held that plaintiffs did not possess a property interest in the interest earned on money placed in ITAs and dismissed the complaint without leave to amend. See: Schneider v. California Department of Corrections, 957 F.Supp. 1145 (N.D. Cal. 1997).

Plaintiffs appealed and the Court of Appeals for the Ninth Circuit reversed and remanded, holding that plaintiffs possessed a constitutionally cognizable property right in the interest earned on funds deposited into the ...

Retaliatory Denial of WA Parole Decision Vacated

The Washington state Supreme Court, sitting En Banc held that Washington's Indeterminate Sentencing Review Board (ISRB) improperly considered a history of filing litigation and grievances against prison officials, in finding that a prisoner was unfit for parole.

During a 1997 parole consideration hearing for Lincoln Addleman, the ISRB had before it detailed information concerning numerous personal grievance actions and litigation that Addleman had filed against prison officials. Ultimately, the ISRB denied Addleman parole. He then filed a personal restrain petition in the Washington Court of Appeals, which was denied. Addleman then petitioned for review by the Supreme Court and the Court granted review "on the limited issue of whether the ISRB improperly considered Addleman's litigation and grievances activities when finding him unfit for parole."

The Court applied the three-step test announced in Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999)(En Banc), for determining retaliation: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken: and (3) there is at least a partial causal relation between the protected conduct and the action.

The Court then found that "it is clear that prisoners have a wellestablished constitutional right to access the courts, based in ...

Administrative Remedies Exhaustion Tolls LA Statute of Limitations

By Ronald Young

The court of appeals for the Fifth circuit held that state administrative proceedings a prisoner was required to exhaust tolled Louisiana's one-year prescriptive period for filing a civil rights claim. The court also held that the prisoner stated a claim of cruel and unusual punishment in his claim for denial of medical treatment.

Mark Harris, a Louisiana state prisoner, sued three prison medical staff members under 42 U.S.C. § 1983, alleging deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Harris exhausted the administrative procedures available within the state prison system which included an appeal in state court, and finally filed his federal suit.

Because Harris did not file his federal suit until 17 months after the events at issue, the district court concluded that his claims were barred by the one-year prescriptive period applicable to federal civil rights suits filed in Louisiana.

Federal courts borrow state statutes of limitations to govern claims brought under 42 U.S.C. § 1983. Under federal law, a Section 1983 action generally accrues when a plaintiff knows or has reason to know of the injury which is the basis of the action. See: Jackson v ...

9th Circuit Upholds Ban on Sex-based Publications; Requires Due Process

9th Circuit Upholds Ban on Sex-based publications; Requires Due Process

Against a First Amendment challenge, the Ninth Circuit has upheld a prison regulation banning sex-based publications depicting penetration. The Court also held that prisoners have a Fourteenth Amendment due process liberty interest in receiving a notice that incoming mail is being withheld by prison authorities. The court also discussed the evidentiary burden on challenged prison rules.

Raymond Frost, a prisoner in the Arizona Department of Corrections (ADOC), subscribed to Gallery and Penthouse magazines. Between 1994 and 1996 Frost had several issues of these magazines rejected by the facility mailroom. Some rejections were without explanation while others were based on "showing penetration" or "material which, in the Warden's opinion, pose[d] a threat to the safe, secure and orderly operation of the prison," or, generally, "unauthorized property." On further review, administrators continued the rejections based on the magazines containing various forms of penetration and advertisements soliciting "sexual behavior that poses a threat to female staff." By 1996 Frost was no longer receiving any issues of Penthouse nor was he receiving any rejection notices.

Frost also became a member of a music club, BMG, where he accepted an offer for eight ...


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