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Prison Legal News: November, 2000

Issue PDF
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 Health 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. Without Running Water (p 19)
  18. Disabled Prisoner Survives Summary Judgment (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. $35,000 Awarded to CA Prisoner in Beating Suit (p 26)
  27. Dismissal of Medical Claim Reversed After Prisoner's Death (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 ...

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 ...

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 ...

$16 Million Agreement to Revamp NJ Prison Mental Health 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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 ...

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 ...