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Prisoner Education Guide

Prison Legal News: December, 2000

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Issue PDF
Volume 11, Number 12

In this issue:

  1. Dying For Profits: CMS and the Privatization of Prisoner Health Care (p 1)
  2. CMS Fined Nearly $1 Million in Virginia (p 5)
  3. Fired Washington Parole Officer Wins $250,000 Settlement (p 6)
  4. Medical Claims Against CMS to be Refiled in State Court (p 7)
  5. CA Court Overrules Parole Denial (p 8)
  6. Controversy Surrounds Letourneau Tape (p 8)
  7. WA Civil Commitment Ruling Published (p 8)
  8. Perpetuating Crime, Consolidating Power (p 9)
  9. Actual Innocence--Five Days to Execution and other Dispatches From the Wrongly Convicted (p 10)
  10. Stun Gun Death in VA Prison (p 11)
  11. Alabama Officials Guilty in Phone Scam (p 12)
  12. Error to Dismiss Suit for Inability to Pay Filing Fee (p 12)
  13. PLRA Physical Injury Rule Does Not Apply to Mail Claims (p 12)
  14. Sandin Limits Property Interests (p 13)
  15. Pro Se Tips and Tactics (p 14)
  16. Dismissal for Texas Prisoner's Failure to State Facts of Prior Suits (p 16)
  17. Excessive Force Claims Require Administrative Exhaustion (p 17)
  18. Sexual Assault, Beatings State Claim (p 17)
  19. En Banc Sixth Circuit Addresses Mental Heath Care (p 18)
  20. WA 35% Seizure Statute Ruled on by Ninth Circuit (p 19)
  21. Notes From the Unrepenitentiary: CA Prisoners Denied Medical Care (p 22)
  22. News in Brief (p 24)
  23. Death as a Salesman: Benneton Ad Campaign Comes to Death Row (p 26)
  24. Family Impact of Out of State Transfers Immaterial (p 26)
  25. Illinois Supermax Hunger Strike (p 28)
  26. Idaho Prisoners Can Sue for On-the-Job Injuries (p 30)
  27. False Evidence Meets Some Evidence Standard (p 30)
  28. Attorney Fees Awarded in Challenge to Nevada Shooting Policy (p 30)
  29. DC Circuit Revives Hewitt v. Helms (p 31)
  30. No Immunity for Private Prison Physician (p 32)
  31. PA Prisoner Awarded $300,000 in Guard Beating (p 32)

Dying For Profits: CMS and the Privatization of Prisoner Health Care

By Ronald Young

Marvin Johnson, a 28-years-old diabetic, required 100 units of insulin per day to stay alive. On the morning of July 27, 1995, he was arrested and jailed in Little Rock, Arkansas for driving an acquaintance's red Ford Escort without permission. Less than three days later, Johnson lapsed into a coma in his jail cell and died for lack of insulin.

Johnson was charged with misdemeanor unlawful use of a vehicle but ended up being sentenced to death. What was criminal in Johnson's case was the tortured death he suffered as a result of the blatant disregard to his pleas for help by the jail's medical provider Correctional Medical Services (CMS), based in St. Louis, Missouri. Johnson died on July 29, 1995, early in the morning of his third day in the Pulaski County Jail. In his 30-hour wait for insulin, Johnson told three nurses and six sheriff's deputies that he was an insulin-dependent diabetic and needed medicine, according to an investigative report reviewed by the St. Louis Post-Dispatch.

Despite his pleas for help, CMS staff denied Johnson his life-sustaining shots, claiming that they could not confirm his prescription because Johnson was vague about ...

CMS Fined Nearly $1 Million in Virginia

Correctional Medical Services (CMS) contracts with the Virginia Department of Corrections (VDOC) to provide medical care to some of its 30,000 prisoners. In a 13-month period starting in January 1999 the VDOC levied nearly $1 million in fines against CMS for failing to live up to its contract, according to a Virginia state auditor's report.

From July 1998 to December 1999, the state of Virginia paid CMS $28 million to provide medical services at six of the state's prisons. The fines were levied for violations such as poor record keeping, failing to triage prisoners correctly (i.e. denying medical treatment to some prisoners), failing to properly assess prisoners' medical conditions and failure to provide timely referrals.

The company was fined $162,471 during the four month period from October 1999 to January 2000 for deficiencies cited at just one "supermax" facility, Wallens Ridge State Prison. State auditor Walter J. Kucharski noted that CMS failed to provide Wallens Ridge prisoners with a dentist for three months and has never had an optometrist on duty there, resulting in more than 130 prisoners awaiting eye-care services.

In the report released in July 2000, Kucharski urged the state to increase its ...

Fired Washington Parole Officer Wins $250,000 Settlement

Washington state parole officer Barbara A. Nelson was fired in 1998 after the state was hit for more than $6.4 million to pay off lawsuits alleging negligence for her failure to property supervise parolees. Three men whose cases Nelson handled killed three people, including a high school cheerleader, a ...

Medical Claims Against CMS to be Refiled in State Court

By Matthew T. Clarke

A federal district court in Illinois has dismissed the breach of medical care duty suit of a suicide prisoner's estate against Correctional Medical Services of Illinois (CMS), but encouraged the refilling of the suit in state court.

Ethel Hare was an Illinois prisoner at the Kane County Adult Correctional Center (the jail). When admitted to the jail, Hare was HIV positive and suffering from chronic liver disease, liver cirrhosis, and Hepatitis B and C. The sheriff had contracted with CMS to provide prisoner medical services at the jail.

Five months after being arrested, Hare complained of stomach ailments. She was seen by a jail doctor, who ordered her transferred to a hospital. She remained at the hospital for two days, suffering from abnormal coagulation, and was diagnosed with portal hypertension with ascites, jaundice, coagulopathy, HIV, and Hepatitis B and C. Upon release, the hospital physician noted that Hare should be closely monitored, continue her medications, receive a post-release follow up and have her chemistries monitored.

Hare's condition was initially stable. She saw a jail doctor who noted she was still slightly jaundiced and had been scratching her abdomen. Two days later, she began vomiting ...

CA Court Overrules Parole Denial

By John E. Dannenberg

The CA Court of Appeals affirmed the Los Angeles superior court's ruling that there was "no evidence" to support the Board of Prison Terms' (BPT) parole unsuitability finding for a 2nd degree murderer and ordered the BPT to convene a new suitability hearing within 30 days. The BPT was ordered to "render a new determination in strict accordance with both the letter and the spirit of the view expressed in this opinion" by the Court of Appeal, which emphasized that the superior court retained jurisdiction over the matter, including power to enforce contempt of its orders.

Sharply rebuking the BPT, the court "flatly reject[ed] the Board's contention that (a) Rosenkrantz's only remedy is the continuing charade of meaningless hearings, and (b) that the superior court lacks the power to compel the Board to follow the law." However, the court declined (on ripeness grounds) to rule on the BPT's counter-complaint that the court was without jurisdiction to "dictate the result that must be reached."

Of note to the thousands of CA lifers who are routinely denied parole is the court's determination that absent extrinsic evidence in the hearing record, a BPT ...

Controversy Surrounds Letourneau Tape

A Washington DOC investigator allegedly left his job at the state women's prison in Purdy with a souvenir: a tape recording of Mary K. Letourneau talking on the phone with her attorney.

After starting a new job at the state Attorney General's office in 1998, the investigator played the tape to entertain co-workers, sources inside the AG's office told the Seattle Times.

Robert McGuire, who was a DOC "Intelligence and Investigations Officer" at the state reformatory before assuming the same position at the Purdy prison, denies ever having the tape. But two co-workers say they heard it, and a third says she turned down an offer to hear it.

"He was right over there, playing it loud, and they were making jokes," said Steve Schrum, an auditor who says he heard the tape twice.

On the tape, the witness say, Letourneau complained to her lawyer about a comment her estranged husband made on a TV talk show. She asked why she couldn't get visitation rights to see her children, and her lawyer told her a convicted child molester loses that option.

Joseph Gragnelli, a fellow investigator, says he reported the tape-playing incident to his boss, Curtis ...

WA Civil Commitment Ruling Published

In the September, 2000 issue of PLN we reported on a ruling by Judge William Dwyer of Seattle who held the Washington Special Commitment Center in contempt for failing to provide treatment and transitional release housing for civilly committed "sexually violent predators." The court's ruling was recently published at: Turay v. Seling, 108 F. Supp.2d 1148 (WD WA 2000). PLN will report any developments in the underlying contempt proceedings against the state of Washington in that case.

Perpetuating Crime, Consolidating Power

Perpetuating Crime, Consolidating Power: The Race & Class Logic of Mass Incarceration

An Interview with Paul Wright

by Janet Stanton

Arthur Stamoulis's (Common Courage Press) audiotaped interview with Paul Wright offers the listener a concise overview of the most disturbing issue confronting our time--the mass incarceration and despicable treatment of Americans by the criminal "justice" system. Paul Wright is a leading expert, his insight stemming not only from his work as editor of Prison Legal News and co-editor of The Celling of America, collecting and culling vast amounts of first hand research, news reports and court documents on a daily basis, but also from his experience as an incarcerated person.

The interview probes all major aspects of mass incarceration and the results for prisoners--results like censorship, lack of rehabilitation efforts, proliferation of control units, dismal medical care, openly racist guards, lack of access to courts, libraries and lawyers, prisoner slave labor and the "third world labor model" it establishes, and private prisons. These are addressed in the interview and are covered in depth in The Celling of America, for which the interview serves as an accompaniment.

The hard-hitting and straightforward analysis of the race and class "logic" are what sets ...

Actual Innocence--Five Days to Execution and other Dispatches From the Wrongly Convicted

By Barry Scheck, Peter Nuefeld, and Jim Dwyer

Review by Roger Hummel

Since 1963, at least 381 murder convictions across the nation have been reversed because of police or prosecutorial misconduct yet not one of the prosecutors who broke the law was ever convicted or disbarred.

Twenty-seven percent of those wrongfully convicted had subpar or incompetent legal help including a Kentucky capital case defendant whose attorney gave his business address as Kelly's Keg, a local tavern.

Sinister prison snitches who earned reduced sentences by fabricating fellow prisoners' "admissions" to unsolved crimes were a factor in 25% of the convictions which were later reversed.

Authors Scheck, Neufeld, and Dwyer expose these and other horrors in Actual Innocence, a catalog of true stories drawn from more than 60 men who were wrongfully imprisoned. Detailed case histories describe how a dozen innocent men were convicted by corrupt prosecutors, jailhouse snitches, junk science, mistaken identification, false testimony, bad layering, and other defects in our criminal justice system.

The authors combine compelling statistics, scholarly studies, anecdotal evidence, historical information, and legal precedent to call into question a system which mechanically sentences innocent people to prison and, all too often, condemns them to death.

Horror ...

Stun Gun Death in VA Prison

After being electrocuted repeatedly by a stun gun, Lawrence James Frazier was strapped to a bed where he lapsed into a coma and never recovered. During a struggle with guards, Frazier was electrocuted 3 times by an Ultron II stun device that delivers up to 50,000 volts of electricity to its target. After being strapped to a gurney in a 5point restraint he was left in a medical cell. Sometime later, staff members found Frazier unconscious and unresponsive. He was transferred to Lonesome Pine Hospital in Big Stone Gap VA where he died five days later, on July 4th. Exactly how much time elapsed between Frazier's restraint and when he was discovered unconscious has not been revealed.

The cause of Frazier's death is as mysterious as the circumstances surrounding it. Larry Traylor, director of communications for Virginia DOC, adopts the conclusion that Frazier's death was the result of a massive heart attack resulting from the prolonged struggle combined with complications associated with a chronic medical condition. When Frazier, a 50-year-old diabetic, reportedly ignored verbal instructions to remain on a gurney, several guards physically restrained him. According to Major Scott Semple, Frazier was shouting, singing, and kicking ...

Alabama Officials Guilty in Phone Scam

A former Alabama state auditor, County commissioner and another man pleaded guilty in July 1999 to federal charges stemming from a prison pay phone scam operated in Alabama and Louisiana by Global Tel*Link, a Mobile-based company. Former state auditor Terry Ellis pleaded guilty to tax evasion. Former Mobile County Commissioner Dan Wiley and salesman Donald G. Bahouth pleaded guilty to tax evasion and money laundering.

In exchange for the pleas, the government dropped conspiracy and mail fraud charges, according to The Associated Press. In addition, the three agreed to testify against the two remaining defendants named in the indictment. They are political consultant and lobbyist Willie F. "Buddy" Hamner and businessman William T.J. "Billy" Boyett.

The federal indictment accuses the five men of defrauding the federal government, the state of Alabama, Mobile county

taxpayers and families of jail detainees and prisoners over a four-year period.

Global Tel*Link, previously known as Global Telcoin and United Telcoin, bilked customers who accepted automated collect calls from prisoners by padding minutes and adding hidden charges. Then in order to lower the size of the commissions paid by the company to state and local governments, fake phone sales figures were used in ...

Error to Dismiss Suit for Inability to Pay Filing Fee

The court of appeals for the Fifth circuit held that it was an abuse of discretion for a district court to dismiss a prisoner's suit for failure to pay the initial assessed filing fee without first determining if the prisoner had the means to pay the assessed filing fee. The court also gave detailed instructions for district courts and pro se prisoners filing lawsuits in forma pauperis in the Fifth circuit who lack the funds to pay the initial assessed filing fee.

Under the Prison Litigation Reform Act (PLRA) prisoners must pay the filing fee for all civil suits they file. If they cannot properly prepay the filing fee in full they can seek In Forma Pauperis (IFP) status under 28 U.S.C. § 1915 under which the district court assesses an initial filing fee of 209 of the average deposits to a prisoner's trust account, or the account's average balance over a six month period. The remainder of the fee is paid in monthly installments based on the prisoner's income.

Danny Hatebet, a Texas state prisoner, filed a civil rights suit and was assessed an initial partial filing fee he was unable to pay because ...

PLRA Physical Injury Rule Does Not Apply to Mail Claims

The court of appeals for the Seventh circuit held that prefiling screening under the Prison Litigation Reform Act (PLRA) applies to all prisoner lawsuits, regardless of their fee status and the PLRA's physical injury requirement does not apply to prisoners' First amendment claims. The court also held that the occasional delay in delivering a prisoner's mail does not violate the First amendment.

Indiana state prisoner John Rove and Jeffrey Lant, his free world correspondent, filed suit claiming prison officials delayed delivery of their mail on several occasions. The district court dismissed the suit under 28 U.S.C. § 1915A because Rowe did not allege he had suffered any physical injury under 42 U.S.C. § 1997e(e). The appeals court affirmed the dismissal, but for different reasons.

The appeals court held that district courts can screen, and suas ponte dismiss, prisoner lawsuits under 28 U.S.C.§ 1915A even if the prisoner has prepaid the filing fee.

42 U. S.C. & 1997e(e) states that prisoners cannot file suit for mental or emotional injury unless they can show physical injury. The court noted that in Robinson v. Page, 170 F.3d 747 (7th Cir. 1999) it had held ...

Sandin Limits Property Interests

The court of appeals for the Tenth circuit held that Sandin v. Connor, 515 U.S. 472,115 S.Ct. 2293 (1995) applies to property interests asserted by prisoners, as well as liberty interests. In 1997 a guard at the Wyoming State Penitentiary (WSP) was killed by prisoners during an escape attempt. Prison officials responded by dramatically restricting the property, including hobby crafts, that prisoners could have within the prison. Excess property had to be mailed out of the prison.

Eight Wyoming prisoners filed suit challenging the property restrictions. The plaintiffs claimed they had a state created property interest under the prison property policy in effect when they first obtained the property in question. They also claimed their court access rights were violated. The district court dismissed the suit for failing to state a claim under FRCP 12(b)(6). The appeals court affirmed.

The court held that Sandin affects the property interests of prisoners, as well as liberty interests. Under that analysis, prisoners have no right to due process before being deprived of liberty or property unless the deprivation imposes an "atypical and significant" hardship. State rules or policies will not create a property interest absent that component. Applying ...

Pro Se Tips and Tactics

By John Midgley

Many prisoners have difficulties obtaining good medical care. Often prisoners assume that every failure on the part of the prison system to provide adequate medical care is a constitutional violation that can be remedied in federal court, but this assumption is not correct. In this column, I discuss what kinds of medical care claims do raise constitutional issues and also other avenues you might pursue if you have a strong claim that medical care was inadequate but do not have a constitutional claim.

1. Constitutional Claim or Malpractice Claim?

As part of the Eighth Amendment's prohibition on "cruel and unusual punishments," prisoners may not be denied basic medical services. In the medical care context, the Eighth Amendment is violated by "deliberate indifference" to "serious medical needs." Estelle v. Gamble, 429 U.S. 97 (1976). However, the Eighth Amendment does not provide a remedy for medical malpractice, that is, an error in judgment by a qualified professional acting without deliberate indifference. Id.

The thrust of the Eighth Amendment protection is that prison officials must provide access to qualified medical providers, emergency care and follow-up of ordered care, and that prison medical staff cannot act indifferently to serious ...

Dismissal for Texas Prisoner's Failure to State Facts of Prior Suits

A Texas state court of appeals has held that a prisoner's lawsuit may be dismissed as frivolous because the prisoner failed to list the operative facts of his previous lawsuits, identify the parties involved, and state whether the suit was dismissed as being frivolous.

Gregory Peck Samuels, a Texas state prisoner, filed suit in state court alleging that two guards improperly confiscated 11 postage stamps. In his petition, Samuels listed two prior lawsuits under his declaration of previous filings. For one of the two suits, Samuels did not list the operative facts, name the parties involved, or state whether the suit had been dismissed as frivolous.

In 1995, as apart of the nationwide legislative suppression of prisoner litigation, Texas passed its own version of the PLRA, requiring, among other things, indigent prisoners submit an affidavit detailing all previous pro se litigation by describing the type of suit, the operative facts of the suit, the cause number and court in which the suit was brought, identifying the parties to the suit, and stating whether the suit was dismissed as being frivolous or malicious. Texas Civil Practice and Remedies Code, § 14.004. Other Sections of Chapter 14 of the Texas Civil ...

Excessive Force Claims Require Administrative Exhaustion

The court of appeals for the Sixth circuit held that prisoners filing suit seeking only money damages for excessive use of force by prison employees must exhaust their administrative remedies before they file suit.

Dwight Freeman, an Ohio state prisoner, filed suit seeking only money damages after a prison guard attacked him when he requested gauze bandaging while recovering from nasal surgery. The district court dismissed the suit under 42 U.S.C. § 1997e(a) because Freeman had not exhausted his administrative remedies. The court of appeals affirmed.

The appeals court noted that district courts are split on the issue of whether or not administrative exhaustion is required in excessive force suits and the circuit courts are split on whether exhaustion is required in suits seeking only money damages. The court held that it will require administrative exhaustion in all prisoner lawsuits in that circuit, regardless of the relief sought and regardless of the underlying claim.

The court held that Freeman had not exhausted his administrative remedies under § 1997e(a) by complaining to the Ohio State Patrol about the attack. Freeman also filed a grievance, but filed his law suit before he had received a response. The court held that ...

Sexual Assault, Beatings State Claim

The court of appeals for the Second circuit held that a district court erred when it, sua sponte, dismissed a prisoner's claim that he was beaten and sexually assaulted by guards. The court also held that the lower court erred when it dismissed the suit under the Prison Litigation Reform Act's failure to exhaust administrative remedies and physical injury provisions.

Joshua Liner, a New York state prisoner, filed suit claiming that guards at the prison in Attica slammed his head into a cabinet, beat him, called him racial slurs and then denied him medical treatment for the injuries he sustained in the beating. Liner also claimed these same guards falsely testified against him at a disciplinary hearing, sexually assaulted him and denied him meals, showers and law library access in retaliation for prior lawsuits he had filed. The district court dismissed the lawsuit under 28 U.S.C. § 1915A for failing to state a claim and because Liner did not allege sufficient physical injury and/or exhaust his administrative remedies as required under the PLRA. The court of appeals affirmed in part, reversed and remanded in part.

The appeals court joined the Fifth, Sixth, Eighth and Tenth circuits ...

En Banc Sixth Circuit Addresses Mental Heath Care

By Matthew T. Clarke

Anthony Wade was a Michigan state prisoner who committed suicide by taking an overdose of anti-depressant Sinequan (Doxepine) pills. During the year Wade was in presentencing incarceration at the Wayne County Jail (WCJ), he suffered from depression and was prescribed Thorazine. Prior to his transfer to the prison, Wade had attempted suicide by hoarding Thorazine tablets and taking twenty tablets at once. WO officials switched Wade to liquid medication to prevent hoarding. Wade was transferred to Northfield Regional Psychiatric Hospital (NRPH). While at NRPH, Wade was prescribed liquid Sinequan and his condition improved. Upon his return to WCJ, Wade was continued on Sinequan liquid.

Wade was transferred to State Prison of Southern Michigan (SPSM). SPSM received both a pre-sentencing investigation report and a discharge planning form from WCJ. Both documents stated that Wade had psychiatric problems and had attempted suicide using hoarded pills. On the SPSM admission form it was noted that Wade had suicidal thoughts and his medication, including liquid Sinequan, was listed. Wade told an admissions nurse that he heard voices.

Wade was seen by a psychologist who administered a written test, the results of which indicated Wade was suffering from depression. A few ...

WA 35% Seizure Statute Ruled on by Ninth Circuit

By Paul Wright

The court of appeals for the Ninth circuit upheld the constitutionality of a Washington state statute that allows the Washington Department of Corrections (DOC) to seize 35% of all money sent to prisoners from sources outside the prison. Faced with a very limited challenge to the statute's constitutionality the court held that the statute did not violate the Eighth amendment's ban on excessive fines or the due process clause.

In 1995 the Washington legislature unanimously enacted House Bill 2010, a wide-ranging prisoner bashing bill with a variety of punitive measures designed to make prison conditions significantly worse for prisoners. Among the bill's provisions was RCW 72.09.480, which at the time stated: "When an inmate receives any funds in addition to his or her wages or gratuities, the additional funds shall be subject to the deductions in RCW 72.09.111(l)(a)...." RCW 72.09.111(l)(a) is the statute under which money is seized from those prisoners working for private businesses who are nominally paid the minimum wage. It allows for the seizure of 35% of prisoners' income with 20% going to the DOC to pay for the "cost of ...

Notes From the Unrepenitentiary: CA Prisoners Denied Medical Care

By Linda Evans

Once again the Prison Litigation Reform Act (PLRA) and federal courts have prevailed in their determination to suppress prisoners' human rights. Despite startling new evidence of records tampering, falsified medical test results, and medical neglect, U.S. District Court Judge Shubb has dismissed the Shumate v. Wilson lawsuit. Shumate was a class action brought by women prisoners with chronic and serious illnesses against the California Department of corrections (CDC), documenting medical abuses at the Central California Women's Facility in Chowchilla (CCWF) and the California Institution for Women in Corona (CIW).

The story of the Shumate case is a story of many heroic women who responded to the suffering of their sisters by taking action to fight for basic medical care in California's prisons for women. Women prisoners were dying because of medical maltreatment, misdiagnoses, denial of crucial medications, and many other forms of medical abuse. In 1994, Joann Walker, an HIV+ prisoner, began documenting the abuses of HIV+ women at CCWF. She sent their statements and testimonies to prison activists outside, who alerted the ACLU National Prison Project in Washington, D.C. Charisse Shumate, Cynthia Martin, and Marcia Bunney continued the work started by Joann ...

News in Brief


AZ: On September 12, 2000, 20 Hawaiian prisoners at a Corrections Corporation of America (CCA) prison in Florence rioted and took a guard hostage. While complaining about the way their rice was cooked, prisoners took CCA guard Dean Goodwin hostage for 15 minutes. He was later treated for head injuries and a broken hand. Two other guards suffered minor injuries. During the hour and an half uprising, prisoners smashed windows, computers, TV sets and food carts. The private, for profit prison holds 650 prisoners.

CA: Kern county prosecutors recently convicted California state prisoners Joseph Dunn and Donald Peifer and non prisoner Ellen Powell. Powell mailed letters saturated with methamphetamine to prisoners in 11 state prisons. The letters were then cut and sold for $50 a strip. In 1999 Dunn was sentenced to 11 years in prison for conspiring to smuggle methamphetamine into prison; Powell was sentenced to two years in prison. On October 5, 2000, Peifer was sentenced to nine years in prison. All told prison officials confiscated three meth laced letters. References to drug use in the letters tipped them off.

CA: In September, 2000, Santa Clara county jail officials in San Jose hired a priest ...

Death as a Salesman: Benneton Ad Campaign Comes to Death Row

By Dan Pens

In January, 2000, Italian fashion conglomerate Benetton Group kicked off a worldwide "issue advocacy" ad campaign titled "Looking Death in the Face." The ads, featuring images of death row prisoners, sparked outrage among U.S. death penalty advocates. Which is, of course, exactly what Benetton expected. The company says that it intended the $12 million ad campaign to foster debate on capital punishment.

But controversial Benetton ads are nothing new. Throughout the 1990s the company has become notorious for politically provocative advertising. The tactic even gained a name: "shockvertising," to denote the Italian company's use of jarring images to sell its clothing: a gaunt-faced AIDS patient on his deathbed, a stallion mounting a mare, an actor and actress dressed as a priest and a nun kissing, victims of genocide and Mafia vendettas.

Benetton creative director and photographer Oliviero Toscani selected state-sanctioned murder as the theme for his latest shockvertisement. Over a two-year period he visited prisons across the United States, accompanied by Massachusetts-based freelance journalist Ken Shulman. The pair interviewed and photographed 26 condemned men in Illinois, Kentucky, Missouri, Nebraska, and North Carolina. Together, they produced a 96-page "photo essay" that appeared as an insert in ...

Family Impact of Out of State Transfers Immaterial

The court of appeals for the Seventh circuit held that no due process right of minor children was violated when their imprisoned mother was transferred to a federal prison in West Virginia from a Wisconsin prison. Carin Froehlich is a Wisconsin prisoner with 3 and 5 year old children. As previously reported in PLN, due to overcrowding in the Wisconsin prison system caused by a refusal to release prisoners on parole, Wisconsin imprisons thousands of its prisoners in other states, mostly in private prisons.

In this case, Froehlich's children (but not Froehlich) filed suit claiming their mother's transfer to west Virginia deprived them of meaningful contact with their mother. They claimed violation of their Eighth, Ninth and Fourteenth amendment rights. The district court dismissed the suit for failing to state a claim an the appeals court affirmed.

The appeals court quickly dismissed the Eighth and Ninth amendment claims. The court noted that children do have a Fourteenth amendment right to associate with their parents, but family separation is part and parcel of imprisonment. The court noted that to hold otherwise would involve federal courts in "management decisions for the world's largest, though not most luxurious, hotel chain ...

Illinois Supermax Hunger Strike

By Dan Pens

Displaying remarkable solidarity while encaged under unimaginably oppressive conditions, more than half of the 273 prisoners at the Tamms Supermax prison in downstate Illinois began a hunger strike by refusing their breakfast on May 1,2000. Prison officials said 173 prisoners joined the action. Alan Milks, a lawyer who represents Tamms prisoners, pegged the number at 200.

According to the Chicago Tribune, the strike gamered more media attention than any previous Tarnms protest. The Tribune's Christi Parsons reported two weeks into the strike that: "Media coverage--relayed to inmates via radio, television and conversations with their lawyers--has inspired more participation than the usual hunger strikes, prison officials say."

Published reports of the number of strikers mostly relied on "official" numbers: by lunchtime on May 3,128 prisoners were still refusing to eat and as of May 4, 61 prisoners were still on the hunger strike, said a spokesman from the State's Attorney's Office.

"This is quite a wonderful and amazing thing," said Jean MacLean Snyder, an attorney with the MacArthur Justice Center who has filed a class action lawsuit in federal court on behalf of mentally-ill Tamms prisoners. "I don't know when there's ...

Idaho Prisoners Can Sue for On-the-Job Injuries

The Idaho state Supreme Court held that prison officials were not entitled to summary judgment in an action brought by prisoners for injuries sustained during participation in a prison work program.

Prisoners Mark Mead and Jeff Smith were injured in separate accidents while working in the wood shop at the Idaho State Correctional Institution, as part of the prison work program which utilizes prisoner labor to produce goods and services. Mead was working under the direction of a prisoner journeyman when he had three fingers of his left hand amputated by a saw blade. Smith was working as a journeyman when he sustained a deep laceration to his left thumb and had his left index finger amputated by a saw blade.

Both prisoners filed complaints alleging that their injuries were the result of the State's negligence in failing to adequately train and supervise prisoner workers, in removing safety equipment and in requiring the performance of inherently dangerous work. The district court granted summary judgment to prison officials in both cases, holding that under Idaho Code, Section 6-904A(2), the State was immune from any claim unless Mead and Smith could show that a State employee acted recklessly, willfully, or ...

False Evidence Meets Some Evidence Standard

The U.S. court of appeals for the Seventh Circuit held that even dubious evidence satisfies the "some evidence" standard of proof in prison disciplinary proceedings. The court also held that due process does not include a right to submit further evidence on appeal in this context.

In June 1995, Monte McPherson was charged by an Indiana state prison guard "with engaging in sexual acts with another" prisoner, Tommy Steele. Specifically, Westville Correctional Center guard B. Fields claimed to have "observed" McPherson and Steele "kissing and rubbing on each others [buttocks] and holding each others [genitals] while the running of chow."

At a disciplinary hearing, McPherson failed to call any witnesses, but he testified that he had forgotten his ID badge and asked Steele to escort him back to his cell for protection. Although he admitted to hugging Steele, he denied engaging "in any sexual activity." Based on Fields' allegations, McPherson was found guilty and docked 90-days good time.

After his initial administrative appeal to the warden was denied, McPherson submitted an appeal to the Indiana Department of Connections central office, which included a written statement by Westville guard Moore. According to the statement, Moore arrived on the scene "the ...

Attorney Fees Awarded in Challenge to Nevada Shooting Policy

A federal district court in Nevada warded prisoners attorneys' fees and costs totaling $374,370.17 in an action challenging prison practices concerning the use of force and mental health services. Following the decisions, the Nevada Attorney General's office negotiated the award down to $299,500.

In 1994 prisoners ...

DC Circuit Revives Hewitt v. Helms

by Matthew T. Clarke

D. C. Circuit court of appeals has held that, when determining whether a prisoner's segregation involves a liberty interest, the conditions of the prisoner's segregation should be compared with the conditions prison officials exercising their discretionary authority routinely impose on similarly sentenced prisoners.

Donald Hatch, a D.C. prisoner at Lorton, was charged with disciplinary offenses of fighting, lack of cooperation, and creating a disturbance. While awaiting disposition of his disciplinary charges, the prison Housing Board placed him in administrative segregation. A week later, at a disciplinary hearing, all charges against Hatch were dismissed on a technicality. The next day, without notifying Hatch or providing him an opportunity to testify, be present, or present evidence, the Housing Board met and found that Hatch was a threat to the orderly operation of the prison, recommending that he remain segregated.

A week later, the disciplinary board reconsidered the disciplinary charges, acquitted Hatch of creating a disturbance and lack of cooperation, but found him guilty of fighting and sentenced him to 14 days of disciplinary segregation. Two months later, the Housing Board met, determined that Hatch was no longer a management problem and recommended returning him to ...

No Immunity for Private Prison Physician

The U.S. court of appeals for the Eleventh Circuit held that a privately employed prison physician was ineligible to claim qualified immunity. Disputed material facts surrounding his response to a prisoner's serious medical condition also precluded summary judgment on the merits.

In June 1995, Fitzgerald Hinson was a prisoner in the DeKalb County (GA) jail when he blew out an Achilles tendon playing basketball. On January 11,1996, he had surgery to repair the injury, but seven months later he was still in a wheelchair and wearing a hospital gown. By then, atrophy had set in.

At time, Roderick Edmond was the jail medical director. He was employed by Wexford Health Service, a for-profit entity that had contracted with the county to provide medical services to jail prisoners. Edmond was in charge of overseeing and implementing health care at the jail, and Wexford had sole responsibility in all matters of medical judgment.

After surgery, Hinson received little or no follow-up care, leading to the atrophy. Even after he was examined by Edmond on August 26, 1996, the first documented consult for therapy was not written until November 7th. Although Hinson began a program of rehabilitation at a local ...

PA Prisoner Awarded $300,000 in Guard Beating

On February 29, 2000, a federal jury in Pittsburgh, Pennsylvania awarded Pennsylvania prisoner Raymond Pryer $300,000 in damages for a beating he suffered at the hands of prison guards. On September 27, 1990, Pryer complained that a guard at the State Correctional Institution-Pittsburgh had squeezed his buttocks during a ...


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Disciplinary Self-Help Litigation Manual