Prison Legal News:
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Volume 11, Number 2
In this issue:
- California Guards Abuse Young Prisoners (p 1)
- Georgia Prisoner Wins $60,000 Retaliation Verdict (p 2)
- From the Editor (p 3)
- Reviews: Legal Research: How to Find &amp; Understand the Law, 7th ed. (p 4)
- Reviews: Finding the Right Lawyer (p 4)
- Prisoners' Guerrilla Handbook to Correspondence Programs in the U.S. and Canada: High School, Vocational, Paralegal and College Courses (p 4)
- Reviews: Voices From Within the Prison Walls (p 5)
- Federal Criminal Defendant's Handbook: Negotiating the Long, Lonely Road from Arrest, to Prison, to Freedom (p 5)
- Enemies of the State: A Frank Discussion of Past Political Movements, Victories and Errors and the Current Political Climate for Revolutionary Struggle Within the USA (p 6)
- A Matter of Law (p 6)
- Amended Arizona Statute of Limitations Not Retroactive (p 7)
- Habeas Challenging Transfer to Private Prison Dismissed (p 7)
- Abuse of Force at Virginia's Supermax (p 8)
- Tenth Circuit Clarifies Three Strikes (p 10)
- Wisconsin Release Account Used to Pay Filing Fees (p 10)
- Warden Purged of Contempt (p 10)
- Litigation Costs Not Dischargeable in Bankruptcy (p 10)
- PLRA Doesn't Apply to Civil Commitments (p 10)
- 28 U.S.C. § 1915A Applies to All Prisoner Suits (p 10)
- Filing Fee Refunded in Habeas Case (p 10)
- No Filing Fee Required if IFP Denied in DC Circuit (p 10)
- Prison Guard Golf Tourney Tees off Town (p 11)
- Washington Prison Slavery Runs Competitors Out of Business (p 12)
- Water Jet Companies Challenge Washington Slave Labor Laws (p 13)
- Sylvia Baraldini Goes Home After Sixteen Years (p 16)
- Torture "Aberrational" in U.S. (p 17)
- Israeli Supreme Court Limits Torture (p 17)
- Michigan DOC Settles DOJ Sexual Abuse Lawsuit (p 18)
- Prison Health Services Refuses to Pay (p 18)
- Judicial Screening Applies Only to IFP Suits (p 19)
- Lack of Evidence Bars Disciplinary Finding of Guilt (p 19)
- Delay in Treating Injured Shoulder States Claim (p 20)
- America's Toughest Sheriff Settles for $8.25 Million in Wrongful Death Suit (p 20)
- Prison Realty Hires PR Firm (p 21)
- "Three Strikes" Provision of PLRA Unconstitutional (p 21)
- Florida State Prison Halloween Melee (p 21)
- Constitutionality of ADA Upheld by Fourth Circuit (p 22)
- Cell Feed Status May Give Jailer Actual Notice of Need to Protect Prisoner (p 22)
- New Jersey Sex Offender Porn Ban Upheld (p 23)
- PLRA Administrative Remedy Exhaustion Requirement Not Retroactive (p 24)
- New York Parole Board Commissioner Convicted (p 24)
- Nine Florida Guards Injured in Scuffle (p 25)
- Whitestone Foundation (p 25)
- Oregon DOC Liable for Attacks by Parolees (p 26)
- Miscarriage is Serious Medical Condition (p 26)
- Indigence is Cause to Retax Costs (p 27)
- Notice of Summary Judgment Requirements Mandatory (p 27)
- News in Brief (p 28)
In a developing investigation eerily reminiscent of the abuse, corruption, and cover-ups at Corcoran prison, California Youth Authority guards stand accused of beating, and setting up fights between, youthful offenders at Youth Correctional Facility (YCF) in Chino, California. A six-month investigation disclosed that guards slammed handcuffed prisoners into walls, shot them with 37 millimeter riot guns at close range during cell extractions, threw prisoners into strip cells with urine and feces on the floors, and forcibly injected the young men with psychotropic medications so they would be easier to manage, according to the Los Angeles Times.
A report on the abuses was delivered to Gov. Gray Davis. In the report, state investigators described how guards "tested the readiness of [prisoners] to be returned to the mainline" by throwing them in with rival gang members or known enemies. Similar practices at Corcoran prison resulted in the shooting deaths of several prisoners. The trial of seven Corcoran guards for violating the civil rights of prisoners by setting up fights, shooting the prisoners, and covering up the corruption up is pending.
Prisoners at YCF, between 12 and 25 years old, tried to complain about the abuses using the facility's ...
by W. Wisely
On September 30, 1999, U.S. district court judge Orinda Evans awarded Georgia state prisoner Ray Yelverton $60,000 in compensatory and punitive damages in a retaliation suit against prison officials. Yelverton was convicted of child molestation charges in 1990. He was imprisoned at the Ware State Prison in Waycross ...
I would like to thank those readers who returned the reader survey forms. Your responses give me invaluable feedback on how PLN can better serve your needs. In a few issues, once more of the surveys have been returned, I'll report the major trends. If you have not yet returned your survey form, it isn't too late to do so.
The most common response so far, especially from prisoners ...
PLN's fundraiser to pay for the second staff position has raised $5,645 as of January 10, 2000. We need to raise a total of $24,000 above and beyond what we normally bring in so we will be able to pay for a much needed second office person. If you haven't made a donation yet, it's not too late to do so. We especially appreciate the small donations made by prisoners, especially those on death row and in control units--every little bit helps. The Sonya Staff Foundation in New York has donated $2,500 to our efforts for which we are very grateful. I would also like to thank those readers who, unable to make an additional donation, took the opportunity to extend their subscriptions.
by Stephen Elias and Susan Levinkind, Nolo Press, 392 pages.
Reviewed by Allan Parmelee
Have you ever wondered what the difference is between a brief and a memorandum of law? Feel intimidated by the "stuff" in a court rules book or a law library? I wish I had had this book when I got started doing pro se litigation. The good news is that now it's here.
The very latest text in explaining legal research and what it consists of and how to do it, it carefully explains what a statute, cite, digest, legal encyclopedia or practice book is. This book has it all, including a great chapter on internet legal research.
What do you do when you enter a law library? Legal Research provides detailed "how to" steps from the beginning to the end of your law subject. For example, do you want to know if you have a valid constitutional law claim to sue a jail or police officer? Or what grounds you can challenge a criminal conviction on? By following this well written, easy to use, step by step legal research method you will ...
Reviews: Legal Research: How to Find & Understand the Law, 7th ed.
Reviewed by Allan Parmelee
Clear and to the point, while easy to understand. In Finding the Right Lawyer, the author presents one of the most concise, detailed and powerful presentations of a checklist of what to look for in a lawyer and how to find it. For example, the use of free sources, yellow pages, referrals, the Martindale-Hubbel Law Directory, etc., are all unmistakable methods to find the lawyer right for you. The Martindale Hubbel directory only lists about 30% of the nation's lawyers, the ones who are "A" rated on an A, B, C scale. The author explains why about 60% of the people who call a lawyer referral service either don't need a lawyer or cannot afford one. He also strongly explains why people should not represent themselves pro se or go small claims.
While this book was written in 1995, its underlying message is timeless. The internet is emerging as a good place to find legal counsel, which this book only briefly mentions. The lack of more internet information is its only drawback. The book also discusses attorney fees, contingency cases, costs and much more. I bought ...
by Jay Isenberg, American Bar Association, 256 pages
Reviewed by Paul Wright.
The steady demise of educational programs in prison means that prisoners seeking an education can no longer rely on prisoncrats to provide it. While there are books on the market discussing correspondence courses, they are all aimed at non prisoners.
Prisoners' Guerrilla Handbook to Correspondence Programs in the U.S. and Canada is written by Missouri prisoner Jon Marc Taylor who has successfully completed B.S. and M.A. degrees by mail while imprisoned. This book offers a complete description of 212 programs that are ideal for prisoners seeking to earn high school diplomas, associate, baccalaureate and graduate degrees and vocational certificates. In addition to giving contact information for each school, Taylor includes tuition rates, text book costs, courses offered, transfer credits, time limits for completing course, whether the school is accredited, and if so by whom, and much, much more.
Taylor also explains factors to be considered in selecting an educational program and how to make meaningful comparisons between the courses offered for the tuition charged. No money to pay for school? Taylor covers that too. Any prisoner seeking to begin or continue their education behind bars ...
by Jon Marc Taylor, Audenreed Press, 243 Pages
Reviewed by Rick Card
"Criminals have become the 'bogeyman' so that corporate America can continue to commit atrocities against the proletariat throughout the nation and around the world," says David Shelton in Voices From Within the Prison Walls. In a book that covers the breadth of our nation's massive prison explosion, Shelton delivers a concise and lively look behind the walls.
By explaining the characteristics of who is really rotting behind bars in our nation, Shelton unsheathes a fact that lawmakers and enforcers would rather remain hidden. While demonstrating that minorities are imprisoned disproportionately, an article of virtual common knowledge, Shelton doesn't stop there. He points out that economic conditions are also a huge factor, and specifies that in 1994 79% of those imprisoned lived in poverty and 67% were unemployed at the time of their arrest.
Another factor often missed by writers reporting on the prison industrial complex is the educational status of those imprisoned. Shelton points out that 40% of prisoners are unable to read or write and that 73% never completed high school. If illiteracy is a characteristic of those incarcerated, the continuing deterioration of our ...
by D.A. Shelton, News and Letters, 71 pages
Reviewed by Paul Wright.
A common refrain among jailhouse lawyers that have successfully learned how to navigate the legal system while imprisoned is "I wish I knew at the time of my arrest what I know now." Knowledge of how the criminal justice system works in the real world is invaluable to anyone facing criminal charges.
Douglas Hill practiced law in California for 25 years before going to federal prison for six years after fighting criminal charges against him for five years. Now released from prison, Hill has written the Federal Criminal Defendant's Handbook. While primarily aimed at those who are dealing with the federal government, its general advice will be useful to anyone facing criminal charges in state court as well as federal court.
Hill provides criminal defendants with honest, down to earth information about the criminal justice system that is realistic and tells it like it is. While people that have previously had no dealings with the criminal justice system will probably benefit the most from this book, those that have been through the system before and haven't quite figured it out will also benefit.
Divided into ...
by Douglas Hill, J.D., Kensington Publishers, 208 pages
David Gilbert and Laura
Whitehorn, 84 pages
Review by Paul Wright
The United States government steadfastly denied holding any political prisoners. In reality, it holds over 100 leftist political prisoners imprisoned because of their anti-imperialist activities and beliefs. This booklet contains interviews with three of these prisoners of war. David Gilbert was a founding member of Students for a Democratic Society (SDS) and Weather Underground Organization (WUO). Marilyn Buck was a member of the Black Liberation Army (BLA) and Laura Whitehorn (PLNs former columnist, now out of prison), was also a WUO member. All three were convicted and imprisoned for politically motivated crimes against the US government.
These detailed interviews allow each of these long time activists to discuss issues of armed struggle, their development and growth as political activists, and criticism and self criticism of the errors that were made in developing and building a resistance movement in the US. Candid and thoughtful, these interviews provide a crucial and frequently hidden history of political resistance in America.
Labeled as terrorists by the US government, the booklet humanized the interviewees and allows them to explain and express themselves as to why they saw armed action ...
By RNB with Marilyn Buck
Law is simply politics by other means&
- David Kairys, Legal Reasoning
When one looks at public projections of police in the corporate and entertainment media, one thinks of someone who is sworn to follow (as opposed to breaking) the law. Similarly, when one examines the public projections of criminals in the corporate and entertainment media, the reverse image is received: to be one who breaks the law, is to be seen as a base, low individual.
But as many of us have learned over the years, images are not reality; and public media projections often bear little resemblance to the truth.
Consider the case of two Pennsylvania State Troopers (Rodney Smith and Robert Johnson) both of whom were charged with committing crimes, and subsequently dismissed from the force. Once they were formally dismissed, they promptly filed grievances to an arbitrator, had their dismissals reversed and were reinstated. Now understand: one of these cops took his state issued pistol and stuck it in the mouth of Tammy Mathis, an ex-girlfriend, and threatened to kill her. Continuing to drink, he drove away, was soon arrested, and was charged with driving under the influence, simple assault and making terroristic threats. Johnson was caught stealing $27.58 worth of merchandise from the Clover Department Store.
Citing a state statute called Act 111, the Pennsylvania supreme court accepted an allocatur appeal from the state to determine whether the arbitrators award would stand.
In a set of divided opinions known as Pennsylvania State Police v. Pennsylvania State Troopers Association (Smith), the court determined that their authority was limited on review. Under what they termed narrow scope, a majority of the justices decided that the legislature dictated ...
By Mumia Abu-Jamal
Christian Weaver TwoRivers, an Arizona prisoner, appealed a lower court's dismissal of his 42 U.S.C. § 1983 claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that he failed to file suit within the applicable two year statute of limitations. "A provision under Arizona law which tolled the two year limitations for Arizona prisoners until after discovery of the prisoner's right to sue existed at the time TwoRivers discovered his right to bring his § 1983 action. However, before TwoRivers filed suit, Arizona amended its law deleting this grace period and requiring prisoners to bring their action within two years from the date of accrual."
Section 1983 does not contain its own statute of limitations. The federal courts borrow the statute of limitations applicable to personal injury claims in the forum state. See: Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938 (1985). In Arizona, the courts apply a two year statute of limitations to § 1983 claims. See: Marks v. Parra, 785 F.2d ...
The court of appeals for the Ninth circuit held that an Arizona statutory amendment eliminating the tolling provision for prisoners' suits, did not apply retroactively.
Several Wisconsin state prisoners filed habeas corpus petitions in federal court challenging the constitutionality of Wis.Stat.Ann. § 301.21(2m). This law authorizes Wisconsin prison officials to contract the captivity of Wisconsin prisoners to private prisons in other states. As previously reported in PLN, Wisconsin has over 4,000 of its prisoners being held in private prisons operated by Corrections Corporation of America (CCA) in Tennessee and Oklahoma. [PLN, Mar. 1999] The petitioners claimed that § 301.21(2m) violates the Thirteenth amendment to the US constitution. The district court dismissed the habeas petition. The appeals court affirmed.
As a preliminary matter, the court of appeals held that 42 U.S.C. § 1983, not habeas corpus, is the proper means by which to challenge a state statute. Simply put, habeas can be used only if a prisoner is seeking to "'get out' of custody in a meaningful sense ...
The court of appeals for the Seventh circuit held that habeas corpus was not the proper means to challenge a state statute allowing states to confine their prisoners in private prisons in other states. The court also held that a lawsuit challenging prisoners' confinement in private prisons in other states is frivolous.
by Dan Pens
Shortly after publication of the July PLN, cover article: "Strip Mining Human Rights in Virginia's Supermax Dungeons", PLN received a letter from a prisoner at Red Onion, one of Virginia's two new "supermax" prisons. "You wouldn't believe it," he wrote, "there's lines painted on the floor and these hillbillies [guards] actually shoot people for stepping out of line!"
He was right. It sounded unbelievable. However, other Red Onion prisoners wrote similar accounts to PLN. And corroborating accounts came from human Rights Watch in New York.
In its June 30, 1999 report, "Human Rights Watch Statement to the Virginia Crime Commission: Super-Maximum Security Confinement in Virginia" (available on the web at: www.hrw.org/press/1999/jul/`paper) is a quote from a Red Onion prisoner describing why guards fire their weapons: "for a simple fist fight that two officers could easily break up, for not walking fast enough... for stepping over a red line that leads to their cell, for not hanging up the inmate phone quick enough, for not coming out of the showers quick enough, for not eating our meals fast enough, for ...
Shoot 'Em if They Step Out of Line
The court of appeals for the Tenth circuit held that under 28 U.S.C. 1915(g), which prohibits IFP status for prisoner litigants that have had three or more suits dismissed as frivolous, malicious or for failing to state a claim upon which relief can be granted. Habeas petitions do not count as "strikes" under the PLRA because they are not actions for PLRA purposes. The court held that district court dismissals for not count as "strikes" for § 1915(g) purposes until 1) the litigant has exhausted or waived his right to appeal; 2) a district court dismissal under 28 U.S.C. § 1915(e)(2)(B) affirmed on appeal counts as one "strike"; 3) a dismissal reversed on appeal does not count as a "strike"; 4) if the appeals court dismisses as frivolous the appeal to a district court dismissal under § 1915(e)(2)(B), both dismissals count as "strikes"; and 5) If the appeals court dismisses as frivolous a prisoner's appeal in which the district court entered judgment for the defendants, the dismissal of the appeal counts as a "strike." See: Jennings v. Natrona County Detention Center, 175 F.3d 775 (10th Cir. 1999).
The court held that for PLRA purposes there was no distinction between the release account and a regular trust account. Since Wisconsin prisoners have a vested property interest in the funds in both accounts, they are the ultimate owners of the money, even if the state temporarily restricts their access to it. See: Spence v. McCaughtry, 46 F. Supp.2d 861 (ED WI 1999).
A federal district court in Wisconsin held that a prisoner's "release account" can be used to pay PLRA filing fees. The Wisconsin DOC takes a percentage of prisoners' money which it places in an account that can only be accessed when the prisoner is released. Frederick Spence filed suit and paid a portion of the PLRA filing fee from his prison trust account. Spence then filed a motion asking the court to seize the remainder of the amount owed from his release account. The court granted the motion.
In the August, 1999, issue of PLN we reported Hall v. Stone, 170 F.3d 706 (7th Cir. 1999) in which Bureau of Prisons (BOP) warden John Farello was held in contempt of court for failing to pay a prisoners' PLRA filing fee. In this ruling the appeals court purged Farello of contempt after he claimed he had established a procedure to ensure PLRA filing fees are paid to the courts. The court emphasized that PLRA fee payment orders under 28 U.S.C. § 1915(b) are directed to the prison warden to disburse payment from prisoner trust accounts. "When a judge issues an order directly to a trustee in that fiduciary role, the trustee must comply unless the order is stayed or set aside on appeal, under no circumstances may the judicial order be ignored or countermanded by the trust beneficiary." See: Hall v. Stone, 179 F.3d 1043 (7th Cir. 1999).
A federal bankruptcy court in Idaho held that the PLRA's modification to the bankruptcy code, 11 U.S.C. § 523(a)(7), which exempts from chapter 7 bankruptcy discharge any debt involving filing fees and litigation costs, applies to non prisoners as well as prisoners. The court rejected the argument in this non prison case that § 523(a)(7) applies only to prisoners. "If Congress preferred a restricted approach, it could have limited the operation of the exception to fees imposed by a court against a prisoner. It failed to do so and while it may have constructed a tiger pit to trap a mouse, only congress can properly remedy the error." See: In Re Hough, 228 B.R. 264 (D ID 1998).
A federal district court in Massachusetts held that the PLRA does not apply to sexually dangerous people who are civilly committed, even when the facility they are housed in is in fact a prison administered by the state prison system. In 1975 a consent decree was entered regarding conditions at the Massachusetts Treatment Center for Sexually Dangerous Persons, run by the Massachusetts DOC. The defendants recently sought to terminate the decree. The court held that 18 U.S.C. § 3626(b)(2), the PLRA provision that allows for the termination of prison and jail consent decrees, does not apply to the civilly committed since by statutory definition they are not "prisoners" and the facility, though a "prison" in every meaningful sense of the word, is not a "prison" under the PLRA. All courts to consider the PLRA's applicability to civil commitments have likewise concluded it is inapplicable. See: King v. Greenblatt, 53 F. Supp.2d 117 (D MA 1999).
The court of appeals for the Second circuit held that 28 U.S.C. § 1915A applies to all suits filed by prisoners. Section 1915A requires district courts to screen civil suits filed by prisoners against government officials/entities and dismiss the suit if it fails to state a claim upon which relief can be granted, is frivolous, malicious or seeks damages from a defendant immune to money damage actions. The court held that § 1915A applies to in forma pauperis suits as well as actions in which the prisoner pre-pays all filing fees. The court held that § 1915A dismissals do not require that process be served on the defendants or that the plaintiff be given an opportunity to respond prior to the dismissal. This ruling is in agreement with the Fifth, Sixth and Tenth circuit but directly in conflict with other circuits. See: Carr v. Dvorin, 171 F.3d 115 (2nd Cir. 1999).
28 U.S.C. § 1915A Applies to All Prisoner Suits
A federal district court in Massachusetts held that a habeas petitioner had incorrectly been required to pay the appellate filing fee. Because the Prison Litigation Reform Act's (PLRA) filing fee requirements do not apply to habeas petitions the court ordered the filing fee refunded to the prisoner. See: Austin v. Vose, 40 F. Supp.2d 487 (D MA 1999).
Reflecting a widening split between the circuits on this issue, the court of appeals for District of Columbia circuit held that when prisoner plaintiffs are denied In Forma Pauperis (IFP) status under 28 U.S.C. § 1915(g)(the 3 strikes provision of the PLRA) they do not incur liability for the appellate filing fees. This approach has been adopted by the 3rd, 5th and 9th circuits. The 2nd, 7th and 8th circuits have held that prisoner plaintiffs become liable for the full filing fees under the PLRA when they file the suit or notice of appeal, regardless of whether or not the request to proceed IFP is granted or denied by the court. Thus, in the DC circuit, a prisoner plaintiff denied IFP status on appeal can withdraw the appeal without penalty or prepay the full filing fee and proceed with the appeal. The court also held that strikes under 28 U.S.C. § 1915(g) become final when the period for filing an appeal from such dismissals has passed. See: Smith v. District of Columbia, 182 F3d 25(DC Cir. 1999).
No Filing Fee Required if IFP Denied in DC Circuit:
During the August 13, 1999 event, New York prison guards urinated in public view, damaged the greens with golf carts, turned "doughnuts" with carts in the fairways and played bumper cars, according to the director of Canton's Partridge Run Golf Course.
"Upon registration I counted 93 coolers, numerous bottles of vodka, rum, and gin," Kathy Lawrence, director of the golf course, said when describing the outing as a "drunk fest" to the Associated Press.
Department of Correctional Services spokesman Mike Houston said the department was investigating the allegations.
In a letter, Canton Mayor Ronald Houle told Corrections Commissioner Glenn Goord that his town, located about 120 miles northeast of Syracuse near Lake Ontario, would no longer play host to the annual Tri-Facility Golf Tournament. He also submitted a list of expenses for damage to golf carts and greens.
Sources: Associated Press, Syracuse Post-Standard
Officials of the upstate New York town of Canton will no longer play host to a golf tournament for prison guards after the last event turned into a "drunk fest."
On July 16, 1999, the same coalition of water jet companies that has now sued Microjet and the Washington Department of Correciions (DOC) Correciional Industries (CI), [see sidebar for details on the suit] met with the CI board to express their concerns about Microjet. Scott MacFarlane, president of Microjet competitor Cutting ...
PLN has extensively reported that, contrary to the claims of its supporters, prison slave labor has historically cost free world workers their jobs and eliminated businesses who are unable to compete with prison slave wages. Prison slave labor also drives down wages and ill serves prisoners in terms of providing adequate compensation for their labor or meaningful post release job skills. In the March, 1997, issue of PLN, "Slave Labor Flies: Boeing Goes to Prison," I reported the first published story about Microjet and its aciivities as an employer of prisoners at the Washington State Reformatory (WSR) in Monroe, WA. Microjet, owned by Kenneth Piel, uses high pressure water cutting technology to cut a variety of flat stocks such as alloys, ceramics, and stone. The article noted that the most likely impaci Microjet would have would be the elimination of jobs for non prisoners and to push wages down.
As reported in the March, 1997, issue of PLN, Microjet is a privately owned company based at the Washington State Reformatory in Monroe, Washington, which uses high pressure water cutting technology to cut and manufacture various hard materials, including stone, flatstocks, ceramics and alloys. Microjet's customers include big companies like Boeing, which sub contract work, but most of Microjet's customers are small local and regional companies.
The Washington DOC provides Microjet, and its other 14 private business partners, with rent free industrial manufacturing space, along with free water, sewage, heating, ventilation and trash removal and electricity at the reduced rate the DOC pays. Microjet currently gets about 11,000 square feet of industrial space at WSR and another 1,000 square feet of warehouse space at the prison for free.
On August 31, 1999, the Washington Waterjet Workers Association (WWWA) filed suit in King county (Seattle) superior court in Washington, challenging the state Department of Corrections (DOC) practice of allowing private businesses to employ prisoner labor. The defendants are Howard Yarbrough, administrator of the DOC's Division of Correctional Industries (CI), and Jet Holdings, Ltd., which is the business name of Microjet, and its owner, Kenneth Piel.
by Julia Lutsky
On August 25, 1999, after more than a decade of battle to return to her homeland, Sylvia Baraldini was transferred from the federal prison at Danbury, Connecticut to the Rebibbia prison in Rome, Italy. She traveled in a private jet sent by the Italian government; when she arrived supporters threw roses in front of the car that carried her to Rebibbia. Several Italian cities and towns have offered her honorary citizenship, calling her the victim of American injustice.
Baraldini was 13 when her diplomat father brought her to this country in 1961. Introduced to the anti-war and civil rights movements when she attended the University of Wisconsin during the 60s, she became active and remained in the struggle joining the Black Panther Party and working with the Puerto Rican independence movement.
In 1983 she was convicted under the RICO act of "participating in a violent revolutionary group called 'the Family' that committed a series of armed robberies of armored trucks. During the crimes two Brinks guards and two in Nyack, N.Y., police officers were killed." [Seattle-Times, 8/25/99] That she happened to be in Zimbabwe when the crimes ...
Sylvia Baraldini Goes Home after Sixteen Years
"We fully acknowledge in this report there continue to be areas of concern, contention and criticism," said Assistant Secretary of State Harold Koh. "But we note torture does not occur in the United States except in aberrational situations and never as a matter of policy."
The report, prepared by the State and Justice departments as part of a 1994 international agreement against torture, cited police brutality, excessive use of force, physical and sexual abuse of prisoners, and lack of adequate training and oversight of police and prison guards.
The report described several specific incidents, including the beating of Rodney King by Los Angeles police officers, the sexual assault on Abner Louima by New York officers and excessive use of force by federal agents at Ruby Ridge, Idaho and Waco, Texas.
"Abuses occur despite the best precautions and the strictest prohibitions," the report concluded. "No government can claim a perfect record."
Source: The Tennessean
On October 15, 1999 the Clinton administration submitted a report to the U.N. Committee Against Torture, admitting abuses in the United States but calling them rare.
Israeli authorities had long claimed that "moderate physical pressure" during interrogations was necessary to combat terrorism. Palestinian prisoners, many detained without being charged, were subjected to violent shakings, sleep deprivation and physical abuse. Ten prisoners have died under interrogation since 1987.
Unlike other nations that practice but deny the use of torture, Israel has attempted to justify its official policy of physically abusive interrogations. Although Israeli officials say torture is required to obtain information about guerrilla threats, human rights advocates have noted that interrogations are performed routinely and often stop on weekends when the interrogators go home, indicating there is no pressing need to justify the use of torture.
Israeli lawmakers denounced the Supreme Court's ruling and called for legislation to circumvent the decision. Deputy Defense Minister Ephraim Sneh said the verdict was "almost completely irrelevant to the world we live in."
The Israeli Supreme Court did allow a "good faith" exception for the use of torture: Security officials will be held immune from prosecution if they can show that torture was necessary to save lives, such ...
In a Sept. 1999 ruling, Israel's Supreme Court outlawed the systemic torture of Palestinian detainees by the country's security forces.
According to the terms of the agreement (see sidebar), the DOJ will agree to dismiss its claims if the MDOC is found in substantial compliance by a mutually agreed-upon expert. In fact, the DOJ has agreed that the stipulation to dismiss will contain this language: "There is no pattern or practice of Defendants violating female inmates' constitutional right to be free from sexual misconduct and sexually inappropriate behavior."
However, according to an attorney who represents female inmates, Deborah LaBelle, there have been 10 sexual assault convictions of male guards since 1995. Thirteen more are pending. She calls for male guards to be restricted from working in women's housing units. MDOC ...
This past May, the Michigan Department of Corrections (MDOC) agreed to settle a lawsuit filed by the U.S. Department of Justice (DOJ) which alleged a pattern and practice of sexual misconduct and invasions of privacy at the women's prisons in Michigan. The DOJ filed its suit in 1997, reported by PLN in October, 1997. During the investigation, so many women complained of retaliation that Human Rights Watch published a report, Nowhere to Hide: Retaliation Against Women in Michigan State Prisons, outlined in PLN's February, 1999, issue.
This case offers a classic example of the privatization of prisoner health care. Cutting costs to increase profits frequently leads to tragic consequences, and in the long run costs are increased, while prisoner health care declines.
In this instance, PHS entered into a contract with the Sheriff to provide medical services to prisoners in the county's jails. Four years later, a county jail prisoner suffered a head injury, which required immediate hospitalization. However, PHS failed to render the necessary treatment and the prisoner lapsed into a vegetative state.
As a result of the prisoner's chronic condition, his guardian brought suit against the Sheriff. Since the contract between the Sheriff and PHS contained an indemnity clause holding the Sheriff harmless from such claims, the Sheriff's insurer asked PHS to intervene. Contrary to the terms of the contract, PHS refused.
The Sheriff's insurer then informed PHS that the prisoner ...
The U.S. court of appeals for the Eleventh Circuit held that a forum selection clause in an indemnity agreement between the Sheriff of Polk Co., Florida and Prison Health Services (PHS), which allowed contract disputes to be brought in the state circuit court, was mandatory rather than permissive.
Noting that there are conflicting rulings between the circuits on whether § 1915(e)(2) applies to suits where the plaintiff prepaid the filing fees and did not seek IFP status, the court held in this case that it did not apply. The court held that while McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997)[PLN, Sep. 1997] suggested otherwise, that was merely dicta and not controlling law.
This case was filed by a non prisoner who prepaid the filing fee. The district court dismissed the suit after screening it under § 1915(e)(2). The appeals court vacated and remanded.
"We conclude that 28 U.S.C. § 1915(e)(2) is ...
The court of appeals for the Sixth circuit held that 28 U.S.C. § 1915(e)(2), which requires judicial screening of lawsuits and dismissal under certain conditions, applies only to suits filed in forma pauperis (IFP), or without the pre-payment of the filing fees. 28 U.S.C. § 1915(e)(2) is part of the Prison Litigation Reform Act (PLRA). It requires district courts to screen lawsuits and sua sponte dismiss those which are frivolous, fail to state a claim or which sue defendants entitled to immunity.
The court of appeals for the Ninth circuit held that it violates due process to find a prisoner "guilty" of violating a prison disciplinary rule when absolutely no evidence supports the finding. The court held it is immaterial if the prisoner can show a liberty interest was infringed or not. Expungement of the infraction is the proper remedy.
Prisoner rights attorney Mike Snedeker once commented that for many prison officials due process is a concept as alien and offensive as Maoism. The facts of this case illustrate his observation.
Harry Burnsworth is an Arizona state prisoner. In February, 1995, a prison informant told prison officials that Burnsworth was in physical danger because he owed debts. Burnsworth claimed he was in no danger and sought to remain in the prison population. A month later, Burnsworth went to prison officials and requested placement in protective custody (pc), saying his life was in danger. Burnsworth told prison officials that if he was not placed in PC he would have to "hit the fence." Burnsworth was duly placed in PC and asked to clarify his earlier comment. Rather than stay quiet, Burnsworth ...
Lack of Evidence Bars Disciplinary Finding of Guilt Regardless of Punishment Imposed
On July 30, 1997, Daniel Petrichko, a Pennsylvania state prisoner, dislocated his shoulder when another prisoner pushed him into a pole. Petrichko immediately sought medical attention which was denied. His repeated requests for medical care went unanswered.
Petrichko did not receive diagnostic x-rays and painkillers until September 19, 1997. He did not receive actual treatment for the shoulder injury until October 29, 1997, when a bone specialist told him he had sustained permanent injury to his shoulder as a result of the delay in treatment.
Petrichko filed suit in federal court claiming that the delay in treatment violated his Eighth amendment right to be free from cruel and unusual punishment. The defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted, Fed.R.Civ.P. 12(b)(6). The court denied the motion.
Under Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 289 (1976), prisoners have an Eighth amendment right to the treatment of their serious medical needs. The court held that in this case ...
A federal district court in Pennsylvania held that prison officials delaying treatment for a prisoner's dislocated shoulder states a claim under the Eighth amendment.
In 1996 Scott Norberg was arrested for assaulting a Mesa, Arizona police officer and booked into the Maricopa County Jail, which is run by "America's Toughest Sheriff" Joe Arpaio. The next day Norberg, 35, was choked to death by deputies while strapped in a metal restraint chair. The county ...
In Sept. 1999 Prison Realty retained Los Angeles-based Sitrick & Co., which specializes in crisis management. Sitrick will handle Prison Realty's media relations and communications with investors and stock analysts.
Prison Realty has faced negative media attention due to escapes and riots at CCA facilities, and is presently facing almost a dozen shareholder suits for allegedly withholding financial information [PLN, Nov. 1999].
Sitrick & Co. was founded by Michael Sitrick, author of Spin: How to Turn the Power of the Press to Your Advantage, and has handled high-profile PR problems for other large corporations.
Source: The Tennessean
Nashville-based Prison Realty Trust, the parent company of Corrections Corp. of America (CCA), has hired a leading public relations firm to improve its image.
In April 1997, Arkansas state prisoner Wendell Ayers filed a 28 U.S.C. § 2254 petition for writ of habeas corpus. He was granted in forma pauperis status, and he sought declaratory and injunctive relief for alleged due process and equal protection violations during the parole hearing process.
A year later, the court construed Ayers' petition as a 42 U.S.C. § 1983 civil rights complaint and appointed counsel. The defendants promptly moved to dismiss pursuant to § 804 of the PLRA, which is encoded as 28 U.S.C. § 1915(g) and is commonly known as the "three strikes" provision.
In essence, the provision prevents prisoners from bringing civil rights actions in forma pauperis in federal courts, if they have had three or more federal proceedings dismissed as frivolous, malicious or failing to state a claim. Ayers has had four such qualifying actions.
In his opposition, Ayers raised four grounds, but only one was significant. He argued ...
A federal district court in Arkansas held that a prisoner had standing to challenge the "three strikes" provision of the Prison Litigation Reform Act (PLRA) on equal protection grounds, and that "strict scrutiny" analysis applied. As a result, the provision was declared unconstitutional.
The disturbance began when FSP prisoner William Stiles set his mattress on fire. Other prisoners complained of respiratory problems because of the smoke and guards began evacuating them while the fire was extinguished.
As they filed into a recreation yard, an unnamed prisoner pulled a shank and began striking at guards, according to The Sentinel. Several other prisoners began climbing a fence but were stopped when guards fired two warning blasts with shotguns.
Eleven prisoners were reportedly place in segregation for their involvement in the disturbance. There was no report of prisoner injuries.
According to The Sentinel, Sgt. Fred Wright, the most seriously injured guard, received treatment for a stab wound in the arm.
Source: The Orlando Sentinel
According to a report in The Orlando Sentinel, six Florida State Prison guards were injured during a Halloween incident at Florida State Prison.
On remand, the Fourth circuit duly accepted the supreme court's determination that the ADA and RA apply to state prisons. The court also concluded that the ADA and RA are constitutional and do not exceed the constitutional limits on congressional power. The court also held that congress had abrogated the states' sovereign immunity from suit by enacting the ADA and RA.
The suit involves 13 disabled Maryland state prisoners who claimed their conditions of confinement violate both the ADA and the RA because they are not provided with the same access to prison programs and opportunities available to able bodied prisoners ...
In the September, 1998, issue of PLN we reported Amos v. Maryland Department of Public Safety, 126 F.3d 589 (4th Cir. 1997) in which the court held that the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131-12165 and the Rehabilitation Act (RA), 29 U.S.C. § 794, did not apply to state prisons. The supreme court vacated the ruling and remanded it, at 118 S.Ct. 2339 (1998), to the appeals court for reconsideration in light of Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952 (1998)[PLN, Sep. 1998].
Shawn Giroux was a prisoner at the Somerset County (Maine) Jail. Initially housed in a four-man cell block, Giroux was moved when another prisoner, Robert Tucker, threatened him.
The fact that Giroux was placed on cell feed status, which only occurs for medical or protection reasons, was noted on the jail roster. Giroux and Tucker had overlapping visits in a communal visitation room. Following the visits, Sgt. Hartley placed Giroux, Tucker, and another prisoner in a holding cell. Tucker had an argument with the other prisoner who was removed from the holding cell. Tucker then attacked Giroux, breaking his nose, tearing his shoulder ligaments, and causing a head laceration that required stitches. Hartley was nearby and broke up the fight.
Giroux filed a civil rights suit under 42 U.S.C. § 1983 in federal district court alleging that Hartley violated his Eighth Amendment rights when he failed to protect him and the ...
The First Circuit has held that the fact a jail supervisor knew a prisoner was on cell feed status may have given him actual notice of the prisoner's protective custody status when he placed the prisoner in a holding cell where he was assaulted by another prisoner.
In 1998 the New Jersey legislature unanimously enacted NJSA 2C:47-10 which bans possession or viewing of all "sexually oriented" materials at the Adult Diagnostic Treatment Center (ADTC) in Avenal. The ADTC is a prison operated by the New Jersey Department of Corrections (DOC) for the sole purpose of treating and rehabilitating "repetitive and compulsive" sex offenders, mainly pedophiles. The statute in question does not apply to any other New Jersey prisons.
The district court held that the statute was unconstitutionally vague and overbroad and was not rationally related to any legitimate penological objectives. The New Jersey DOC appears to have cured the vagueness and over-breadth ...
In the May, 1999, issue of PLN we reported Waterman v. Verniero, 12 F. Supp. 364 (D NJ 1998) where a federal district court preliminarily enjoined a New Jersey law banning sexually oriented material from a sex offender treatment prison. The same article also reported Waterman v. Verniero, 12 F. Supp.2d 378 (D NJ 1998) where the court converted its earlier ruling into a permanent injunction. The court of appeals for the Third circuit reversed and remanded the case with instructions for the trial court to enter judgment in favor of the defendants.
Abdullah Y. Salahuddin, a New York state prisoner, filed a civil rights suit under 42 U.S.C. § 1983, alleging that a guard violated his First Amendment rights when he twice prevented Salahuddin from meeting with a prison chaplain. After the suit was filed, the PLRA was enacted. The district court dismissed the suit for failure to exhaust administrative remedies, as required by the PLRA. Salahuddin appealed.
The Second Circuit held that, pursuant to Landgraf v. USI Film Prods., 511 U.S. 244 (1994), it should first determine "whether Congress has expressly prescribed the statute's proper reach." The court held that because it states that no action "shall be brought," not that no action "shall be maintained," the express terms of the amended § 1997e(a) state that it "does not apply to actions pending as of the Act's effective date." Because this case was pending on the effective date, the district court should not have applied the amended § 1997e(a). All ...
The Second Circuit has held that the Exhaustion of Administrative Remedies requirement of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), does not apply to suits pending prior to the PLRA's enactment.
by Julia Lutsky
In April of 1996 John Kim walked out of prison on parole; he had been sentenced four years earlier to four to twelve years for armed robbery. His father, Nam Soo Kim, pastor of one of New York City's largest Korean congregations, had contributed several thousand dollars to Governor George Pataki's campaign coffers in 1995. The families of two other Korean prisoners made contributions of $12,000 and $9,500 each to Pataki's campaigns. They were not so lucky, however; their sons were not released. The parents of one of these visited the offices of Zachary Carter, then federal prosecutor in Brooklyn, causing the initiation of a federal investigation which has resulted in the August 3rd 1999 conviction of New York State Parole Commissioner Sean McSherry. McSherry, 47, from Chester and a former Bronx prosecutor, had been the lead official on the three-member panel of the Parole Board that ordered John Kim's release over the objections of Queens prosecutors [PLN, May, 1999].
When McSherry was indicted for lying, perjury and obstruction of justice in October of 1998, Ronald Hotaling, then secretary to the Division of Parole Chairman, was arrested and ...
Federal Inquiry Continues
According to prison officials, six guards were handcuffing Lamar Miffin, 29, near the recreation yard after he had reportedly exposed himself and masturbated. Officials say Miffin grabbed a chunk of concrete to use against guards as they approached him.
Sources inside Raiford told PLN that it was unclear what Miffin had done, "whether the catalyst was gunning, but he was doing something in the sallyport of D Area in the SW Unit, possibly gunning [exposing himself to] a female guard in the control room.
"Anyway, the guards tried to corral [Miffin] and he took off around the back of the chow hall by the yard where they caught him. It was about 10 am at the time, and about eight guards jumped him, some 300 pounders, too."
According to official sources about 20 prisoners from the adjoining rec yard scaled a fence and attacked the six guards who were cuffing Miffin. Reinforcements were called and shortly after they arrived ...
Heightened tensions between prisoners and guards stemming from the July beating death of Frank Valdes at the hands of Florida State Prison guards may have contributed to a September clash between prisoners and guards at the Union Correctional Center in Raiford.
Whitestone Foundation exposes programs designed to warehouse sex offenders. Since organizing in 1998, Whitestone has gained national attention. Our missions: 1) provide critical analysis of civil commitment programs designed to re-incarcerate criminals in indefinite confinement (touted as mental health treatment), and 2) educate how restorative justice principles apply to sex offenders.
Whitestone was founded in Washington, the first state to develop sex offender civil commitment in 1990 (RCW 71.09). Civil rights litigation has forced costs of incarceration in Washington's program to over $400,000 per resident per year!
Such laws as 71.09 prove current public policy moves to stigmatize and vilify certain criminals, broadening the sanctions on this offender type to prolonged and indefinite punishment, shifting mission from rehabilitation to vengeance toward some offenders. Nothing stops the lawmakers from targeting other criminals, too. Washington state just passed civil commitment for substance abusers (RCW 72.09).
Whitestone Foundation produces a monthly newsletter addressing the practices of local and national civil commitment schemes, rulings on legal challenges of these laws, and any news that might impact public policy as it relates to the civil commitment of sex offenders. Newsletter rates ...
Whitestone Foundation Focusing on New Post-Sentence Civil Commitment Laws
In 1984, Cal Brown was convicted of assaulting an Oregon woman. At that time, he had an extensive criminal record, including a 1977 conviction involving a knife assault on a California woman.
When Brown was paroled in 1991 he was classified as requiring the highest level of supervision. He was placed under the supervision of a DOC parole officer who specialized in supervision of sex offenders because his criminal record involved "potentially sexually predatory behavior."
The parole officer was aware of Brown's history of "sexually predatory and physically assaultive conduct towards women and his sexual fantasies regarding female bondage and violence toward women." He also knew that Brown had a history of absconding from supervision.
Within two months of being paroled, Brown absconded and kidnapped a Washington woman. He raped, sodomized and tortured her for 36 hours before stabbing her several times and leaving her to die in the trunk of a car.
Brown then traveled to California where he attacked another woman with a knife ...
The Oregon Court of Appeals upheld a trial court judgment against the Department of Corrections (DOC), concluding that violent crimes committed by a parolee were a reasonably foreseeable consequence of inadequate parole supervision.
On June 13, 1996, Melissa Ferris was booked into the Kennebec County (Maine) Jail. The following evening Ferris complained to jail nurse Sprowl that she was having a miscarriage. Sprowl, who was employed by Allied Resources for Correctional Health (ARCH), failed to provide meaningful treatment, and within hours Ferris miscarried.
Initially, Ferris brought suit in state court against the county, ARCH, Sprowl and two jail g uards, but the action was promptly removed to the federal forum. In her amended complaint, Ferris asserted three counts: (1) a civil rights violation, (2) medical negligence, and (3) negligent infliction of emotional distress. This opinion is limited to Sprowl's motion to dismiss.
The court easily rejected Sprowl's defense of failure to state a claim, finding that Ferris's medical condition "was plainly serious," and noting that "Sprowl apparently made no effort to assess or treat" Ferris, beyond some cursory maneuvers. The court recognized that "clearly inadequate" treatment is tantamount "to a refusal ...
A federal district court in Maine held that a miscarriage is a serious medical condition, but dismissed a state law medical negligence claim for failure to comply with the pre-suit screening requirements of the Maine Tort Claims Act (MTC).
This non prison case arose when a woman basketball coach was fired after complaining about being paid less than her male colleagues. She filed a discrimination suit which she lost on the merits. The district court then taxed her with $46,710.97 in costs after determining the defendants were the prevailing party.
The court of appeals affirmed the case on the merits but held that the district court had abused its discretion in taxing the costs against the plaintiff. Fed.R.Civ.P. 54(d)(1) allows for costs, other than attorney fees, to be paid to the prevailing party. The rule creates a presumption that the prevailing party will be awarded costs unless the losing party can demonstrate why costs shouldn't be awarded.
Attorneys general in various states, Washington and Michigan in particular, frequently seek costs against losing prisoner plaintiffs in order to retaliate against those plaintiffs and deter other prisoners from filing ...
The court of appeals for the Ninth circuit held that a district court abused its discretion in denying a motion to retax costs when the losing plaintiff was indigent and the effect of taxing costs against the plaintiff would chill future civil rights claimants.
In 1995, Stanley McPherson was a state prisoner confined to the Orleans Correctional Facility in New York. When his mother died, McPherson's brother contacted the Orleans chaplain's office to arrange for his transportation to New York City for the funeral. However, Orleans deputy superintendent R.J. Kirby denied the request.
In 1997, McPherson sued Kirby and three other prison officials for violating his Eighth Amendment rights. Significantly, he sought a "restraining order of retaliation," in addition to damages.
Early in the proceedings, the district court issued a sua sponte order dismissing all claims, except those against Kirby. Eventually; Kirby moved for summary judgment, and his motion was duly supported by an affidavit listing plausibly valid reasons for denying McPherson's request.
In his opposition, McPherson alluded to affidavits he would provide. These affidavits purportedly contradict Kirby's averments, and show that Kirby's decision was actually predicated on a retaliatory animus. However, McPherson failed to file any of these supporting ...
The U.S. court of appeals for the Second Circuit held that it is inappropriate to enter summary judgment against a pro se litigant if there is no indication that the litigant understands the requirements for summary judgment.
CA: A July 10, 1999 brawl at the Pritchess Detention Center in Saugus that involved 50 prisoners left 12 with minor cuts and bruises.
CA: Stan Blondek, 35, a staff psychologist at a California Youth Authority facility in Stockton, was fired and jailed in Sept. 1999 for introducing biased testimony on behalf of a convicted rapist and murderer. Blondek was found in contempt of court for providing only some of the documents related to the mental condition of prisoner Donald Schmidt, 27, during a parole hearing. Blondek admitted on cross-examination that he was not licensed by the state and that his degrees were earned from a correspondence school.
CA: Veteran state prison guard Dennis Leroy Armstrong, 48, charged with having sex with female prisoners at the Northern California Women's Facility in Stockton, pleaded no contest to two misdemeanors on Aug. 10, 1999. By entering into a plea agreement he avoided the maximum penalty of one year in ...
Brazil: More than 40 prisoners escaped from a jail in Sao Paulo on August 15, 1999 after twenty men overpowered, beat and tied up the guards and unlocked the cell doors. A shoot-out with police left one of the jailhouse liberators dead.