As the number of prisoners in private lock-ups continue to increase, lawsuits filed by them, not unexpectedly, are also on the rise. While that is no surprise to corrections professionals and litigators, what is new are some of the legal theories being pressed and the entities named as defendants. This ...
On June 6, 1996, a California man was arrested on charges of drunk driving after being involved in a traffic accident. He was unable to make bail and was confined in the Los Angeles county jail to await trial. While in the jail he became depressed, incoherent and refused to ...
A PLN supporter who wishes to remain anonymous has offered PLN a $15,000 matching grant. Under the terms of the grant, any prisoners who make a donation will receive a two to one matching donation. Thus, if a prisoner donates $20, PLN will receive a matching grant of $40 from the donor. Individual donations from non prisoners will be matched one to one up to $500. For every dollar a non prisoner donates, PLN will receive a matching dollar. The matching grant offer runs from March 1, 2000 through January 15, 2001, or until we reach the $15,000 limit. The matching grant does not cover the cost of subscriptions, book purchases ...
Thanks to the response our fundraiser has achieved, PLN was recently able to hire a second staff person, Linda, to help with our essential office tasks. Right now the main thing she has been doing is helping Fred, our office manager, get caught up on the many essential tasks that have fallen behind due to the immediate concern of getting PLN published each month. However, as things stand now, we will still need to raise additional funds to ensure we can employ Linda on a continuing basis.
As always I assume that you have filed a civil rights action in federal court against a condition or practice in the prison that you claim is unconstitutional. In this column, I use the term "Civil Rule" to refer to court rules in the Federal Rules of Civil Procedure and "Appellate Rule" to refer to rules in the Federal Rules of Appellate Procedure.
Standards of Review
To decide whether you should appeal, you must think about two things: What kind of ruling the trial court made, and what you plan to complain about on appeal. You must think about these things because of what is called the "standard of review" on appeal. The "standard of review" refers to the law that controls how the appellate court will look at each issue you raise. Some standards of review require the appellate court to give the trial court "deference," meaning that the ...
In my last column, I discussed when you can appeal from a trial court ruling against you and how to appeal if you decide to. I left for this second column on appeals the large question: Should I appeal? In other words, will it do me any good to appeal?
This is a class-action civil rights lawsuit brought under 42 U.S.C. § 1983, complaining of overcrowding at the Jackson County (Alabama) Jail. The defendants were Jackson County and Alabama Department of Corrections (DOC) officials. The district court entered two consent decrees and a permanent injunction requiring the timely removal of state prisoners from the jail.
After passage of the Prison Litigation Reform Act (PLRA), the Attorney General of Alabama and the DOC filed a motion to terminate relief pursuant to the automatic termination provisions of the PLRA. The district court granted the motion without holding a hearing. The plaintiffs appealed claiming that the Attorney General had no standing to file a motion to terminate because Alabama was not a party to the consent decrees and that district court should have held a hearing on the current conditions at the jail and the scope of the ...
The Eleventh Circuit has held that a federal district court must hold a hearing on the current conditions at the prison and the scope of the prospective relief to be terminated before terminating prospective relief in a prison conditions lawsuit under the PLRA's "automatic termination" provision, 18 U.S.C § 3626(b)(3).
State prosecutors alleged that in March 1993, the four Corcoran State Prison Security Housing Unit officers, led by Sgt. Robert Alan Decker, deliberately transferred prisoner Eddie Dillard to the cell of Wayne Robertson, aka the "Booty Bandit" knowing that the younger, smaller prisoner would be raped. At trial, Robertson testified that he had indeed beaten and sodomized Dillard for two days because guards had said that Dillard needed to "learn how to do his time."
But the defense -- led by four adroit lawyers and funded by the guards' union -- countered that the accused guards had no idea at the time that Robertson was a rapist. "I agree that Wayne Robertson is a rapist and a thug, but that fact was not known to the floor staff," said defense attorney Curtis Sisk in his opening arguments. One of the ...
The acquittal in November, 1999, of four California prison Guards charged with arranging for a young prisoner to be raped by Corcoran State Prison's notorious "Booty Bandit" was the result of a massive legal and political show of force on the part of the state's prison guards union, prisoners' advocates say. The four guards were facing nine years in prison.
The 1996 Megan's Law, an amendment to the 1994 Wetterling Act, requires public notice when convicted sex offenders move into a community. Some 14 states provide that public notice by posting photographs, addresses, and conviction records of sex offenders on Web pages, according to the Law Enforcement News. "States are doing this to correspond with the Megan's Law aspect of the Jacob Wetterling Act, and this actually does meet that provision as an inexpensive and reaching way for states to distribute information about sex offenders-their way of doing community notification," said Scott Mattson, research associate with the Center for Sex Offender Management.
On the Virginia State Police's web page, some 4,000 sex offender records can be accessed by the public. But, there are some unintended consequences of using the Internet to notify the public that a sex offender may be in their midst. Web pages are relatively easy for experienced hackers to attack and alter. The possibility of finding a public official's photograph, name, and address listed on a sex offender notification site is a problem. But, such sites also enable sex offenders to contact each other after finding information on the ...
by W. Wisely
The five 30-second ads all begin with the line: "Corcoran officers: They walk the toughest beat in the state," and began airing on cable channels in the Fresno area in September, 1999. Only in Fresno, no other television market. And the ads are only about Corcoran guards, no mention of guards who work in other prisons.
The trial of eight Corcoran guards who were indicted on federal charges stemming from the infamous staging of gladiator fights was scheduled to begin in March, 2000. One month after the Corcoran TV ad spots debuted. In Fresno. Where the eight Corcoran guards face a jury trial.
Jonathan B. Conklin, assistant U.S. attorney, said prosecutors are concerned about the potential impact of the advertisements on jurors, who will all be drawn from the Fresno area. "Any attempts to taint the jury pool" before the trial would be taken "very seriously" by his office, Conklin told The Fresno Bee.
Jeff Thompson, a CCPOA representative denied that the commercials are designed to influence ...
The California Correctional Peace Officers Association (CCPOA), a union representing California prison guards, has launched a year-long campaign of 30-second television ads aimed at improving the public perception of Corcoran prison guards.
Review by Rick Card
Prisoners have played an important role in the entire story of America. From the founding of the New World by Christopher Columbus to the economic power of their cheap labor today, convicts are as germane to America as apple pie or baseball.
Scott Christianson's new book, With Liberty For Some: 500 Years of Imprisonment in America, paints a portrait of our nation that is both undeniable and fascinating. Christianson writes, "Starting in the early seventeenth century and continuing for 150 years ...an organized, international prisoner trade, of which the African slave trade was just one important part, provided the foundation for England's colonial wealth and America's identity." He concludes that "to the extent that American history is the story of immigration, then American colonial history is largely the story of the immigration of prisoners."
Citing a study by A. Roger Ekrich, Christianson highlights the conclusion that a quarter of all British emigrants to colonial America during the eighteenth century were convicts. A fact that positions America similar to Australia as an English penal colony-information unlikely to be found in any high school or college history book ...
by Scott Christianson,Northeastern University Press, 1998
Review by Rick Card
In a sequel to The Sounding Tree, published last year [PLN, May 1999], Lee Dickenson now offers a bundle of unrelated tales about his experience as a Connecticut prison guard. The stories range from administrative incompetence to prisoners on a rampage. And, as if to add another dimension, Dickenson also relates stories of guards that both enforce and violate the rules in tandem.
Despite what appears to be an equal dissatisfaction with superiors, colleagues, and prisoners within the Connecticut Department of Corrections, a close read of The Keeper of the Keys demonstrates that Dickenson himself is as much to blame as anyone for the failures of the prison system.
"Experience has taught me to beware of anything that makes the inmates happy." What a statement! Dickenson shows his true colors by viewing prisoners as suspects based on nothing more than the smiles on their faces. Anyone who has served time knows the guards can't stand prisoners who are cheerful and content. Not only does Dickenson share this pervasive correctional attitude, but he thinks little of expressing it publicly.
While making some valid points about administrative corruption ...
by Lee Dickenson, Lost Coast Press, 1999, 161 pages
The study, Gender and Justice: Women, Drugs, and Sentencing Policy, also examined the impact of drug offenses for women in three states - New York, California, and Minnesota -and found substantial variation among these states. In New York, almost the entire increase (91%) in women sentenced to prison from 1986 to 1995 was accounted for by drug offenses. In California, drug offenses represented 55% of the increase and in Minnesota, 26%.
Minority women have been disproportionately affected by the impact of drug arrest and sentencing policies. Of the women sentenced to prison for drug offenses in the three states, 91 were minorities in New York, 54% in California, and 27% in Minnesota, all substantially greater than the minority proportion of each state's population.
The study attributed the dramatic changes in women's incarceration to several factors: the impact of drug abuse ...
A new study reveals a dramatic surge nationwide of women incarcerated for drug offenses - an 888% increase between 1986-96, in comparison to a rise of 129% for all non-drug offenses. The study by The Sentencing Project documents that while the women's prison population more than doubled during this period, drug offenses account for half (49%) of the rise.
PLN has extensively reported the state and federal litigation challenging the constitutionality of RCW 72.09.480. RCW 72.09.480 is the statute which allows the Washington Department of Corrections (DOC) to seize 35% of all funds sent to Washington prisoners. As reported in the August, 1999, issue of PLN, on May 17, 1999, King county superior court judge Gienna Hall ruled that RCW 72.09.480 was unconstitutional to the extent that it seized community property owned,by the spouses of prisoners. The case, Dean v. Lehman, is a class action lawsuit filed by the spouses of prisoners.
Despite judge Hall's ruling, the Washington DOC continued seizing prisoners' money and stopped only after a contempt motion was filed. Ruling on that motion, the court held that the earlier injunction was not stayed and had gone into effect on may 17, 1999.
The court declined to find defendant Joseph Lehman, the DOC secretary, in contempt. Attempting to evade this ruling, the DOC continued seizing money sent to prisoners unless it had been sent to a married prisoner by their spouse. The Dean plaintiffs filed a second motion for contempt, contending that all funds received by ...
Wright Acted On
In early October, 1999, the Wash- ington Department of Corrections settled a wide ranging lawsuit challenging various aspects of its mail censorship policies. PLN reported the filing of the suit in its November, 1997, issue. The lawsuit had publisher plaintiffs Humanists of Washington, the ACLU's National Prison Project and ...
For years the Washington DOC has charged PDA requesters 35¢ per page for copies of PDA requests. While most government agencies in the state only charge 10-15¢ per page, the DOC charges a higher rate to discourage such requests and make it as expensive as possible for anyone to seek information about DOC operations. The DOC charged 35¢ a page for PDA requests pursuant to its own policy.
However, Washington Administrative Code (WAC) 137-08-110(2), allowed the DOC to charge only 20¢ per page for PDA requests. Derek Gronquist, a prisoner at the Airway Heights corrections center filed suit in Spokane County superior court after he was overcharged for a PDA request. Judge Clark ruled in his favor, finding a violation of the PDA. "The DOC published a fee, in the WAC, of 20 cents per page. There was no basis to charge the ...
On September 17, 1999, Spokane superior court judge Ellen Clark ruled that the Washington Department of corrections has been overcharging for Public Disclosure Act (PDA) requests. RCW 42.17 allows citizens to seek documents from state and local government agencies. RCW 42.17.300 allows agencies to charge "reasonable fees" for photo copies of such documents.
Women prisoners in the Cook county (Chicago) jail in Illinois filed suit over a policy which required that all prisoners being processed for release from the jail be strip searched. The plaintiffs filed a motion for class certification which was granted on April 10, 1997. In August, 1998, the jail defendants asked the district court to decertify the class. The court denied the motion and the defendants immediately appealed even though no final judgment had been entered in the underlying case.
FRAP 23(f) allows for interlocutory appeals of decisions to grant or deny class certification. The rule states that such appeals must be filed within ten days of the ruling being appealed. In this case, the defendants filed their appeal within ten days of the denial of their motion for decertification, but well past when the district court initially granted the motion to certify the class.
In a brief ruling, the court held that the ten day limit of FRAP ...
The Court of Appeals for the Seventh Circuit held that parties seeking to immediately appeal decisions to grant or deny class certification must do so within the ten days prescribed by Federal Rules of Appellate Procedure (FRAP) 23(f).
Northern California Mexican prisoners have been locked down since November 21, 1998, at New Folsom Prison's C Facility. The lockdown began when Northern and Southern California Mexican prisoners, long time enemies, fought on the yard. Ken Hurdle, an ombudsman appointed by California Department of Corrections Director Cal Terhune, talked with leaders for the Norteños in December, 1999, in an unsuccessful attempt to end the conflict, according to The Sacramento Bee. By the time Hurdle talked with the prisoners, they were on the third week of a hunger strike.
The Norteños were offered contact visits with their families, church services, and use of prison telephones if they agreed to talk with representatives from the Southern California Mexican prisoners in the first of several steps intended to return the prison to normal operation. "They rejected those conditions outright," Ken Hurdle said. The protestors said they would only share the yard with black prisoners. Northern California Mexicans and blacks are usually allied in prison. Prison officials refused to consider segregating the yard to keep conflicting groups apart. "Then you'd have two groups normally aligned on the yard at the same time. They would then only have staff as ...
by W. Wisely
In April, 1999, the Michigan DOC settled a class action lawsuit filed by Prison Legal News, Common Courage Press, and Michigan prisoners Larry Lynch and Calvin Holmes over the censorship of the PLN anthology, The Celling of America: An Inside Look at the U.S. Prison Industry (TCOA). Michigan Department ...
The factual claims include the following:
"In 1985 Defendant MDOC began staffing the housing units at all women's facilities with male officers and staff. . . [and] required male officers to supervise women prisoners while the women are performing basic bodily functions in toilets and showers and cells. Male officers and staff routinely enter the women's cubicle areas, showers and restrooms without announcing their arrival.
"Defendants required male officers working in plaintiffs' housing units to perform random and specific clothed body searches on women prisoners which include pat-downs of their breasts and genital areas.
"Defendants allow ...
In March, 1996, seven women pris- oners filed suit in the Washtenaw County Circuit Court against the Michigan Department of Corrections, Director Kenneth McGinnis, and ten individual wardens and officers. (96-6986 CZ) The complaint alleged that the plaintiffs had all "been subjected to various degrees of sexual assault, sexual harassment, violation of their privacy rights, physical threats and assaults on their persons and retaliation by male employees of the MDOC during their incarceration." The plaintiffs brought suit under both the state Constitution and the Michigan Civil Rights Act (1976 PA 45), and were granted certification as a class on behalf of all women prisoners.
A federal district court in Michigan has held that the attorney fees cap in the Prison Litigation Reform Act (PLRA), codified at 42 U.S.C. § 1997e(d), violates the equal protection component of the Due Process Clause of the Fifth Amendment to the United States ...
by Matthew T. Clarke
In the September, 1999, issue we reported Hawkins v. Freeman, 166 F.3d 267 (4th Cir. 1999) where the court held that Irving Hawkins had a right to finality in his sentence where he had been paroled and successfully reintegrated himself into society for two years. The court granted en banc review, and in a 10-1 ruling, reversed the panel and affirmed the denial of habeas relief. The full facts are recounted in the September, 1999, PLN article.
Hawkins was convicted of a drug crime as a habitual offender in 1981. He was not eligible for parole until 2018. The North Carolina Parole commission inaccurately calculated his sentence and released him from prison in 1992. After discovering their error in 1994, Hawkins was reimprisoned. While on parole he had abided by all parole conditions, maintained a job, etc. Hawkins sought habeas relief in the state and federal court systems which was denied.
In the ...
The Court of Appeals for the Fourth Circuit, sitting en banc, held that a North Carolina prisoner had no liberty interest in remaining free when he was erroneously paroled, lived a law abiding life, and was then reimprisoned two years later when the mistake was discovered.
Michael Collins brought suit alleging the defendants violated his constitutional rights when he was attacked by a guard dog while he was incarcerated in the ...
Circuit has barely upheld the constitutionallity of the Attorney Fee Cap Provision of the Prison Litigation Reform Act (PLRA) 42 U.S.C. § 1997e(d).
In 1997 a video surfaced, which was shown on national television, in which jail guards were shown beating and abusing prisoners. The incident led to several civil rights suits seeking money damages as well as a federal criminal prosecution.
In 1999 the U.S. government charged Brazoria jail guards Robert Percival, David Cisneros and Wilton Wallace with federal civil rights charges stemming from the videotaped beating of prisoner Toby Hawthorne.
Percival was acquitted of all charges, despite being on video kicking Hawthorne in the groin. The jury deadlocked in Cisnero's case and convicted Wallace on misdemeanor charges for kicking Hawthorne in the head. Wallace has previous federal civil rights convictions stemming from abusing prisoners at the Brazoria county jail.
Brazoria county district attorney Jeri Yenne was critical of the federal prosecution. Yenne accused the FBI of covering ...
In October, 1999, a federal jury returned acquittals and a minor conviction against private prison guards charged with beating and abusing Missouri prisoners. As previously reported in PLN, some 100 Missouri prisoners were sent to the Brazoria county jail in Texas to relieve overcrowding in the Missouri prison system. The jail was operated by the Bobby Ross Group, a private prison company.
Ron Alford, warden at the CCA prison, was suspended; kitchen manager Rocky Stewart was fired for undisclosed reasons: and CCA guard Shanna Turpin, 29, was charged with introducing contraband into the facility. According to a court affidavit, Turpin was also accused of engaging in a sexual affair with prisoner Moses Martinez.
"I don't know that I would characterize [the alleged misconduct] as isolated," stated Colorado DOC spokeswoman Liz McDonough, "but I don't know that I wouldn't characterize it as isolated. We're talking about multiple allegations involving multiple people." McDonough said "a number" of the 200-person staff at the private prison had quit or been fired. CCA spokesperson Susan Hart declined to comment.
Up to fifteen female employees, including guards and nurses, are suspected of having affairs with prisoners since the Kit Carson facility opened in November 1998. Former guard Shanna Turpin said some ...
On Sept. 17, 1999, Colorado Dept. of Corrections officials confirmed that they are investigating allegations of brutality, sexual misconduct and drug trafficking involving guards at the CCA-operated Kit Carson Corr. Facility in Burlington, which houses around 650 state prisoners. The investigation began in July but was not disclosed until it was almost complete.
Since 1983, Ronnie Randolph has been a state prisoner in the custody of the MDOC. He suffers from profound hearing loss and cannot understand most speech spoken at normal conversational levels. His primary means of communication is sign language.
During the course of his incarceration, Randolph has been confined, for the most part, to the Jefferson City (JCCC) prison, except for the period between 1989 and October 1996, when he was housed at Potosi Correctional Center (PCC).
Throughout this period, Randolph made several requests for the assistance of a sign language interpreter during various prison activities, primarily disciplinary proceedings. His grievance efforts proved fruitless and his administrative appeal were ultimately denied by ...
Eighth Circuit held that a deaf-mute prisoner stated a prima facie claim against the Missouri Department of Corrections (MDOC) for violations of the Rehabilitation Act (RA) and Title II of the Americans with Disabilities Act (ADA) for failing to provide him with sign language interpreter assistance. The court further held that a Missouri statute requiring sign language interpreters for state prisoners could not be used to definitively establish rights and duties under federal law, and that the Eleventh Amendment proscribed a federal injunction to enforce a state law.
This is a lawsuit filed in Missouri federal district court by Missouri state prisoners who were abused while incarcerated in Brazoria County pursuant to its contract with Missouri. Both the beatings and the legal proceedings in Texas were previously reported in PLN. [See: "No Qualified Immunity for Texas Sheriff and CCRI Guards Who Abused Missouri Prisoners," PLN, August, 1999.]
The prisoners invoked jurisdiction under the Missouri long-arm statute, Mo.Rev.Stat. §506.500, to claim that they were third-party beneficiaries of the contract and Brazoria County had breached the contract. The prisoners also asserted an Eighth Amendment cruel and unusual punishment claim under 42 U.S.C. § 1983.
Brazoria County filed a motion to dismiss for lack of personal jurisdiction. The court held that, pursuant to State ex rel. Deere & Company v. Pinnell, 454 S.W.2d 899, 892 (Mo. bane 1970) and State ex rel. Newport v. Wiesman, 627 S.W.2d 874 (Mo. banc 1982), the long-arm statute extended jurisdiction of the Missouri courts to nonresident defendants to the extent allowable under the Due Process Clause of the Fourteenth Amendment.
"To come within the language of the applicable Missouri long-arm statute, the plaintiffs must show that Brazoria County entered into a contract in the State of Missouri. This is undisputed. The claims against Brazoria County, however, must also 'arise out' of that contract. Some of Plaintiff's claims are based on the contract itself and as to those claims long-arm jurisdiction is clearly established."
The Court adds, "The Missouri long-arm statute uses the term 'arises out of and the U. S. Supreme Court uses the phrase 'arise out of or relates to' when it analyzes the Due Process Clause in the context of specific personal jurisdiction. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S, 408, 414 (1984)."
The court held that the similar language meant that the long-arm statute established personal jurisdiction of the Missouri courts over the other claims and "the only remaining question" was whether the Due Process Clause" permitted the suit.
Citing Burger King Corp. v. Rudzewicz, 471 U. S. 462, 474 (1985), the court held that the Due Process clause allows the suit if "the defendant purposely established minimum contacts in the forum state." The "minimum contacts must have a basis in 'some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws."
The court held that the contract--which required Brazoria County to obtain written permission from Missouri officials for non-routine, non-emergency medical, dental, or psychiatric care; required immediate reports to Missouri officials of prisoner deaths or escapes; provided for the return of the prisoners to Missouri when their sentences expired; and specifically provided that the contract was governed by Missouri law and subject to litigation in its courts---met the requirement of ...
A federal court in Missouri has held that Missouri prisoners whose incarceration was contracted to Brazoria County, Texas, could sue Brazoria County in Missouri.
CA: In December, 1999, Charles Scott was arrested by Kern county sheriff's deputies after they found 34 rifles and pistols, tear gas, stingball and flash bang grenades in his home. Police claim the items were all stolen from the California Department of Corrections. Scott claims he bought the items at a yard sale.
CA: On October 31, 1999, the state prison in Tracy was locked down after some 110 Latino prisoners engaged in a mass fist fight in the prison yard. Guards ended the incident with teargas and pepper spray. No serious injuries were reported.
CO: On December 7, 1999, Alfredo Serra, Gonzalo Martinez and Allan Lucero escaped from the Arkansas Valley Correctional Facility in Crowley by cutting and scaling prison fences. All three men were serving lengthy sentences for murder or attempted murder. Parolee Stacey Torres and Serra's mother, Diana Martinez, were arrested by police and charged with aiding the escape.
Columbia: On December 8, 1999, at least 11 prisoners were shot to death and eleven wounded in a shoot out between rival prison gangs at El Modelo prison in Bogota. Media ...
Bermuda: On December 22, 1999, the British territory abolished the death penalty and corporal punishment.