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Prisoner Education Guide

Prison Legal News: April, 2000

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Volume 11, Number 4

In this issue:

  1. California's No Parole Board (p 1)
  2. Guards Fired in Massachusetts Sex Abuse Cases (p 3)
  3. Virginia DOC Says 'No Pattern' of Sexual Abuse (p 4)
  4. No Qualified Immunity for Unsafe Working Conditions (p 4)
  5. From the Editor (p 5)
  6. Warrant Required Despite Private Prison Contract (p 5)
  7. Discovering America As It Is (p 6)
  8. Race to Incarcerate (p 6)
  9. Washington Health and Safety Standards Apply to Prison Work Places (p 7)
  10. Washington Prisoner May Not Challenge Underlying Infraction in Four Strike Disciplinary Violation (p 7)
  11. Four Florida Prison Guards Face Murder Charges (p 8)
  12. U.S. Political Prisoner Info (p 8)
  13. Texas Prison Rocked by Guard Killing, Riot (p 9)
  14. Two Die during Latest Angola Escape Attempt (p 10)
  15. Prison Must Provide Medication Supply to Released Prisoners (p 11)
  16. New York Federal District Court Rules Nassau County Strip Search Policy Unconstitutional (p 12)
  17. Virginia Court Requires Pro Se Prisoner Plaintiff to Appear Via Video Conference (p 12)
  18. Eleven Guards Injured in CA Ruckus (p 13)
  19. Flight to Texas Execution 'Not Life Threatening' (p 13)
  20. HIV+ Prisoners Not Qualified For Rehabilitation Act Benefits (p 14)
  21. Turkish Political Prisoners Massacred (p 16)
  22. NY Prisoner Worker Awarded $90,000 in Accident (p 16)
  23. Notes from the Unrepenitentiary (p 17)
  24. $4.1 Million Award In Suit Over Sexual Assault of Prisoners by Official (p 18)
  25. No Immunity for Media Defendants in Ridealong Suit (p 18)
  26. Error in Electronic Docket Tolls Appeal Deadline (p 18)
  27. ADA Applies to Parole Claims (p 19)
  28. Class Action Prisoners Must Show Actual Injury to Maintain Access to Courts Relief (p 20)
  29. $105,000 Awarded in Michigan Wrongful Imprisonment Suit (p 20)
  30. Long Term Segregation of Security Threat Group Okay (p 21)
  31. Seventh Circuit Prisoners Must Exhaust Futile Grievance Remedies (p 22)
  32. California PIA Chief, Folsom Mayor, Arrested (p 22)
  33. Pretrial Cold Cell Violates Fourteenth Amendment (p 23)
  34. En Banc Ninth Circuit Upholds Jail Porn Ban (p 24)
  35. Denial Of Food and Medicine Supports Eighth Amendment Claim (p 25)
  36. $3,000 Awarded in Wrongful Release Suit (p 25)
  37. South Carolina Prisoner Wins Excessive Use of Force Suit Pro Se (p 26)
  38. Qualified Immunity Granted for Pre-1996 ADA Violation (p 27)
  39. Tenth Circuit Holds Prison Officials Liable for Failing to Provide Religious Meals (p 27)
  40. News in Brief (p 28)

California's No Parole Board

With no change in the statutory standards for lifer parole hearings, the CA Board of Prison Terms (BPT) has reduced its rate of parole grants from 50% in 1978 to 0.2% in 1998. In April, 1999, newly elected Governor Davis (who has the constitutional power to recommend BPT en banc review of any lifer parole hearing decision, and to personally overrule any murder-lifer parole decision) told the Los Angeles Times that he would not release any murderer, not even of the 2nd degree with extenuating circumstances, under his newly announced personal credo that if you take a life, you do "life". In so doing, he and his hand picked (no)parole board have dissolved the distinction between all degrees of murder, and have unilaterally retrospectively resentenced all such prisoners to life without the possibility of parole (LWOP). Of California's 166,000 state prisoners, the BPT has discretionary parole authority over the approximately 20,000 indeterminately sentenced "lifers". (All other California prisoners have determinate terms and are automatically released thereafter onto three years of parole, unless they are instead civilly committed as "sexual predators" or "mentally disordered offenders").

It is no secret that the shut-down in paroles is not ...

Guards Fired in Massachusetts Sex Abuse Cases

Four guards were fired from the Suffolk County House of Correction in Boston in August and October 1999 on charges that they had sexual contact with female prisoners. One of the prisoners became pregnant in what was described by the Boston Globe as a "guard-inmate drugs-for-sex ring." The charges rocked the Suffolk County Sheriff's Department and spurred multiple lawsuits, and prompted investigations by the FBI and Suffolk County District Attorney's Office.

In November 1999 guard union members, who had remained shamed and largely silent as four of their own lost their badges, erupted in outrage after Lieutenant Alvin Boudrow was fired in connection with the scandal. According to union officials and Lt. Boudrow's attorney, he was fired after he jokingly used the phrase "tip of the iceberg" in a conversation with a superior.

In an interview with the Boston Globe, Suffolk County Sheriff Richard J. Rouse defended the firing. He said that the manner in which Lt. Boudrow conveyed the comment--saying it twice to Special Sheriff Brian Byrnes as they passed the women's unit of the jail where the sex abuse occurred--indicated that he knew about other possible instances of abuse. When Rouse asked Boudrow to ...

Virginia DOC Says 'No Pattern' of Sexual Abuse

In 1999 the Virginia Department of Corrections conducted an internal review of 44 complaints of sexual assault, harassment and fraternization between prisoners and staff of the Fluvanna Correctional Center for Women, all since the prison opened in April 1998. Even though 13 employees have been fired or resigned due to sex abuse allegations, the DOC concluded that there was no pattern of sexual abuse.

Of the 44 incidents reviewed, 29 were investigated by the DOC's Inspector General's Office, while 15 allegations of fraternization were considered minor enough to be referred to FCCW warden Patti Leigh Huffman's office.

Of the 29 cases investigated, 16 involved sexual assault or harassment (the other 13 were fraternization allegations). Of those 16, four were determined to be founded, six were unfounded, one was inconclusive and five were pending further investigation at the time of the report.

A total of 13 prison staff were either terminated or resigned, five cases were referred to the Fluvanna County commonwealth's attorney for possible prosecution and one former employee was indicted, said the report.

Yet the report - written by the DOC Inspector General's Office - concludes that "There is no pattern of sexual assault/harassment at ...

No Qualified Immunity for Unsafe Working Conditions

A federal district court in New York held that a risk of future harm to a prisoner from dangerous chemicals at his prison job violates a clearly established right, from which prison officials are not immune. The court further held that the statute of limitations in these matters does not begin to run until the exposure is discovered.

From July 1989 until he was transferred in November 1991, Clifton Crawford was a New York state prisoner assigned to the Corcraft metal shop at Attica Correctional Facility. During this period he worked at an assortment of jobs, including 16 months as a spray painter.

On July 6, 1994, Crawford sued seven prison officials for exposing him to dangerous chemicals while he was working for Corcraft. The parties consented to magistrate proceedings, and the defendants moved for summary judgment on three theories.

The first issue focused on the involvement of the various defendants. The magistrate found that Crawford's pleadings failed to show personal involvement for four of the officials. As a result, those four were dismissed.

Next, the court recognized that prisoners are protected under the Eighth Amendment from the threat of future harm that may be caused by exposure to ...

From the Editor

As this issue goes to press it is too early to have received any response on the matching grant campaign. Between May and January 2001, each issue of PLN will contain a bar graph showing how much has been donated to date and how much we need to raise to get the entire $15,000. We hope readers will contribute so we can continue to afford a second staff person.

Fred and Linda, PLN's office staff, want to remind readers that because PLN is mailed via third class mail, the post office does not forward PLN if you move. Instead, each issue is returned to PLN and the post office charges us 55¢ for each returned copy. If you move, or plan to move, please notify the PLN office immediately. Some prisons and post offices wait several months before returning undelivered copies of PLN, if they do at all, which is our only way of knowing you have moved if you don't tell us.

We only replace undelivered copies of PLN to institutional subscribers. Anyone else needing replacement copies of PLN due to a change of address needs to reimburse the postage.

PLN's office staff requests that ...

Warrant Required Despite Private Prison Contract

The Court of Appeals for the Fifth Circuit held that a home detainee's contract with a private confinement company allowing warrantless home searches was invalid under Louisiana law. Therefore, any evidence from a warrantless search of his home was properly suppressed.

Joshua Francis was sentenced to two years in jail, with home incarceration, after pleading guilty to cocaine charges in Louisiana state court. Louisiana Home Detention Services (LHD) is a private company that monitors people assigned to home incarceration. It has a contract which it requires defendants to sign. Among the standard contract conditions are a clause where the defendant "agrees" to submit to warrantless home searches by LHD staff. Failure to consent to such searches will lead to imprisonment.

Local police received anonymous tips that Francis was dealing drugs from his home. Police contacted LHD about their ability to search Francis's home without a warrant. LHD then went to search Francis's home "with police assistance" and a police drug dog. When police arrived Francis told them he could not give consent to a search of the home as it belonged to his girlfriend. The girlfriend initially denied consent to search but changed her mind when police ...

Discovering America As It Is

by Valdas Anelauskas, Clarity Press, Inc., Atlanta, Georgia, 1999, 584 pages

Review by Hans Sherrer

Discovering America is Valdas Anelauskas' challenge to the oft heard claim that America is the greatest country in the world.

As a former Soviet dissident who emigrated to the United States ten years ago with stars in his eyes, Valdas Anelauskas is uniquely qualified to write a book that looks at America from a perspective different from the one promoted by Time magazine and Kathy Lee Gifford.

Two of this country's flaws that Anelauskas focuses on are that it's not as free as people in Russia are led to believe, and it has a class structure organized by one's economic condition, social standing, and political connections. These observations about defects in American society aren't original, but they have special meaning because of his background.

The most ardent supporters of what Anelauskas refers to as American capitalism readily admit that there is not and never will be economic, social, or political equality in this country. However, they religiously advance the "rising tide" theory of prosperity and social justice. That theory is based on the notion that everyone in society benefits from the ...

Race to Incarcerate

by Marc Mauer of the Sentencing Project,The New Press, 1999, 224 pages

Review by Rick Card

If understanding the social, political, and financial issues associated with our nation's massive prison system was a solution in itself, Marc Mauer's book, Race to Incarcerate, would spell the end of the prison industrial complex.

Race to Incarcerate is a statistical history of the America's burgeoning prison population. Mauer discusses the politics leading to our nation's current "get tough" stance on crime, and talks about the effects it is having on society. Unfortunately, his message sometimes seems lost in a litany of statistics.

Mauer writes like an economist, explaining America's massive prison build-up in a relentless series of cold numbers. He seems oblivious to the fact that those numbers represent real people; men and women whose lives hang in the balance. There is no denying the facts spelled out in Race to Incarcerate, but those facts by themselves add little to the ongoing struggle of those forced to endure their meaning.

This book appears aimed at scholars and criminal justice experts-those who see the problems but never feel them. It reiterates the data found in almost every book ...

Washington Health and Safety Standards Apply to Prison Work Places

The Washington State Supreme Court has held that the Dept. of Corrections (DOC) must comply with electrical licensing and safety laws, but not competitive bidding and prevailing wage laws, when managing prisoner labor.

The National Electrical Contractor Association (NECA) and the International Brotherhood of Electrical Workers (IBEW) filed a complaint against Washington state's DOC and Department of Labor and Industries (DLI) alleging the DOC's use of prisoner labor to perform electrical work on prison facilities violates the state's electrical licensing statute, Washington Industrial Safety and Health Act (WISHA), prevailing wage and competitive bidding statutes.

As a preliminary mater, the DLI was dismised as a defendant by the lower court, finding it was not a necessary party to the suit because the director and the DLI have discretion to determine when, who, and how to inspect use of electrical labor, and whether to issue citations.

The court dismissed with prejudice NECA/IBEW's claim that DOC violated the prevailing wage and competitive bidding laws. The court subsequently entered summary judgment in favor of the DOC, finding that NECA/IBEW did not have standing to bring claims on behalf of prisoner workers under WISHA, and that the DOC has ...

Washington Prisoner May Not Challenge Underlying Infraction in Four Strike Disciplinary Violation

In the November 1998 issue of PLN we reported on In re Gronquist, 89 Wn.App. 596 P.2d 497 (WA Ct.App.Div.I 1997), where the Washington Court of Appeals granted Derek Gronquist's personal restraint petition alleging that he had been denied due process at a disciplinary hearing. The Department of Corrections (DOC) was granted review by the Washington Supreme Court and it reversed the appellate decision.

Gronquist, a Washington prisoner, was cited by prison officials at Clallam Bay Corrections Center for four general (minor) infractions. He was subsequently issued a serious infraction notice charging him with violation of Washington Administrative Code (WAC) 137-28-260(657) by having committed four minor infractions within a six-month period. Hearings with respect to such serious infractions are commonly referred to as "657" hearings.

At his 657 hearing Gronquist asserted the following defenses: (1) the unauthorized exchange of tobacco infraction was a minor infraction that resulted in an on-site adjustment and therefore could not be considered a minor infraction for purposes of a 657 serious infraction, (2) he was unconstitutionally denied the right to appear at his tobacco infraction hearing, and (3) he could not be found guilty of a 657 serious ...

Four Florida Prison Guards Face Murder Charges

Nine guards from Florida State Prison's "X-Wing" were suspended while state law enforcement investigators probed their role in the July 17, 1999 beating death of X-Wing prisoner Frank Valdes [see page 1 of the October 1999 PLN]. On February 2, 2000, four of the suspended guards were indicted and arrested on second degree murder charges. They were immediately fired by the Florida Department of Corrections.

The indictment accuses the former guards of killing Valdes "by kicking and striking him with their feet and hands." The DOC letter firing the four admonished them for "fail[ing] to summon medical assistance" for Valdes.

An autopsy report showed that every one of Valdes' ribs were broken, there were boot marks imprinted on his body and his testicles were swollen. In reports filed by the guards immediately after Valdes died, they acknowledged that force was used to extract Valdes from his cell. But they contended that Valdes was fatally injured later, when he repeatedly flung himself off his bunk and cell bars.

Captain Timothy A. Thorton, Sgt. Jason P. Griffis, Sgt. Charles A. Brown, and Sgt. Robert W. Sauls were booked into the Bradford County Jail on Wednesday, Feb. 2nd. All four were ...

U.S. Political Prisoner Info

The Anarchist Black Cross Federation is a group dedicated to providing political and material support to political prisoners and prisoners of war. They currently distribute one of the largest selections of books, tapes and videos by and about American political prisoners anywhere. The proceeds of the sales go directly to support the prisoners themselves.

Their selection includes booklets by political prisoners Sundiata Acoli, Ray Levasseur, George Jackson, Assatta Shakur, Bill Dunne, Pat Moloney, Mutulu Shakur, Jalil Muntaqim, Carmen Valentin, Marilyn Buck, Laura Whitehorn and many more. For a free catalog contact: Jacksonville ABC, 4204 Herschel, Suite 20, Jacksonville, FL 32210. (973) 389-9496.

Texas Prison Rocked by Guard Killing, Riot

A guard at the McConnell Unit prison in Beeville, Texas, was fatally stabbed a week before Christmas, 1999. Three days later 80 convicts escaped from their ad-seg cells and took control of the unit for three and a half hours before riot squads regained control.

Texas prison spokesman Larry Todd said the trouble began Friday December 17 at 3:45 p.m. when 37 year old prison guard Daniel Nagle was discovered laying in a pool of blood by a fellow guard. Nagle was apparently killed by one or more prisoners near the entrance of a crafts area.

A thin metal rod, "like a welding rod," about 6 to 9 inches long with a sharpened tip was found near Nagle's body, Todd said. A rag wrapped around one end of the weapon served as a handle.

The prison was immediately placed on lockdown and investigators began interviewing all prisoners who were in the area. The attack appears to have been planned, said Todd, but he declined to speculate on a motive.

PLN has learned, however, that the killing may have been planned by members of a prison gang and intended as retaliation for the state's policy of entombing ...

Two Die during Latest Angola Escape Attempt

Two Die During Latest Angola Escape Attempt

by Dan Pens

A guard and a prisoner were killed December 28, 1999 at Louisiana's maximum security penitentiary at Angola during a bungled escape attempt that ended after a two hour hostage standoff.

The guard, Captain David Knapps, 49, was beaten to death with a hammer when he refused to give up his keys to six prisoners, all serving life without parole, said Warden Burl Cain.

The warden said the incident began at about 8:30 p.m. in Camp D, an 850 bed unit of cellblocks and dormitories. A sergeant, Reddia Walker, noticed Capt. Knapps struggling with several prisoners near the camp's educational building. Walker sounded her alarm and ran to help, but she and another guard, Lt. Douglas Chaney, were taken hostage along with Captain Knapps and held hostage at knife point in a classroom.

The warden arrived, backed by the prison's tactical team, and began negotiating with the prisoners. Cain told the New York Times that one of the prisoners, 26 year old Joel Durham, hollered out: "I've got nothing to lose. I came here as a young man. I'm going to die in prison ...

Prison Must Provide Medication Supply to Released Prisoners

by Matthew T. Clarke

The Ninth Circuit has held that prison officials must provide a supply of medications to prisoners requiring medication when they are released from prison.

Timothy Wakefield, a California state prisoner who requires psychotropic medication to control his Organic Delusional Disorder (ODD) and attendant violent outbursts, filed a civil rights action under 42 U.S.C. § 1983 alleging that a prison guard violated his due process rights and subjected him to cruel and unusual punishment when he refused to give Wakefield a prescribed two-week supply of medication upon his release from prison.

Wakefield had been incarcerated at San Quentin. During his incarceration, he was prescribed and took Navane, a psychotropic medication, to control his ODD. Shortly before his release, Wakefield met with the prison's staff psychiatrist. The psychiatrist prescribed Wakefield a two week supply of Navene, to be issued to him upon release.

When Wakefield was released, he informed the guard handling the release procedure about the medication. The guard told Wakefield that "there wasn't any medication available" and refused to even call the prison medical staff to check on Wakefield's prescription. The guard's only explanation was that he was running late paroling ...

New York Federal District Court Rules Nassau County Strip Search Policy Unconstitutional

Ray E. Shain was arrested in Nassau County, New York, after police received a domestic disturbance call, and subsequently remanded by a Nassau County District Court Judge to the custody of the Nassau County Sheriff at the NCCC. Upon arrival, in accordance with the uncontested written policy of NCCC, Shain was subjected to a strip and visual body cavity search. He was not touched, but he was told to disrobe and the areas under his arms, behind his ears, in his mouth, between his buttocks, and under his genitals were inspected. Shain filed suit under 42 U.S.C. § 1983, alleging, among other issues, that the blanket strip search policy violated his Fourth Amendment right to be free from unreasonable search and seizure.

In granting Shain summary judgment limited to the strip search issue, the court noted that the Second Circuit had held such blanket strip search policies to be unconstitutional as far back as 1986. See: Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), cert. denied, 483 U.S. 1020 (1987). This precluded the defendants from raising qualified immunity as a defense, even though Nassau County claimed it had unique security concerns peculiar to NCCC. Because of ...

Virginia Court Requires Pro Se Prisoner Plaintiff to Appear Via Video Conference

by Matthew T. Clarke

A federal district court in Virginia has held that a pro se prisoner must present his civil rights case to the jury via video conferencing.

Michael S. Edwards, a Virginia state prisoner, filed a civil rights suit under 42 U.S.C. § 1983, against Virginia guards, seeking monetary damages. He requested a jury trial. Virginia transferred Edwards to New Mexico "due to his extensive enemy situation" throughout the prison system "and the lack of a viable housing assignment for him in Virginia."

The court ordered the parties to brief whether Edwards should be allowed to attend the trial in light of Muhammad v. Baltimore City Jail, 849 F.2d 107 (4th Cir. 1988), which held that plaintiff prisoners in a civil rights action had no absolute right to be present at a jury trial. The defendants took the position that Edwards should have to pay the $8,652.00 estimated costs of transportation and recommended the court consider video conferencing as an alternative. Edwards countered that he was indigent and asked that state be required to produce him at their expense. Edwards did not respond to the video conference suggestion.

The court noted that courts throughout ...

Eleven Guards Injured in CA Ruckus

Eleven guards were treated for injuries resulting from a November 22, 1999 incident at the High Desert State Prison in Susanville, California prison authorities said.

One guard had two teeth knocked out, The Sacramento Bee reported, during an attack by about 60 prisoners who refused to be strip searched.

"They were trying to kill people. It was full-blown riot," said a spokesperson for the prison guards union (which has been known to exaggerate the seriousness of incidents to bolster the false claim that their members walk "the toughest beat in the state.")

According to official prison sources, a strip search was ordered after a fight between two prisoners turned up a pair of weapons. Ninety prisoners were searched and locked up, but about 60 others refused and instead attacked guards.

About 10 prisoners were treated for injuries after the uprising was stopped with pepper spray, batons and "physical force," said a prison spokesperson.

Source: Associated Press

Flight to Texas Execution 'Not Life Threatening'

Texas prisoner David Martin Long had a date with the nation's busiest executioner (who had already dispatched 31 souls in 1999) on Wednesday, December 8, 1999. But Long decided to go out on his own terms: prison guards found him unconscious from a drug overdose Monday morning. Long had apparently hoarded his anti-psychotic drugs and took them in a nearly successful suicide attempt.

Texas prison officials promptly rushed Long to a Galveston hospital, where he was placed on life support in the intensive care unit. Dr. Alexander Duarte, the physician in charge of the case, told the New York Times that Long's condition improved from critical to serious Tuesday and he was taken off the ventilator. Dr. Duarte said Long still required oxygen and continual medical care. Under normal circumstances, he said, he would probably keep Mr. Long in the intensive care unit for another day or two.

But the circumstances were far from normal. On Wednesday the U.S. Supreme Court rejected Mr. Long's final appeal. State prison officials approached Dr. Duarte and asked him to sign an affidavit stating that Mr. Long could be safely transported to Huntsville, a request that he refused. But Dr ...

HIV+ Prisoners Not Qualified For Rehabilitation Act Benefits

The U.S. court of appeals for the Eleventh Circuit, sitting en banc, held that because prisoners infected with Human Immunodeficiency Virus (HIV+) pose a "significant risk" of transmission to uninfected prisoners, they are not "otherwise qualified," as required under § 504 of the Rehabilitation Act (RA) for benefits under that RA. As a result, the Alabama Department of Corrections (ADOC) could not be compelled under the RA to provide integrated program participation with uninfected prisoners.

This case was commenced in 1987, as Harris v. Thigpen, in response to the application of Ala. Code § 22-11A-17 (1975) to ADOC prisoners. This law mandates the testing of "[a]11 persons sentenced to confinement or imprisonment" in Alabama, for "sexually transmitted diseases." Section 22-11A-18 provides for the quarantine or isolation of all persons having notifiable diseases.

As the AIDS epidemic began to manifest itself within the prison system, ADOC officials implemented a policy of isolating all HIV+ prisoners at one of two state prisons. Males were segregated at the Limestone Correctional Facility in Capshaw, while females were confined to the Julia Tutwiler Prison for Women at Wetumpka. The inexorable result of this policy was the unavailability of many ADOC programs and activities to HIV ...

Turkish Political Prisoners Massacred

On September 26, 1999, eleven political prisoners in a Turkish prison were massacred by police. The victims were imprisoned members of the People's Revolutionary Liberation Front Party (DHKP-C) and the Communist Party of Turkey-Marxist-Leninist (TKP-ML). Both organizations are currently waging people's wars to overthrow the Turkish government.

On September 26, 1999, police stormed the Uluncanlar prison in downtown Ankara using gunfire and teargas to retake the prison. Police used extreme brutality and took advantage of a tense situation created by prison administrators. Since September 2, 1999, water had been cut off to the prisoners' cells, visits had been prohibited and food packages from the outside had been limited. In Turkey, like most countries, the government does not feed the prisoners, prisoners must rely on friends or family outside to supply them with food. The government later claimed the massacre was justified because the prisoners would not allow guards to inspect a dormitory where, they claimed, a tunnel was being dug. After the massacre no tunnel was found.

In response to the latest massacre, bringing to 27 the number of Turkish political prisoners killed since 1995, prisoners from Turkish revolutionary organizations across the country rioted and took more than ...

NY Prisoner Worker Awarded $90,000 in Accident

In 1995 William Terry was a prisoner at the Lyon Mountain Correctional Facility where he worked as a hay shredding machine operator on the prison dairy farm. While operating the shredding machine without safety shields, Terry's glove became caught in the machine and severed part of his right middle ...

Notes from the Unrepenitentiary

Thinking About Dying and Living at the End of the 2nd Western World Millennium

by Marilyn Buck

Because I'm a Federal prisoner in California, I hear more about what goes on in California state prisons than in other states. Fortunately there exists a progressive, growing prisoner support movement with numerous groups. There needs to be, given the proliferation of the California prison state, run by the California guards union with its maximum control units, brutality, gladiator fights and carnival shooting sprees.

Prisoner support groups have organized hard, protested, filed law suits. Some victories have been won. But in spite of their unceasing labors and dedication, prisoners continue to die at the hands of the state inside these prison walls. Until recently, because of prison and AIDS activists, there was a possibility of a compassionate release when a prisoner was dying of AIDS or cancer. The current governor, Gray Davis, has thrown that out. The prisoner must die in custody.

Women prisoners were recently slapped in the face. The court appointed assessor in the Shumate suit (a class action suit filed by Charisse Shumate and other women prisoners at Chowchilla against medical malpractice and lack of treatment) is prepared to ...

$4.1 Million Award In Suit Over Sexual Assault of Prisoners by Official

$4.1 Million Award In Suit Over Sexual Assault of Prisoners By Official

by Matthew T. Clarke

A federal district court in Texas has awarded two female prisoners who were the victims of sexual assault by a prison official $4.1 million in a jury trial.

Plaintiffs, "A" and "B ...

No Immunity for Media Defendants in Ridealong Suit

In the October, 1999, issue of PLN we reported Hanlon v. Berger, 119 S.Ct. 1706 (1999) where the court held that it violates the Fourth Amendment to the U.S. constitution for police to bring media reporters and photographers with them when they enter the homes of people being arrested or searched.

On remand from the supreme court, the Ninth circuit court of appeals dismissed the police official defendants from the lawsuit as the supreme court had held they were entitled to qualified immunity from money damages for their actions.

The appeals court held that the media defendants in this case, including the CNN station, were liable under Bivens for violating the plaintiffs Fourth Amendment rights. However, as a non government entity the media defendants are not entitled to assert a defense of qualified immunity.

The state law and federal claims against CNN were remanded to the district court for further proceedings. See: Berger v. Hanlon, 188 F.3d 1155 (9th Cir. 1999).

Error in Electronic Docket Tolls Appeal Deadline

The court of appeals for the Eleventh circuit held that a lawyer's reliance on a district court's electronic docketing system to monitor a case's progress would toll the 30 day time limit in which to file a notice of appeal.

As state and federal courts increasingly rely on the Internet to disseminate information, mishaps will inevitably occur.

Wilbert Hollins filed a habeas corpus petition in the U.S. district court in Miami. Hollins' attorney relied on the court's Public Access to Court Electronic Records (PACER) system to monitor the case's progress. PACER allows people to remotely access court records, including the docket, electronically via computer.

Hollins' attorney claimed he never received a written copy of the order denying Hollins' habeas petition. He regularly checked PACER for notice on the case's disposition, but it was never posted. The lawyer learned that the petition had been dismissed fouteen months after the fact by talking to court staff. This was well past the 30 day deadline required to file a notice of appeal.

Hollins'attorney then filed a motion to file a notice of appeal out of time. The court of appeals granted the motion citing "unique ...

ADA Applies to Parole Claims

The court of appeals for the Ninth circuit held that the Americans with Disabilities Act (ADA) applies to claims that prisoners are denied parole primarily due to past histories of substance abuse. The court held that habeas corpus is not the sole remedy for this type of claim. The ruling is significant because it is the first published circuit opinion to apply the ADA to parole claims.

California state prisoners Stephen Bogovich and Charles Thompson are serving life sentences for second degree murder. Both men have received substance abuse treatment while in prison and have been drug free for many years. Since both became statutorily eligible for parole in 1993, they claim they have been denied a release date mainly due to their past history of substance abuse.

The prisoners filed suit in federal court, seeking only injunctive relief, claiming that the California Board of Prison Terms' (BPT) policy of considering their substance abuse history violated Title II of the ADA, 42 U.S.C. § 12132.

The district court characterized the action as one under 42 U.S.C. § 1983 and held that the plaintiffs' sole federal remedy was under habeas corpus. The suit was stayed pending exhaustion of state ...

Class Action Prisoners Must Show Actual Injury to Maintain Access to Courts Relief

by Matthew T. Clarke

The Sixth Circuit has held that prisoner plaintiffs in a class action access to courts lawsuit must show widespread actual injury to maintain an injunction previously ordered by the federal district court.

This involves two consolidated class-action lawsuits by Michigan state prisoners. The Hadix v. Johnson case is ongoing and has been reported extensively in PLN for years. In 1976 the Prisoners' Legal Services of Michigan (PLSM) was established using grant money. In 1978, the Michigan Department of Corrections (DOC) began voluntarily funding PLSM. In 1982, DOC announced its intention to cease funding PLSM. Prisoners sued, claiming that, without PLSM, they would not receive adequate access to courts.

The district court found that the prisoners' right of access to courts was being violated and ordered DOC to provide attorneys to prisoners. Hadix v. Johnson, 694 F.Supp. 259 (E.D.Mich.1988). Prisoners at prisons not covered by Hadix received a similar ruling, Knop v. Johnson, 685 F.Supp. 636 (W.D.Mich. 1988). The two cases were consolidated for appeal and the Sixth Circuit found that the DOC's legal access system was inadequate for prisoners who could not read and write English or lacked ...

$105,000 Awarded in Michigan Wrongful Imprisonment Suit

On April 14, 1999, a Wayne county jury in Michigan awarded Willie Thomas Jr., Larry Reid and Edward Grant $35,000 in damages each. The three men had been Michigan state prisoners who were released after serving their entire sentences. Several months later, the Michigan DOC ordered their arrest claiming ...

Long Term Segregation of Security Threat Group Okay

The U.S. Court of Appeals for the Fourth Circuit held that the long-term segregation of a purported religious sect as a Security Threat Group (STG) violates neither the Free Exercise nor the Equal Protection Clause of the U.S. Constitution. It further held that long-term administrative segregation (ad seg) or maximum custody classification was not cruel and unusual punishment.

In 1995, shortly after Michael Moore assumed control of the South Carolina Department of Corrections (SCDC), the agency applied its STG policy to the members of the Five Percent Nation of Islam (Five Percenters). As a result, about 300 SCDC prisoners, identified as Five Percenters, were placed in ad seg.

SCDC policy states that any prisoner classified as an STG member receives notice of the fact, is segregated and given an opportunity to respond, but not necessarily in that order. The only way out is for the SCDC Director to remove the STG designation from the group, or for the SCDC to recognize that the prisoner was misidentified as an STG member. A prisoner could also simply renounce his affiliation with the STG.

Also in 1995, forty-two Five Percenters individually sued three SCDC officials, including Moore, challenging the validity of ...

Seventh Circuit Prisoners Must Exhaust Futile Grievance Remedies

In two separate rulings, the Seventh Circuit Court of Appeals has held that prisoners must exhaust administrative remedies before filing suit, regardless of the relief sought and no matter how ineffectual the prison grievance system may be.

Eduardo Perez, a Wisconsin state prisoner incarcerated in Texas, slipped, fell and injured his back. A Texas physician recommended surgery. The Wisconsin Department of Corrections (DOC) refused to approve the surgery and ordered a regime of exercise, physical therapy and Ibuprofen. Perez sued the DOC seeking damages for cruel and unusual punishment.

The DOC moved to have the suit dismissed because Perez failed to file an administrative grievance prior to bringing suit as required by 42 U.S.C. § 1997e(a), the Administrative Remedies Exhaustion provision of the Prison Litigation Reform Act. Instead of ruling on the motion, the district court ruled against Perez on the merits. The DOC appealed.

The Seventh Circuit held that § 1997e(a) precludes Perez from bringing suit if he has not exhausted administrative remedies. Adopting the reasoning of Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998), the court ruled that, while the exhaustion requirement is not jurisdictional, it is a requirement which must be met by ...

California PIA Chief, Folsom Mayor, Arrested

On January 27, 2000, Reggie "party meister" Drew, 57, was arrested in a room at the B-7-B Motel in a seedy industrial area of North Sacramento. Drew was charged with five felony and misdemeanor counts for soliciting an undercover policewoman for unspecified sex acts. Drew allegedly offered to pay for sex with cash and crack cocaine. Drew also faces forfeiture of his pick up truck under a new law allowing for the confiscation of vehicles used to facilitate prostitution and drug crimes.

Drew is employed as chief of quality assurance for the California Prison Industry Authority at the prison complex in Folsom. Drew is paid $74,484 a year by the PIA.

Drew had also been mayor of the city of Folsom since 1996. Drew had given the Folsom city council a "state of the city" address a few hours before his arrest. He resigned as mayor two days after the arrest, after spending the night in jail. Drew had no comment for the media on his arrest. He remains employed by the PIA.

Source: Associated Press

Pretrial Cold Cell Violates Fourteenth Amendment

A federal district court in Illinois held that a pretrial detainee's alleged exposure to low temperature in a detention cell, while naked and with no alternative means of protecting himself from the cold, supported a claim of inadequate shelter against county jail deputies and thus stated a claim of deliberate indifference. The court also held that the deputies' alleged thwarting of medical treatment given to pretrial detainee, supported a claim for violation of his right to medical attention. The court further held that the pretrial detainee stated a claim against county jail deputies for conspiring to interfere with his civil rights.

Stanley Anton, a pretrial detainee held in the Dupage County Jail, filed a 42 U.S.C. § 1983 civil rights action alleging, among other things, that he was subjected to unconstitutional conditions of confinement when he was placed naked into an extremely cold cell. Anton complained that Dupage County Sheriff's Deputies Kretovic and Zamora conspired to interfere with his his civil rights by withholding medical attention and adequate heat. The two jailers delayed for several hours in responding to Anton's continuous pleas of being extremely cold. When two nurses finally arrived, they found Anton's body ...

En Banc Ninth Circuit Upholds Jail Porn Ban

By Paul Wright

In the February, 1999, issue of PLN we reported Mauro v. Arpaio, 147 F.3d 1137 (9th Cir. 1998) where a panel of the Ninth circuit appeals court held that a jail policy banning all sexually explicit material was unconstitutional. That ruling was vacated when the court decided to rehear the case en banc. See: Mauro v. Arpaio, 162 F.3d 547 (9th Cir. 1998). [PLN, Apr. 1999]

In a 7-4 ruling, the en bane court reversed the panel ruling and upheld the policy. Besides largely eliminating the First amendment rights of prisoners to a degree no other circuit ruling to date has done, the court took another unprecedented step when it decided that the "reasonableness" test of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987) can be applied to pretrial detainees who have yet to be convicted of any crime.

Jonathan Mauro was a pretrial detainee in the Maricopa county (Phoenix) jail in Arizona. He attempted to subscribe to Playboy but his request was denied by jail officials under a jail policy that banned any publications that were "sexually explicit." Sexually explicit was defined as anything "that shows frontal nudity," including personal ...

Denial Of Food and Medicine Supports Eighth Amendment Claim

The court of appeals for the Seventh circuit held that a prisoner's medical condition was sufficiently serious to support an Eighth Amendment claim, and material fact issues existed as to whether officials acted with deliberate indifference toward the prisoner's serious medical condition.

Orrin S. Reed, a prisoner at the Westville Correctional Facility (WCF) in Westville, Indiana, appealed the district court's grant of summary judgement to the defendants on his 42 U.S.C. § 1983 civil suit.

Reed suffers from many serious ailments that require doctor-prescribed life sustaining medication. In his complaint Reed alleges that WCF superintendent Daniel McBride, Commissioner H. Christian De Bruyn, and Indiana DOC regional director Bruce Lemmon were aware that on many occasions he was not permitted to receive food or medication from prison authorities.

Reed's suit alleges Eighth Amendment violations, claiming that "the denial of doctor-prescribed medicine led to agonizing and extreme pain, internal bleeding, violent cramps and periods of unconsciousness." He also alleged that prison officials withheld food from him several times for periods of three to five days, denying him the "minimal civilized measure of life's necessities."

The named officials were made aware of these deprivations through letters Reed ...

$3,000 Awarded in Wrongful Release Suit

On October 29, 1999, the New York court of claims awarded. $3,000 in damages to Frank Nicchio. Nicchio was a New York state prisoner who was wrongly held 30 days past his release date from prison. Nicchio was granted summary judgment on the issue of liability. The case went ...

South Carolina Prisoner Wins Excessive Use of Force Suit Pro Se

South Carolina Prisoner Wins Excessive Use Of Force Suit Pro Se

By Matthew T. Clarke

In an unpublished opinion, the Fourth Circuit court of appeals has held that a South Carolina federal district court improperly failed to consider a prisoner's affidavit regarding an assault and torture by guards and ...

Qualified Immunity Granted for Pre-1996 ADA Violation

The court of appeals for the Sixth Circuit held that it was not clearly established before 1996 that the Americans with Disabilities Act, (ADA), and Rehabilitation Act of 1973, (Rehabilitation Act), apply to state prisoners. As such, the court concluded that prison officials were entitled to qualified immunity for ADA and Rehabilitation Act violations occuring before 1996.

David Key, a hearing impaired prisoner of the Michigan Department of Corrections, (MDOC), brought suit alleging that prison officials violated the ADA and Rehabilitation Act when they refused to allow him to participate in group therapy for sex offenders.

Prison officials claimed that Key was denied treatment because his need for an interpreter would violate the confidentiality of others in treatment. Key asserted, however, that this constitutes an impermissible form of disability discrimination.

In his initial complaint, Key sought only injunctive relief, requesting an order requiring MDOC to provide him with an interpreter for treatment or an order prohibiting the Michigan Parole Board from considering his lack of treatment in any parole decisions.

Defendants requested summary judgment, arguing that the ADA and Rehabilitation Act did not apply to state prisons. The district court denied the motion. Key then filed an amended complaint, seeking ...

Tenth Circuit Holds Prison Officials Liable for Failing to Provide Religious Meals

Tenth Circuit Holds Prison Officials Liable For Failing To Provide Religious Meals

The Tenth Circuit court of ap- peals has held that prison officials unconstitutionally interfered with a punitive segregation prisoner's exercise of religion when they failed to accommodate the needs of his religious beliefs by delivering Ramadan meals ...

News in Brief

AR: On January 17, 2000, the state prison system banned all tobacco products on prison property. The ban affects 12,000 prisoners and 3,000 employees.

Brazil: On January 1, 2000, riot police stormed the Presidente Bernardes Penitentiary to end a 60 hour uprising by hundreds of prisoners demanding transfers to other prisons. Two of the uprising's prisoner leaders were shot and killed by police, another four prisoners were wounded. Three hostage guards were rescued unharmed.

CO: On December 4, 1999, Bob Sylvester, the director of the Dismas halfway house in Denver, was charged in state court with racketeering, extortion and sexual assault. Prosecutors claim that Sylvester coerced the male residents of the halfway house to have sex with him or he would have them returned to prison. Sylvester is an ex convict who served time for fraud. The Colorado DOC cancelled its contract with Sylvester in 1998 citing mismanagement, filthy conditions and reports of Sylvester sexually preying on the parolees. Prisoner rights advocate Sandi Gostin-Izon noted the Colorado DOC knew of Sylvester's sexual habits as early as 1991 and continued its contract with him.

CT: On November 17,1999, prisoner Pryant Wiseman, 23, died after getting into ...


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