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Prisoner Education Guide

Prison Legal News: May, 2000

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Volume 11, Number 5

In this issue:

  1. Testing Testing: Sweat Patch Under Scrutiny (p 1)
  2. The History of Prison Legal News (p 1)
  3. PLN in Court (p 5)
  4. $880,000 In GA Medical Neglect Suit (p 6)
  5. From the Editor (p 6)
  6. Texas Prison Dentist Settles Dentures Suit for $3,150 (p 6)
  7. $600,000 In GA Medical Neglect Suit (p 6)
  8. Colorado Denies Hepatitis C Treatment as Too Expensive (p 7)
  9. DOJ Investigates CMS Health Care at Missouri Prison (p 8)
  10. Washington Civil Commitment Held in Contempt (p 8)
  11. From the Editor (p 8)
  12. Louisiana Prosecutors Have "Ties" to Murder (p 9)
  13. New Mexico Private and State Prison Phone Rates Challenged (p 9)
  14. CCA Prison Under Gang Control: Death and Injury Suits Filed (p 10)
  15. Five Lawyers in Peru Freed (p 10)
  16. Black Prison and Jail Employees Win Discrimination Lawsuits (p 11)
  17. $150,000 Judgment Against Prison Officials Upheld (p 11)
  18. 2003 Washington Legislative Round-up (p 12)
  19. Post Conviction Update (p 12)
  20. Washington DOC Personnel In-Fighting Results in $230,000 Settlement (p 13)
  21. Retaliation, Publication Ban and Lack of Dental Care States Claim (p 14)
  22. Bad Water Causes Florida Prison Evacuation (p 14)
  23. Investigators Probe Ohio Paroles-For-Sale Scam (p 15)
  24. Book Review: Inmate Litigation (p 16)
  25. FDOC Hazardous to Prisoners' Health (p 16)
  26. Good and Bad News in Haverty Aftermath: No Good Time for Ad-Seg Placement (p 17)
  27. Prison Labor's Race to the Global Bottom (p 18)
  28. Palestinians Still Imprisoned Despite Peace Process (p 19)
  29. Transfer Moots Wiccan's Claim (p 20)
  30. Texas Death Row Hunger Strike (p 20)
  31. Comatose Prisoners Expose the Limits of Mercy (p 20)
  32. California to Outfit All Prison Guards With Stab-Resistant Body Armor (p 20)
  33. International Perspectives on the Death Penalty (p 21)
  34. Nevada Religious Group Gets Federal Money to Help Prisoners, Delivers Nothing (p 21)
  35. Claim For Prospective Relief Moot Upon Release (p 21)
  36. Grievance Procedure Not Required by PLRA in All Lawsuits (p 22)
  37. Wrongfully Convicted in California and New York Awarded Damages (p 23)
  38. City Liable for Jail Sex Shows and Nude Dancing (p 23)
  39. Heck Does Not Bar Evidence in Shooting Case (p 24)
  40. New Mexico Supreme Court Rules in Disciplinary Hearing Remedies (p 24)
  41. $115,000 Settlement in Seattle Jail Strip-Search Suit (p 24)
  42. Absent Plain Error, Objection Necessary to Preserve Issues (p 25)
  43. Magistrate Judge Recuses Self in BOP Medical Treatment Case (p 25)
  44. Denial of Medication Precludes Summary Judgment (p 25)
  45. Dismissal Reversed for Determination Whether Prisoner Was Misled About Remedies (p 26)
  46. Grievances Exhausted When Prison Officials Fail to Respond (p 26)
  47. News in Brief (p 26)
  48. Summary Judgment Reversed on Fact Issues of Guards' Failure to Protect Prisoner (p 27)
  49. 522 Days in BOP Ad Seg States Due Process Claim (p 27)
  50. Jury Awards $700,000 to Chicago Jail Worker for Sexual Harassment (p 27)
  51. California Parole Rescission Panel's Disagreement With Granting Panel Fails The "Some Evidence" Standard (p 28)
  52. Transsexual Prisoners Have Privacy Right (p 28)
  53. Exceeding Doctor's Work Limit Order Actionable Under Eighth Amendment (p 29)
  54. BOP Electric Musical Instrument Ban Upheld by DC Circuit (p 30)
  55. New York Prisoner's Assault Claim Headed for Trial (p 30)
  56. Guard Proclaiming Open Season On Prisoner Actionable (p 31)
  57. Wyoming Prisoners Win Summary Judgment for Increased Security (p 31)
  58. Illinois Governor Announces Death Penalty Moratorium (p 31)
  59. Dismissal Without Notice for Untimely Service of § 1983 Complaint Is Abuse of Discretion (p 32)
  60. Federal Tort Claims Act Suit Limitation Construed in Medical Suit (p 32)
  61. Circumstantial Evidence Sufficient to Defeat Summary Judgment (p 33)
  62. Ninth Circuit Holds Exhaustion of Remedies Mandatory Before Filing Suit (p 34)
  63. Chief Medical Officer Liable On Medical Policy Decisions (p 34)
  64. Kentucky Jury Awards $2,641 to Estate of Murdered Prisoner (p 35)
  65. Retaliation Claim Satisfied by Existence of Major Misconduct Citation (p 35)
  66. Exposure to Second-Hand Smoke States Eighth Amendment Claim (p 36)
  67. No Jurisdiction for Interlocutory Appeal Where Evidence Is Disputed in Failure to Protect Suit (p 36)
  68. Inquiry Required Before Dismissal for Failure to Pay Partial Filing Fee (p 37)
  69. Warrantless Police Search of Prisoners Cell Upheld; Damages Awarded For Retaliation (p 38)
  70. No Appeal Bond Required for Indigent Colorado Litigants (p 38)
  71. PLRA Applies to Prospective Relief; Fees Are Not Prospective Relief (p 38)
  72. Loss of Good Time for Kansas SATP Refusal Upheld (p 39)
  73. South Dakota Attorney Fee Award of $106,877 Upheld Under PLRA (p 40)
  74. Court Modifies Education Plan for Rikers Island Youth (p 40)
  75. Oregon Contraband Conviction Reversed (p 41)
  76. BOP Prisoners Eligible for Drug Treatment Without Documented History of Abuse (p 41)
  77. News in Brief (p 42)
  78. New Jersey Sex Offender Treatment Statute Creates Liberty Interest (p 43)
  79. Qualified Immunity Denied in BOP Transsexual Strip Search (p 44)

Testing Testing: Sweat Patch Under Scrutiny

Sheryl Woodhall a California woman in her late 30s, first lost custody of her four children in 1995, when her youngest tested positive for methamphetamine at birth. The state's Child Protective Services intervened and sent her two older children to live with her parents and placed the younger two in foster care. Woodhall, who acknowledges that she struggled with drug addiction for years, went into a residential treatment center, then to an outpatient program. In October 1998, she got her kids back three days a week under the condition that she continue regular drug testing.

CPS suggested that Woodhall wear a sweat patch, a new drug-testing technology, to show Judge Lois Haight, who was presiding over the custody case, that she was staying clean. The judge believes in this patch," a social worker from CPS told her. Woodhall's first patch fell off, and she lost it. Her second patch came back positive for methamphetamine. So did her third one.

The sweat patch was supposed to solve the problems of urinalysis, but it created a host of its own problems.

Woodhall was ordered back to court. Although random urine tests performed by her outpatient program during the same period ...

The History of Prison Legal News

In May, 1990, the first issue of Prisoners' Legal News (PLN) was published. It was hand typed, photocopied and ten pages long. The first issue was mailed to 75 potential subscribers. Its budget was $50. The first 3 issues were banned in all Washington prisons, the first 18 in all Texas prisons. Since then we have published 120 consecutive issues, grown to offset printing of 32 page issues and now have around 3,200 subscribers in all 50 states as well as in 23 countries. This is how it happened.

In 1987 I entered the Washington state prison system with a 304 month prison sentence. In 1988 I met Ed Mead, a political prisoner and veteran prison activist, at the Washington State Reformatory (WSR) in Monroe, Washington. Ed had been imprisoned since 1976. In that period he had been involved in organizing and litigating around prison conditions and issues. He had also started and published several newsletters, including The Chili Factor, The Red Dragon, and The Abolitionist. By late 1998 Ed and I were jointly involved in class action prison conditions litigation and other political work. Ed's last newsletter, The Abolitionist, had fallen apart over differences he had with ...

PLN in Court

Since PLN started in 1990 we have been censored in prisons and jails around the country. We have always attempted to resolve censorship issues administratively, but in cases where the goal was to keep PLN out of prison at any cost, that obviously wasn't possible. We have aggressively challenged censorship around the country and have won most of our battles. I would like to thank all the fantastic attorneys who have represented PLN in censorship litigation over the years. Thanks also go to those attorneys who volunteered to represent us in suits that we wound up not having to file after all. A brief summary of PLN's closed cases are:

WA Parole Suit: In 1994 Ed Mead and Paul Wright sued the Washington Indeterminate Sentencing Review Board challenging their order that Ed have no contact with any felons for the purpose of publishing PLN. In an unpublished ruling, judge Robert Bryan of Tacoma upheld the ban. The case was dismissed as moot by the Ninth circuit when, after three years, Ed was discharged from ISRB supervision. The suit was sponsored by the ACLU of Washington. Frank Cuthbertson and Mike Kipling represented the plaintiffs. See: Mead v. ISRB.

WA ...

$880,000 In GA Medical Neglect Suit

On February 27, 1999, a Baldwin county superior court jury in Georgia awarded prisoner Stephanie Stitt $600,000 in damages in a medical neglect suit against Correctional Medical Systems (CMS). Stitt fell and injured her back while playing volleyball at the Baldwin State Prison. The Georgia Department of Corrections has contracted its medical care out to CMS. Stitt repeatedly sought medical attention which was denied and delayed. As a result, Stitt suffered a herniated disk that left her with no bowel or bladder control. Stitt now requires daily catheterization and the use of adult diapers.

Stitt filed suit claiming she was denied adequate medical care. The Georgia DOC settled with Stitt for $280,000 before trial. CMS went to trial and the jury awarded Stitt $600,000 in damages against CMS. CMS's defense was that they were providing medical care as practiced in prisons. CMS has appealed the verdict. See: Stitt v. Correctional Medical Systems, Baldwin County Superior Court, Case No. 96-CV-32768-E.

Source: Georgia Trial Reporter

From the Editor

This issue celebrates PLN's tenth anniversary. One thing about PLN is that we have pretty much muddled along and done the best we could. To this day, no one involved in PLN's daily operations has any professional experience in journalism or publishing. We're all self taught and learned as we went. In any event, I'm glad PLN has lasted as long as it has. I hope we are able to bring you another ten years of PLN.

In responding to our reader survey, a large number of people indicated that they would like to see more information about habeas corpus litigation in PLN. Therefore, starting with this issue we will be runnning a quarterly column by Texas attorney Walter Reaves called "Post Conviction Update." This column will report significant court rulings pertaining to post conviction relief.

Beginning with the July issue we will also be running a quarterly column by California attorney Kent Russell dealing with procedural issues in federal habeas corpus litigation. We would like to welcome these two new columnists, and we hope that their contributions will help us to better serve our readers.

As always, your financial support is critical to PLN's ...

Texas Prison Dentist Settles Dentures Suit for $3,150

In April, 2003, a state prison dentist settled for $3,150 a 42 U.S.C. § 1983 suit brought by a prisoner in the federal district court for the Eastern District of Texas, alleging that the dentist refused to provide dentures.

Charles Jackson, a prisoner at the Texas DCJ's ...

$600,000 In GA Medical Neglect Suit

On February 27, 1999, a Baldwin county superior court jury in Georgia awarded prisoner Stephanie Stitt $600,000 in damages in a medical neglect suit against Correctional Medical Systems (CMS). Stitt fell and injured her back while playing volleyball at the Baldwin State Prison. The Georgia Department of Corrections has ...

Colorado Denies Hepatitis C Treatment as Too Expensive

While much attention has been paid lately to denying AIDS/HIV treatment as being too expensive for prisoners, little focus has been aimed at those restricting or denying treatment for prisoner's infected with the hepatitis C virus.

Hepatitis is spreading in institutions across this country at a rate far greater than John Q. Public is aware. Hepatitis C infections, also called non-A, non-B hepatitis, may not truely be on the rise but their detections are increasing. New tests, and more widely spread testing, is revealing an alarming amount of prisoners infected with this potentially deadly virus.

The standard treatment for hepatitis C infections is a two-phase treatment. In phase I, the patient is given shots of a protein-based derivative known as Interferon, three times per week for six months to a year. Interferon is also a naturally occurring substance in the body. Only about 15% of patients respond to Interferon treatment. Phase II, if needed, stacks the Interferon shots with Ribavirin, an antiviral drug. Approximately 45% of patients respond to this combination therapy.

While this treatment regimen seems straightforward enough, it becomes difficult when the patient is a prisoner. First, proper detection requires a blood test for elevated liver ...

DOJ Investigates CMS Health Care at Missouri Prison

DOJ Investigates CMS Health Care At Missouri Prison

by Michael Rigby

Allegations of improper medical treat-ment, lack of medical treatment, and several suspicious deaths at the Women's Eastern Reception, Diagnostic and Correctional Center, a state women's prison in Vandalia, Missouri, has prompted an investigation by the Civil Rights Division of the U.S. Department of Justice (DOJ). Health care services at the prison are provided by Correctional Medical Services (CMS).

Death is no stranger at the Vandalia prison. On March 23, 2003, Crystal Smith was found unresponsive in her cell. She was later pronounced dead. Her sister, Angela Smith Hynes, voiced concerns that Smith may have been denied needed medications.

On July 2, 2003, Vandalia prisoner Al'Deana Simmons, 33, was pronounced dead after she was discovered unconscious. Prison officials told her mother, Virginia Terry, that she had choked on her breakfast; however, the death certificate listed the cause of death as a ruptured aneurysm. Terry said that her daughter had been complaining about poor health care at the prison in her letters and phone calls home. Simmons called home the day before she died. "She said her head was sizzling and that she was going blind," said ...

Washington Civil Commitment Held in Contempt

by Ron Petersen and Tamara Menteer

On November 15, 1999, after 6 years overseeing an injunction, a federal judge issued a ruling finding the Washington state civil commitment facility known as The Special Commitment Center (SCC) , the nation's first civil commitment program designed to re-incarcerate sex offenders beyond the lengths of their original sentences, in contempt of court.

In Judge William L. Dwyer's ruling (Turay v. Seling, C91-664WD, Sharp v. Weston, C94-121WD, and Pedersen v. Hill, C94-211WD, Hall v. Quasim, C95-1111WD, and Petersen v. Dehmer, C96-415WD) he stated, "These basic treatment requirements were ordered long ago; the continued failure to achieve full compliance is unexcused." Judge Dwyer ordered the defendants, Mark Seling, Ph.D., Superintendent, and Vincent Gollogly, Ph.D., acting Clinical Director, to put into place what was ordered in 1994. If the defendants fail to do so, they will be fined $50 per resident, per day, beginning May 1, 1999. The current population of the SCC is 98 residents. The fines will go directly to the court where Judge Dwyer will administer the money to the residents.

Washington's Attorney General, Christine O. Gregoire, has appealed the contempt order to the Ninth Circuit Court of Appeals ...

From the Editor

By now the observant reader will have noticed that this issue of Prison Legal News is 48 pages in length rather than 40. PLN recently switched printers which offered a variety of services, including higher quality newsprint and also allows us to expand in size, something our previous printer was unable to do with their equipment. When PLN first started publishing in 1990 we consisted of 10 photocopied pages. We have grown substantially since then.

We also offer more advertising which is what is allowing us to expand PLN's size at this time. For several years now we have remained committed to using advertising content to support our editorial content with a ratio of 25% ads and 75% news and legal information. As we expand in size and circulation we hope to be able to bring our readers still more quality news and information you can use.

Our past survey responses have indicated that our prisoner readers in particular are interested in more ads for businesses and services that are aimed at or cater to prisoners and their families. If you know of such businesses, please send us their name and contact information and we will contact them to ...

Louisiana Prosecutors Have "Ties" to Murder

Lawrence Jacobs Jr. was on trial for first degree murder in Jefferson Parish Louisiana when an assistant district attorney approached him and whispered "We're going to hang you boy."

Lawrence Jacobs Sr., who was only in the courtroom to support his son, didn't hear the words but he got the same message when he looked at the prosecutor's neckties. Assistant District Attorney Cameron Mary sported a bright red tie, six inches wide, with a white hangman's noose. Another prosecutor wore a tie with the Grim Reaper embroidered on front.

"That's when it really hit me," said the elder Jacobs. "These guys are out to kill my son. And they're making light of it."

The ties were gifts from another prosecutor's wife. In a way the ties reflect the attitude of Jefferson Parish residents. While the murder rate in Jefferson Parish is low compared to New Orleans as a whole, its residents have put eleven people on death row in the last five years compared to two for New Orleans. Jefferson Parish, a suburb of New Orleans had 38 murders in 2002 compared with 258 in the city itself.

District Attorney Paul D. Connick ...

New Mexico Private and State Prison Phone Rates Challenged

Two separate state court class action lawsuits have challenged the excessive phone rates charged to people who accept collect calls from New Mexico state prisoners. The first lawsuit, Valdez v. Wackenhut Corrections Corporation, was filed on December 30, 1999, in Rio Arriba district court. The plaintiffs have family members imprisoned in private prisons or jails run by Wackenhut, Corrections Corporation of America (CCA), Cornell Corrections and Correctional Services Corporation (CSC). Private prisons hold about 30% of all state prisoners in New Mexico and numerous jail detainees. The defendants in the suit include the private prison companies and their employees. The phone service provider defendants are Evercom Systems, Inc. and PCS America, Inc.

The plaintiffs claim that the private prison companies have exclusive contracts whereby prisoners can only place collect calls using the services of the phone service provider defendants, who in turn pay hefty kickbacks to the prison companies in exchange for the contracts. This arrangement prevents the use of competitive services or lower rates by either the prisoner or the people who accept collect calls from them.

The plaintiffs claim that these exclusive contracts and the resulting kickbacks violate the New Mexico Unfair Practices Act, NMSA 1978, § 57-12-1, et ...

CCA Prison Under Gang Control: Death and Injury Suits Filed

Two suits were filed against Corrections Corp. of America (CCA) in less than a week. On April 15, 2003 the family of Iulai Amani sued CCA and the state of Hawaii for "wrongful conduct" resulting in Amani's death. The lawsuit came exactly two years from the date Amani died in the Florence Correctional Center (FCC) in Arizona.

A week earlier Victoriano Ortiz also sued CCA and the state of Hawaii for a severe beating he received at the hands of gang members in FCC. Both incidents occurred less than a week apart; both men were transfer prisoners from Hawaii, being housed in the private prison.

Amani, then 24, died of a heart attack induced by a drug overdose when packets of methamphetamine he had swallowed burst open in his stomach. Amani was a member of the United Samoan Organization (USO) which, at the time of his death, had complete control of the CCA prison.

USO took over the Florence prison on September 12, 2000 "during a riot for power," investigators said. Since that time, gang members openly and actively controlled "the trafficking, use, sale of illicit drugs, the making and use of swipe [a prison-made alcoholic beverage] ... and violent ...

Five Lawyers in Peru Freed

Lima, Peru--

There is good news in the struggle to defend the Peruvian lawyers who are under attack from the U.S.backed Fujimori regime for their courageous work in defending political prisoners. A trial for six of the defense lawyers ended in acquittal. On September 20, five of the lawyers - Luis Ramón Landaure, Magno Mariñas Abanto, Rodolfo Ascencios Martel, Carlos Gamero Quispe, and Ernesto Messa Delgado - were freed and walked out of the gates of the Miguel Castro Castro maximum security prison after being locked up for almost two years.

These lawyers remain unrepentant in the face of the fascist repression of the Fujimori regime. Upon their release, the five lawyers immediately issued a statement promising to continue to defend all who need their services.

Eight defense lawyers were originally arrested in 1997--all victims of frame-ups and sham trials. They were hit with blatantly political charges of "treason" and "terrorism" which carry heavy prison sentences. These lawyers have long records of defending people accused of "terrorism," poor people from the shantytowns, and others under attack by the government. For this "crime," these lawyers became targets of government persecution. As the lawyers themselves said: "The real reason for our detention ...

Black Prison and Jail Employees Win Discrimination Lawsuits


In October 2002, a federal jury awarded a former Fayette County Jail guard $196,000. James Young Sr., an African American, was fired from the jail in 1993 after complaining for over a year that black workers at the jail were not regarded as equal to whites and that ...

$150,000 Judgment Against Prison Officials Upheld

A federal district court in New York upheld a $150,000 jury verdict against prison officials, concluding that the award was not excessive. The court also held, in a separate ruling, that the Prison Litigation Reform Act, (PLRA), cap on attorney's fees does not apply to claims brought under ...

2003 Washington Legislative Round-up

In its 2003 session the Washington leg-islature enacted numerous laws affecting prisoners. Highlights of the most relevant laws are as follows:

Regional Jails

Substitute House Bill 1609 instructs the Sentencing Guidelines Commission to present a plan by Dec. 31, 2003, for creating "pilot regional correctional facilities," and establishing a "regional corrections authority."

The law does not make clear what benefits will be realized by creating these new prisons. Other than pre-trial detainees, SHB 1609 directs that the new facilities will only house prisoners serving sentences of 60 days to two years and "must accept inmates serving terms" of more than one year. Which could impact the DOC's population.

Sex Offender Website Expansion

Senate Bill 5410 amends RCW 4.24.550, relating to sex offender notification. This law, which previously only allowed Level III sex offenders to be posted on the state's web site, now allows Level II offenders as well. SB 5410 allows the same information to be posted about a Level II sex offender as is allowed for a Level III, "provided it is permissible under state and federal law."

The new law also now allows for state funds to pay for the web site where before ...

Post Conviction Update

by Walter M. Reaves, Jr.

This column will address recent decisions which have some impact on post-conviction procedure. The summary is by no means exhaustive, and contains only those decisions which may have some potential impact on defendants pursuing to post-conviction claims. For the most part, the decisions are from the federal courts. In some cases, exceptionally significant state court decisions will by summarized.

Limits on Pro se Representation

The Supreme Court recently decided an important case which will be of interest to most inmates. Most everyone has assumed that a defendant has the right to represent themselves on appeal, just as they do at trial. The right to pro se representation at trial was recognized in Faretta v. California 422 U.S. 806, 95 S.Ct. 2525 (1975) the failure to comply with a timely request before trial generally constitutes structural type error, which will warrant relief. Addressing the same issue in the context of a direct appeal, the Court in Martinez v. State, No. 98-7809, U.S. , 120 S.Ct. 684 (1/12/00), held a defendant does not have the right to represent themselves. Therefore, defendant's can be forced to proceed with appointed counsel.

Habeas Corpus ...

Washington DOC Personnel In-Fighting Results in $230,000 Settlement

An acrimonious inter-employee dis-pute among staff of Washington's Department of Corrections was settled in January, 2002 by the state paying three Washington State Penitentiary (WSP) employees $230,000 and gaining both their resignations as well as promises never again to work for Washington DOC.

When John Schildt sued Washington ...

Retaliation, Publication Ban and Lack of Dental Care States Claim

The court of appeals for the Eighth circuit held that a prisoner's complaint that he was retaliated against for using the prison grievance system, denied access to all publications and denied dental care, stated a claim. Missouri prisoner Percy Cooper filed suit claiming be was wrongly placed in administrative segregation (ad-seg). While in ad seg he was denied all written materials and treatment for a toothache. The district court dismissed the complaint for failure to state a claim upon which relief can be granted under 28 U.S.C. § 1915A(b)(1), holding that Cooper's amended complaint did not state how any of the 26 named defendants had personally violated his rights.

The court of appeals affirmed in part, reversed in part and remanded the case for further proceedings. The court held that Cooper's amended complaint, read in conjunction with the original complaint, did in fact state a claim against several of the defendants. Section 1915A dismissals are reviewed de novo on appeal and pro se plaintiff's complaints are to be liberally construed.

The court held that it is well established that the denial or delay of treatment for painful dental conditions states a claim for ...

Bad Water Causes Florida Prison Evacuation

More than 700 prisoners at Florida's maximum-security Martin Correctional Institution (MCI) had to be evacuated October 26, 1999 while state crews scrambled to make emergency repairs to a water plant plagued by breakdowns, sickening odors and contaminants. Workers set up portable toilets and trucked in water for about 500 prisoners left behind.

MCI operates its own water plant just outside the prison gate. The plant gets water from seven nearby wells. State Department of Environmental Protection (DEP) records show the wells have continually been clogged, out of service and unproductive. For years DEP employees have criticized MCI officials for ignoring prisoner complaints and failing to warn prisoners of potential health hazards. The DEP records show that prison officials:

Objected to having to tell prisoners about high lead and thallium levels in the water (as the law requires), claiming that doing so may cause prisoners to riot.
Argued that high lead levels threaten only children and pregnant women -- not adult male prisoners (apparently ignoring the fact that women and children frequently visit the prison).
For years failed to test its water as often as the DEP required and refused to complete a DEP survey of the prison's water system ...

Investigators Probe Ohio Paroles-For-Sale Scam

After receiving a tip from an unidentified informant in June of 1997, Ohio prison officials uncovered evidence of a parole-for-pay scam. While screening prisoner mail, officials read a letter from Grafton Correctional Institution prisoner Bubba Shumate addressed to Lynn Moore, a former Grafton prisoner who was paroled in 1997 and reimprisoned five months later on a parole violation.

"You said a year ago that this thing would cost me 5 grand," Shumate wrote Moore, who was then serving a two-year sentence at the Lorain Correctional Institution (directly across the road from Grafton). "A year later... it will cost me 5 grand more. What's up with that?

Prosecutors say Moore and his friend, Willie Ray Patton of Cleveland Heights, are at the center of an alleged parole-for-pay enterprise, which consists of at least eight Ohio prisoners or prisoner family members, believed to be responsible for bribing an unnamed state employee.

Prosecutors filed hundreds of pages of letters and documents in Lorian County Common Pleas Court that they will use to show that Moore, 44, and Patton, 51, would find out when Ohio prisoners were eligible for parole hearings and then solicit money to arrange for their releases.

The two were ...

Book Review: Inmate Litigation

by Assistant Professor Margo Schlanger, Reprinted (soft back)

from the Harvard Law Review, Vol. 116, No.6, April 2003; 151 pp.

Review by John E. Dannenberg

Inmate Litigation is a scholarly analysis on the effectiveness of prisoner civil rights litigation filed under 42 U.S.C. § 1983 both before and after the enactment of the Prison Litigation Reform Act (PLRA) in 1996. Assistant Professor Margo Schlanger of the Harvard Law School researched and interviewed literally thousands of sources - even PLN's own editor, Paul Wright - to gain her highly evolved knowledge of when and why prisoners sue as well as the details of the restraints on their ability to marshal legal actions at all-let alone successfully. Professor Schlanger's command of the legal principles of § 1983 litigation, her mastery of statistics and her lucid writing style combine to make this a useful guidebook to inform serious prison litigators - both pro per and bar attorneys _ on how and when prisoner suits might be a worthwhile endeavor. The study is also of interest to the plaintiff's bar in general because the PLRA is the second major piece of "tort reform" legislation enacted at the federal level in decades. Its effect ...

FDOC Hazardous to Prisoners' Health

by Mark Sherwood and Bob Posey

Thirty percent of the 129 doctors who provide medical care to prisoners incarcerated in the Florida Department of Corrections (FDOC) have marks on their records ranging from malpractice to fraud. The FDOC rarely fires or disciplines doctors it hires, even in cases where negligence causes prisoners to die.
Dozens of Florida prisoners have died since 1994 after receiving inadequate health care.
Recent state and federal legislation have made it almost impossible for prisoners to successfully sue the Department of Corrections when subjected to medical malpractice, even when it results in disfigurement or life-threatening complications. Even if legal action was successful, prison doctors are shielded from personal liability and taxpayers are required to cover any legal judgments against the doctors.
At least one in every nine Florida prisoners suffers from severe mental illness which prison guards are not trained or equipped to deal with.
The above are just a few of the findings of a special investigative report conducted by the St. Petersburg Times recently. In a three part series that made headlines 'in that Central Florida newspaper during the month of September, facts and statistics were revealed about the Florida prison system that had ...

Good and Bad News in Haverty Aftermath: No Good Time for Ad-Seg Placement

Good and Bad News in Haverty Aftermath:
No Good Time for Ad-Seg Placement

by Phillip Kassel

Last October, the Massachusetts Su-preme Judicial Court held that prisoners may not be maintained in harsh solitary confinement cells without the provision of procedural protections set forth in "constitutionally required" regulations that the Department of Correction ignored. See: Haverty v. Commissioner of Correction, 437 Mass. 737 (2002)[PLN, Aug., 2003].

In the aftermath of the decision, conditions for many prisoners at MCI-Cedar Junction, the maximum security prison in Walpole to which the SJC's decision pertains, have improved. Additionally, the DOC has largely rescinded its racist gang policy in the wake of the decision. On the negative side, the SJC dashed prisoners' hopes of obtaining tangible compensation for the denial of their due process rights. See: Haverty v. Commissioner of Correction, 440 Mass. 1 (2003).

In its earlier decision, the SJC remanded Haverty to the Superior Court for implementation. Judge King, who recently retired, ordered the DOC to give prisoners confined in the restrictive Cedar Junction East Wing due process hearings before April 30 or release them to general population. He also ordered the DOC to subtract 3.5 days for each month of ...

Prison Labor's Race to the Global Bottom

In the early 1990's, David Horwitz owned Kwalu, a Capetown, South Africa based company which manufactured generic tables and chairs for fast food chains, hotels, and hospitals. Furniture construction is a labor-intensive business, and though Kwalu's labor costs in Capetown were low, Horwitz thought he could make them lower still. So in 1992 he relocated the entire operation to the town of Ridgeland, South Carolina, to take advantage of one of the cheapest labor sources imaginable: the prisoners of the Ridgeland Correctional Institution. Kwalu now lists its address as a post office box in Ridgeland.

It has become clear that there are companies who find it more efficient to employ American prisoners than workers from traditional reservoirs of cheap Third World labor. Depending on who you're talking to, this is either a win-win for all concerned, or clear evidence that capitalism's relentless "race to the bottom" doesn't end with child sweatshops in Malaysia. The idea of using prison labor as an alternative to sending manufacturing jobs overseas has gained ground in recent years, and is prominent among the arguments made by supporters of the prison labor system.

Ken Mellem is one of these supporters. In ...

Palestinians Still Imprisoned Despite Peace Process

by Iñaki Markiegi

Today Palestinians remain foreigners in their own land. Faced with the apathy of the international community, the nearly two and half million Palestinians living in the Gaza Strip and in the West Bank, the million in the Israeli State and the more than three million Palestinians in the diaspora continue to demand their right to freely choose their own destiny.

If there is a point essential to the understanding of this in a permanent climate of seemingly fruitless negotiations, of "negotiations of renegotiations," it is the dramatic situation of the Palestinian political prisoners; they have become - as have political prisoners in so many other conflicts throughout the world - those most vulnerable, subject to all manner of pressures. The Israeli authorities have used the ploy of exchanging the freedom of prisoners in return for political profits: "prisoners in exchange for the abandonment of demands for sovereignty." It is, needless to say, a measure that generates severe tensions in the Palestinian community.

In February of 1991 the Israelis held 15,000 Palestinian citizens in thirteen prison centers. The most important of these, Ansar III, in the middle of the desert, is infamous for the harsh conditions and treatment given ...

Transfer Moots Wiccan's Claim

The court of appeals for the Eighth circuit held that a prisoner's transfer to a different prison mooted his religious rights lawsuit. Duane Smith is an Iowa state prisoner of the Wiccan faith. He filed suit seeking declaratory and injunctive relief to the effect that officials at the Iowa State Penitentiary (ISP) had violated his First amendment rights by denying him various items necessary for the practice of his religion.

The case went to trial and the district court granted declaratory relief in Smith's favor, ruling that Smith's religious rights had indeed been violated by prison officials. The court denied injunctive relief because, in the meantime, Smith had been transferred to the Anamosa State Penitentiary (ASP). The lower court held that Smith's claim for declaratory relief was not moot because it was "capable of repetition yet evading review" in that, given Smith's disciplinary record and his remaining sentence of 20 years, it was likely he would be returned to ISP.

The court of appeals vacated and remanded. The appeals court did not reach the merits of Smith's First amendment claim. Instead, the court ruled that Smith's transfer from ISP mooted his claim for ...

Texas Death Row Hunger Strike

Scores of death row prisoners in Texas kicked off the new millennium with a planned 21-day hunger strike over intolerable conditions of confinement. As many as 100 death row prisoners as well as hundreds of other ad-seg prisoners participated in the hunger strike, according to reports by Gloria Rubac published in Workers World.

Texas prison officials deny that a large scale hunger strike took place. The Dallas Morning News reported that prison officials would admit to only 48 death row prisoners refusing some, but not all, meals.

"If they don't eat, that's their own thing," Texas prison official (media flack) Larry Fitzgerald told the Morning News. "We offer the food to them. They can refuse it."

But according to Workers World, over 100 death row prisoners at the Terrell Unit participated as well as more than 500 ad-seg prisoners at the Darington, Michael, McConnell, Robertson, Allred, Beto I, and Estelle units. The prisoners called the action a "non-disruptive show of unity with the goal of gaining attention to the conditions here by the public, the news media, the prison administration, thereby hopefully making a change for the better in our overall treatment," reported Workers World.

The protest appears ...

Comatose Prisoners Expose the Limits of Mercy

In Texas and California the hard line against crime has crashed against the bottom line of deficient state budgets. Short money and long sentences have politicians from both states purporting to search frantically for fiscal solutions.

Texas legislators have proposed a variety of bills that would potentially release prisoners. One bill suggests the release of non-violent illegal immigrants who are approved for parole and earmarked for deportation. Another bill would shorten the length of treatment programs prior to release. But attracting the most attention is the possibility of ridding their prisons of severely infirm and handicapped prisoners.

Texas House Corrections Committee Chairman Ray Allen, R-Grand Prairie says, "For all intents and purposes, we are at capacity. We're looking at ways to, in the short term, meet our capacity needs without having any kind of dramatic negative impact on the system or without increasing any threat to the public." He goes on to point out that Texas prisons are currently caging nearly a dozen prisoners who are "in a persistent vegitative state." The annual cost for housing these prisoners is roughly $400,000.

Alluding to the fact that Texas has nursing home facilities designed exclusively for paroled prisoners, Allen says ...

California to Outfit All Prison Guards With Stab-Resistant Body Armor

California has ordered $2.3 million in stab-resistant body armor from DBH Industries' subsidiary Protective Apparel Corp. of America (PACA)enough to give body armor to all California prison guards. The order is the largest ever received from the prison industry by body armor specialists DBH.

Meanwhile, DBH subsidiary Point Blank Body Armor Co. has settled a dispute with the New York Police Department by agreeing to replace 1,000 bullet-resistant vests with higher-grade military vests and allow NYPD to purchase an additional 5,300 military vests at a reduced price. The dispute started when a NYPD officer noticed weakening of his vest at the folds. Tests then showed penetration of some of the vests by .357 Magnum rounds. Initially, 1,000 vests were believed defective. Later figures were as high as 5,000 defective vests. Former Point Blank employees have also alleged that they were ordered to place updated labels on out-of-date body armor, vest sizes were mislabeled, and vest shells were mismatched with their ballistic liners. Each of these defects could compromise its effectiveness.

Sources: DBH Industries news release; Law Enforcement News

International Perspectives on the Death Penalty

Review by Julia Lutsky

The United States is finding itself increasingly isolated by its intransigence with respect to the death penalty. At a time when the rest of the world is moving toward eradication of this barbaric practice, the United States almost alone of all nations is moving to increase its application. According to the report, International Perspectives on the Death Penalty: A Costly Isolation for the U.S. issued by the Death Penalty Information Center (DPIC) in October of last year, "during the recent visit Mary Robinson, the UN [Human Rights] High Commissioner, even China, "the world's foremost executioner for years, committed itself to monitor human rights within its own borders and reported a sharp drop in ... executions."

Western Europe has abolished the death penalty entirely, the 40 nation Council of Europe has called for its banning, the UN Commission on Human Rights voted a moratorium on it last year, and Pope John, when he visited the United States last year, "was unequivocal, 'I renew the appeal I made [previously] for a consensus to end the death penalty, which is both cruel and unnecessary." The number of confirmed judicial executions carried out throughout the world dropped from ...

Nevada Religious Group Gets Federal Money to Help Prisoners, Delivers Nothing

Nevada Religious Group Gets Federal Money
to Help Prisoners, Delivers Nothing

by Matthew T. Clarke

Alliance Collegiums Association of Southern Nevada (ACASN), a faith-based organization led by black ministers with the stated mission of providing prisoners with support services after parole, received a federal grant for $423,000 in October 2002. However, ACASN, which is headed by the Ministers Alliance Association of Southern Nevada (MAASN), has yet to deliver any services to prisoners. Not surprisingly, ACASN receives no mention among the faith-based initiatives praised by President Bush.

ACASN is supposed to be patterned after the Ridge House, a successful Northern Nevada program which also operates three small facilities in Southern Nevada. Ridge House and ACASN split a $900,000 federal grant set up by Sen. Harry Reid, D-Nev. The Rev. Willie Davis of the Second Baptist Church of Las Vegas heads MAASN.

Several of ACASN's board members have resigned citing a variety of irregularities. When asked about the irregularities, Reid threw the responsibility onto the U.S. Department of Justice (DOJ).

"The Department of Justice is responsible for auditing this grant, and if there is any irregularity in the financial dealing of this program, the people who acted wrongly ...

Claim For Prospective Relief Moot Upon Release

The court of appeals for the Tenth circuit held that when a prisoner's claim for perspective injunctive relief regarding conditions of confinement becomes moot, the prisoner's parole or supervised release status does not, absent some exceptional showing, bring that claim under the narrow "capable of repetition, yet evading review" exception to the mootness doctrine.

This otherwise frivolous conditions of confinement case revolves around the mootness doctrine. A federal prisoner had brought an action under the First Amendment and Religious Freedom Restoration Act. The lower court granted summary judgement in favor of prison officials. The prisoner appealed but was subsequently released on supervised release.

The appeals court determined that before reaching the merits of the case the jurisdictional question of mootness must be considered. It found that a claim brought by a prisoner "seeking prospective mandamus relief related solely to conditions of confinement becomes mooted" by that prisoner's subsequent release on parole or supervised release.

In a ,previous decision, McKinney v. Maynard, 952 F.2d 350 (10th Cir. 1991), the Tenth circuit had held that a prisoner's claims for injunctive relief "to allow him to engage in certain religious practices while in prison" was not mooted by ...

Grievance Procedure Not Required by PLRA in All Lawsuits

The Ninth Circuit court of appeals has held that California state prisoners who seek only monetary damages in federal civil rights suits need not file a prison grievance before filing suit.

MacArthur Rumbles, a California state prisoner, filed a civil rights suit against prison guards seeking monetary damages. The guards filed a motion to dismiss the suit because Rumbles failed to file a prison grievance prior to bringing suit, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). The district court denied the motion and the guards appealed.

The Ninth Circuit asked Michelle Anderson and Courtenay Keough McKeon, law students under the supervision of attorney Susan Christian, Director of the King Hall Civil Rights Clinic of the University of California at Davis, to prepare a brief for Rumbles.

The Ninth Circuit held that the PLRA administrative remedy exhaustion requirement is not jurisdictional. Adopting the Fifth Circuit's holding in Underwod v. Wilson, 151 F.3d 292 (5th Cir. 1998), the court held that 42 U.S.C. § 1997e(a) does not have the "'sweeping and direct' statutory language that goes beyond a requirement that only exhausted actions be brought." Additionally, 42 U.S.C ...

Wrongfully Convicted in California and New York Awarded Damages


On April 29, 2003, then California Governor Gray Davis signed legislation awarding two wrongfully convicted prisoners $100 per day for every day they were in prison. Ricky Daye, who spent 10 years in Folsom Prison, and Leonard McSherry, who served nearly 13 years, will receive $389,000 and $481,000, respectively.

Daye, 45, was convicted in 1984 for the rape of a San Diego woman. He was exonerated by DNA testing in 1994. Under California law at the time, Daye could have received $10,000 for his time behind bars, but he chose instead to sue San Diego authorities in federal court. "$10,000 for 10 years is trivial," said his attorney, Dwight Ritter. Daye's federal lawsuit failed, however. A federal judge refused to allow him to present evidence of his 10 years in prison to the jury. Instead, they heard only that he had spent two days in county jail. No damages were awarded.

After legislation was enacted in 2000 to provide $100 a day for those wrongfully imprisoned, Daye was allowed to make a claim against the state. Still, nearly two more years passed before Daye's award was approved.

Ritter said that it was good ...

City Liable for Jail Sex Shows and Nude Dancing

PLN has extensively reported on the prevalence of sexual assault and sexual harassment of women prisoners in District of Columbia prisons and jails. In "Our Sisters Keepers," by Daniel Burton Rose, [PLN, Feb. 1999] we reported on women prisoners in the District of Columbia (D.C.) jail being forced to participate in strip shows and "exotic dancing" for the gratification of guards. Several women prisoners filed suit over their forced participation in these activities. In a directed verdict under Fed.R.Civ.P. 50, the district court ruled that as a matter of law, the D.C. was liable for failing to supervise the improper sexual activities of its employees.

The directed verdict was granted after a trial. At trial the court found that the undisputed facts were that prisoners Jacqueline Newby, Bonita Pryor and Shawnez Williams, and others, were forced by jail guards to engage in strip shows and exotic dancing in the D.C. jail while nude or wearing only G strings on at least three occasions in July, 1995. The dancing took place before numerous guards and 80 to 100 prisoners.

Pryor claimed she was beaten by guards for refusing to participate in the strip shows. While ...

Heck Does Not Bar Evidence in Shooting Case

The U.S. district court for the East ern District of California held that a prisoner was not precluded from introducing evidence contradicting factual findings of disciplinary proceeding instituted against prisoner as a result of incident.

Vincent Marquez, a California state prisoner, brought a 42 U.S.C. § 1983 civil action against R.J. Gutierrez, a California Department of Corrections prison guard. "It is undisputed that during a prison-yard melee at California State Prison-Sacramento" Gutierrez shot Marquez in the leg with a rifle. The bullet wound caused considerable tissue and bone damage. In his suit, Marquez asserted that Gutierrez employed excessive force when he shot him, "thereby subjecting him to cruel and unusual punishment in violation of the Eighth Amendment ...."

Marquez indicated in pretrial declarations that he intended to "introduce evidence that he was an innocent bystander during the scuffle, or that, to the extent he was physically engaged, it was in self-defense." Marquez maintained that "the firing of lethal ammunition at an unarmed prisoner was unjustified, even if he was culpable of battery prior to the shooting."

In preparation for trial, Gutierrez "filed a motion in limine seeking an order prohibiting Marquez from introducing evidence which would contradict the ...

New Mexico Supreme Court Rules in Disciplinary Hearing Remedies

As an issue of first impression, the New Mexico Supreme Court recently held that restoration of lost good-time credits and an order prohibiting another hearing were the proper remedies for a prison disciplinary infraction that violated a prisoner's right to due process of law. The Court noted, however, that its order barring another hearing was limited to the exceptional circumstances of the case before it.

On February 14, 1999, prison guards observed Gilbert Lopez and another prisoner fighting over a broom. Lopez was infracted for assault with a weapon and fighting. At a disciplinary hearing conducted on February 22, 1999, the hearing officer refused to permit Lopez to call two prisoner witnesses in his defense, and instead found him guilty based on the written report of the infracting guard. All but 30 days of Lopez' goodtime credits were revoked as a result of the guilty finding.

On May 6, 1999, Lopez filed a petition for writ of habeas corpus in the Santa Fe District Court, alleging that he was denied the opportunity to call witnesses at his infraction hearing in violation of prison policy and his right to due process. After appointing counsel for Lopez and conducting an evidentiary ...

$115,000 Settlement in Seattle Jail Strip-Search Suit

by John E. Dannenberg

King County and the City of Seattle settled a wrongful strip-search suit for $115,000 on May 21, 2003 and also agreed to change strip-search policies at King County jails.

Jasmine Wells and Brian Walton, college students in Anchorage, Alaska, had come to Seattle on November ...

Absent Plain Error, Objection Necessary to Preserve Issues

The appeals court for the Seventh circuit held that if a pretrial ruling is definitive, objection at trial is not necessary to preserve the issue for appellate review. The court also held that objection to a guard's counsel's references to pretrial detainee as "cop killer" was forfeited, such references did not result in plain error, and the trial judge should not have denied detainee's pretrial motion outright, but the judge's error was harmless.

Jackie Wilson, a pretrial detainee, alleged in a 42 U.S.C. § 1983 suit "that James Williams, a guard at the Cook County Jail, attacked him without provocation and inflicted serious injuries." Williams contended "that Wilson was the aggressor and that the force used in defense was reasonable under the circumstances. Twice in the district court, summary judgement was granted to Williams-once by the judge and once by a jury. Both times the verdict for Williams was reversed on appeal. A second jury trial also ended in a verdict for Williams. The appeals court affirmed and rehearing en banc was granted.

"Before the second trial of his civil suit began, Jackie Wilson asked the district judge to prevent Williams from informing the jury ...

Magistrate Judge Recuses Self in BOP Medical Treatment Case

Magistrate Judge Recuses Self in BOP
Medical Treatment Case

A Magistrate Judge for the District of Columbia has recused himself on the federal government's motion from a case involving the Bureau of Prisons (BOP) and its medical care of a pre-operative transsexual prisoner.

Barbie Black, a BOP prisoner, is a pre-operative male to female transsexual seeking estrogen therapy. Black sued BOP Medical Director Dr. Newton E. Kendig to force BOP to provide her with treatment. The case was referred to Magistrate Judge Facciola for settlement. After about 18 months of negotiation, both parties reached a settlement agreement in July 2001.

In May 2002, Black moved to reinstate the case, expedite discovery, file a second amended complaint, and for a preliminary injunction and a temporary restraining order. The BOP moved for Judge Facciola's recusal under 28 U.S.C. § 455(a) and (b). Both parties, the court noted, were bitterly divided over paragraph 5 of the settlement agreement, which mandated that BOP evaluate Black for treatment. Black interpreted the paragraph to mean that BOP must provide some treatment after evaluation. BOP read the paragraph as requiring evaluation for treatment, but not treatment itself.

The BOP questioned whether Judge Facciola ...

Denial of Medication Precludes Summary Judgment

The U.S. district court for the southern district of Ohio held that a genuine issue of material fact precluded summary judgement against an arrestee who was denied needed AIDS medication during his eight-day jail incarceration.

Devin Karl Murphy brought a 42 U.S.C. § 1983 action against defendants Deborah L. Bray, R.N.; Dr. Jean-Claude Loiseau, Correctional Medical Systems, Inc.; Hamilton County Sheriff Simon L. Leis, Jr., in his official capacity; and several other personnel at the Hamilton County Justice Center.

At the time of his arrest, Murphy was taking prophylactics for thrush, meningitis, herpes, medicine for depression, and a drug cocktail to inhibit the growth of the AIDS virus. Murphy did not receive his medications during his entire incarceration of eight days, even though he told jail personnel of his need for them when he was processed into the jail. And despite the delivery of the medications from Murphy's home two days later under Dr. Loiseau's orders and the complete medical profile provided by Murphy's home health care nurse, he was still denied the needed medications.

In response to Sheriff Leis's Motion for Summary Judgement, the court stated that under §1983, Murphy must prove ...

Dismissal Reversed for Determination Whether Prisoner Was Misled About Remedies

Dismissal Reversed for Determination Whether
Prisoner Was Misled About Remedies

The U.S. Third Circuit Court of Appeals reversed a Pennsylvania federal district court's dismissal of a state prisoner's suit. The court ruled that there was a substantial, disputed question whether the prisoner failed to exhaust administrative remedies or had been misled by prison officials about the necessity and timing and filing of a grievance.

Samuel Brown, a Pennsylvania prisoner at SCI-Houtzdale was assaulted and injured by a group of prisoners in the workers' bathroom of the prison cafeteria. Brown alleged that he was assaulted because he was using the bathroom when the prisoners wanted to sneak in to smoke and, further, that he would not have been assaulted had prison officials enforced their 1996 "no smoking" policy. Brown also asserted that he was denied adequate medical treatment in retaliation for filing a grievance.

The U.S. District Court, Western Division of Pennsylvania, dismissed the claims. The District Court held that Brown failed to exhaust his administrative remedies under the Pennsylvania Department of Corrections (PADOC) Consolidated Grievance System (DC-ADM 804). Brown appealed.

The Court of Appeals noted that the Prison Litigation Reform Act (PLRA), 42 U.S.C ...

Grievances Exhausted When Prison Officials Fail to Respond

The Seventh Circuit Court of Appeals held that when prison officials fail to respond to administrative remedies, those remedies are rendered "unavailable" and deemed exhausted under the Prison Litigation Reform Act (PLRA). The court also held that prison officials were not estopped from raising an exhaustion defense.

In October 1997, Illinois prisoner Peter Lewis complained to guards that his "cellmate, Joseph Carlos, was aggressive and threatening and that he was afraid to stay in his cell with him." The next day a Lieutenant advised Lewis that he would speak with Carlos. Afterwards, however, "Carlos displayed a `furious anger' toward" Lewis. "The following night Lewis called for [guards] because Carlos began acting `crazy' by jumping up and down in the middle of the floor, screaming and hitting the walls." Guards did not respond to the calls for help. The next day, Lewis reported Carlos' behavior and "requested to be moved to another cell, including a segregation cell for his own safety." His request was denied.

"A few days later . . . Lewis awoke in the morning to the sound of Carlos speaking" to a guard who had "escorted Carlos to his cell to retrieve his personal property because he was being placed in ...

News in Brief

CA: Dept. of Corrections sergeant Richard Selio murdered his estranged wife on Sept. 26, 1999, then shot and killed himself after a SWAT team stormed his house following an eight hour standoff. Selio was a transport officer at the California Institute for Men. His wife, Teresa, also was a CDC employee.

Canada: Prison director Ole Ingstrup criticized the Toronto Sun in an internal memo for what he called "negative and distorted" news reports concerning the Correctional Services department. The paper obtained a copy of the memo in Jan. 2000. News stories have focused on lavish spending by Ingstrup and other prison officials. Ingstrup defended his involvement in an international corrections conference that resulted in a $70,000 travel bill.

CT: Prison recreation supervisor Larry J. Moore, 45, was arrested Oct. 12, 1999 and charged with stealing $8,100 he had collected to pay expenses for a correctional conference. Moore, employed at Carl Robinson Corr. Institution in Enfield, allegedly misused funds designated for the National Correctional Recreation Association conference held in March 1999. He was placed on paid administrative leave.

DE: Adams Catalogue is a company marketing hygiene and grooming supplies to prisons and jails. All their products, shampoo, soap, toothpaste ...

Summary Judgment Reversed on Fact Issues of Guards' Failure to Protect Prisoner

The Seventh Circuit court of appeals has reversed summary judgment where issues of material fact remain concerning guards' deliberate indifference to a prisoner's safety in a failure to protect case.

Bryan Case, an Illinois state prisoner, small statured and classified as a "vulnerable victim," was released from segregation to the labor pool where he could move about and work unhandcuffed., Another prisoner, identified only as "Jones," had threatened numerous times to beat and rape Case once Case was released from his cell. The two had at least one prior encounter where Case fought off Jones with a pool cue. Jones was well-known by his record which included "two convictions for armed violence, four for deviate sexual assault (homosexual)," plus convictions for taking a prisoner hostage and six times assaulting other prisoners.

Three days after Case was released from segregation, and despite repeated written warnings to guards of Jones' threats, Case was attacked by Jones with a broom head just outside the door to Jones' work area. Case's injuries included permanent hearing loss.

Case alleges guards failed to protect him and even conspired to let the assault happen because of Case's frequent disciplinary problems and his agreement to ...

522 Days in BOP Ad Seg States Due Process Claim

A federal district court in New York denied prison officials' motion for summary judgment, holding that defendants failed to establish as a matter of law that 28 C.F.R § 541.22 - the Bureau of Prisons (BOP) administrative segregation (ad seg) rule - does not create a protected liberty interest in remaining free from ad seg. The court found that summary judgment was inappropriate because the factual record was undeveloped and several material facts remained in dispute.

Federal prisoner Rene Tellier brought a pro se Bivens action alleging that deviations from § 541.22 during the 522 days he was confined in ad seg violated his right to due process under the Fifth Amendment. Defendants moved to dismiss, arguing that Tellier received all the procedural protections he was entitled to under § 541.22 and that any alleged failure to comply with the regulation did not violate any of Tellier's constitutional rights. Because the parties relied on matters outside the pleadings, the court treated the motion as one for summary judgment.

Defendants cited several decisions outside the Second Circuit for the proposition that § 541.22 does not create a constitutionally protected interest, including Crowder v. True, 74 F.3d 812 (7th Cir ...

Jury Awards $700,000 to Chicago Jail Worker for Sexual Harassment

On July 2, 2003, a federal jury in Chicago, Illinois, awarded $700,000 in damages to a female employee of the Chicago jail in Illinois who was sexually harassed and assaulted by a male co-worker. Kathleen Kessel, 35, and Beverly Meador, 44, were employed by the Cook County sheriff's ...

California Parole Rescission Panel's Disagreement With Granting Panel Fails The "Some Evidence" Standard

California Parole Rescission Panel's Disagreement With Granting Panel Fails The "Some Evidence" Standard

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals held that a California life prisoner's rescission of his unexecuted grant of parole by a rescission panel's finding of "improvident grant" of parole failed the "some evidence" due process standard, and remanded to the district court with direction to grant the writ. The court found that Californias parole statute created a protected liberty interest in parole, and that due process considerations would not permit a later panel's rescission of a previous grant of parole solely because the rescission panel's opinion of the same evidence differed from that of the earlier granting panel. The court, in a second opinion, upheld the order granting habeas.

Carl McQuillion was convicted in 1973 of two counts of murder during the course of an armed robbery of a sporting goods store, with a prior history of an escape and three armed robberies resulting in two prior prison terms. He was sentenced to 7 years-to-life.

In 1979, the parole board (Board of Prison Terms (BPT)) found him suitable for parole and fixed his term at 28 ...

Transsexual Prisoners Have Privacy Right

The U.S. court of appeals for the Second Circuit held that transsexual and HIV+ prisoners have a privacy right to confidentiality of their prison medical records and physical conditions. However, because this principle was not clearly established law, the defendants were entitled to qualified immunity on this, but not on the prisoner's Eighth Amendment claim.

In 1974, Dana Kimberly Devilla began a series of operations to change his sex from male to female. Seventeen years later, while in the custody of the New York State Department of Corrections (DOCS), Devilla tested positive for the HIV virus.

Later that year, while Devilla was confined to the Albion Correctional Facility (ACF), guard Jeffrey Lynch announced to several ACF prisoners and staff that Devilla had her sex changed and was HIV positive. As a result, Devilla claims that she was the target of harassment by guards and prisoners.

In a civil rights action, Devilla sued Lynch, another guard named Crowley, who was present when Lynch made the announcement, ACF superintendent Sunny Schriver, and DOCS commissioner Thomas Coughlin. She alleged the defendants violated her rights to privacy, life, liberty, due process, equal protection, and to be free from cruel and unusual punishment ...

Exceeding Doctor's Work Limit Order Actionable Under Eighth Amendment

Exceeding Doctor's Work Limit Order Actionable
Under Eighth Amendment

by John E. Dannenberg

The Fifth Circuit U.S. Court of Appeals held that prison officials' forcing of a prisoner to work in excess of a four hour doctor-established daily limit, resulting in dangerous blood pressure elevation, was sufficient to state an Eighth Amendment civil rights claim. It also overruled the district court's grant of the officials' factually deficient summary judgment motion, which that court had obligingly construed instead as a Fed. Rule Civ.Proc. 12(b)(6) dismissal motion.

Texas state prisoner Edward Calhoun suffered from hypertension, asthma, epileptic seizures, and glaucoma - as well as knee and head injuries sustained in a fall. Because of his medical limitations, he was restricted by doctor's orders to no more than a four-hour per day work schedule that also restrained walking, standing and lifting. He alleged that he was abused by Security Captain Clyde Hargrove and Lieutenant Mark Atkins, whom Calhoun claimed maintained a pattern of harassment against him. For example, Hargrove repeatedly spit sunflower seeds on the floor and then ordered Calhoun to pick them up. Hargrove and Atkins allegedly forced Calhoun to work 10-14 hour days doing strenuous ...

BOP Electric Musical Instrument Ban Upheld by DC Circuit

BOP Electric Musical Instrument Ban
Upheld by DC Circuit

by John E. Dannenberg

The US Court of Appeals for the DC Circuit upheld the BOP ban on electric musical instruments in federal prisons, rejecting prisoner arguments that the ban violated the Administrative Procedures Act (APA) as well as their First Amendment rights to freedom of musical expression.

Federal prisoners Brett Kimberlin and Darrell Rice sued the U.S. Department of Justice and the Bureau of Prisons (BOP) to enjoin their ban on electric (but not acoustic) instruments as prisoner property. The BOP ban derived from a 1997 budget act rider (Zimmer Amendment) intended to prohibit the use of appropriated funds to provide for "amenities or personal comforts in the federal prison system," including the "use or possession [thereof]" - excepting use only for approved prison religious activities. Kimberlin's and Rice's suit below claimed the ban on such instruments interfered with their First Amendment right to creative musical expression and that it was promulgated in violation of the APA. They further alleged that the BOP's announced exception for such instruments for approved prison religious activities violated their equal protection rights. Although summary judgment was granted them on the equal ...

New York Prisoner's Assault Claim Headed for Trial

New York's Court of Appeals, its highest court, has held prisoner Francisco Sanchez's state tort lawsuit alleging negligent supervision against the state of New York raises an issue of whether an assault on Sanchez was foreseeable. The Court of Claims granted the State's motion for summary judgment on grounds the attack was unforeseeable as a matter of law. The Appellate Division affirmed.

The essential facts are undisputed. Sanchez and a civilian teach night classes on Latino culture at the Elmira Correctional Facility (ECF). Sanchez is required to clean up his classroom and stand outside the doorway awaiting inspection and release by the duty guard. The school's corridors, which are 60 feet long, were occupied by 101 prisoners. Without warning, Sanchez was punched and slashed across his face from behind with a razor-like instrument, causing a wound that required 40 stitches. At the time of the attack, which lasted less than 20 seconds, the guard was at the storage room on the opposite end of the corridor; he was supervising prisoners returning television sets and equipment. Within a minute of the attack, the guard came to Sanchez's aid. Sanchez testified he was completely surprised by the ...

Guard Proclaiming Open Season On Prisoner Actionable

The court of appeals for the Second circuit held that a prisoner, who alleged a guard told the other prisoners that it was "open season" on the prisoner, stated a claim under § 1983 for violation of the prisoner's Eighth Amendment right to be free from cruel and unusual punishment, and his Fourteenth Amendment right to equal protection under the law.

On June 30, 1997, while returning to his cell, escorted by Attica prison guard D. Dylag; Raymond W. Snider, a prisoner at Attica Correctional Facility, "was assaulted by two or three other prisoners." Snider alleged "that he was assaulted by these inmates because Dylag announced (apparently at a prior time) to these and other inmates that it was 'open season' on Snider. Snider was punched repeatedly in the head and face, and he received two black eyes."

Snider filed suit seeking, among other things, $150,000 in punitive damages against Dylag. The district court dismissed the suit under 28 U.S.C. § 1915(e), stating that "Snider did not allege facts to indicate that Dylag was personnaly involved in the actions to which Snider complained." Snider appealed.

Snider argued "that the district court erred in determining that an allegation ...

Wyoming Prisoners Win Summary Judgment for Increased Security

by John E. Dannenberg

The class of all Wyoming state pris-oners won injunctive relief forcing prison officials to protect them from unprovoked assault, bodily injury and death at the hands of other prisoners, now, and in the future. Granting summary judgment to the plaintiff class, the US District Court (D. Wyo.) ordered prison officials to submit a Remedial Plan to this end within 21 days.

Brad Skinner, incarcerated at the Wyoming State Penitentiary (WSP) in Rawlins, Wyoming, was brutally beaten by three other prisoners entering his open cell. Hospitalized five weeks for separated vertebrae, a concussion, contusions, swelling and a broken nose, Skinner continues to suffer back pain, migraine headaches, blurred vision and psychological pain and suffering from his assault.

Skinner was approached by other prisoners immediately upon his arrival at B-Star, Block 4 - a "closed custody" housing unit, telling him he wasn't wanted and would be assaulted if he stayed there. Skinner immediately advised guards, breaking down with fear, and pleading to be moved to another tier. Defendant guard James Hewitt allegedly yelled at Skinner, berated him and forced him to sign a statement that he felt safe returning to his cell. Defendant guard David Ebell also heard ...

Illinois Governor Announces Death Penalty Moratorium

Citing a "shameful record of convicting innocent people and putting them on death row", Illinois governor George Ryan announced a halt to state executions. The January 31 announcement marked the first such moratorium in the U.S.

The Nebraska Legislature passed a moratorium on executions in 1999, citing concerns about racial disparity in sentencing, but the governor vetoed it.

Since capital punishment was reinstated in Illinois in 1977, 12 death row prisoners have been executed while 13 have been exonerated after their cases were reopened.

Governor Ryan cited a series of articles published by The Chicago Tribune that examined nearly 300 cases in Illinois courts in which the death sentence had been imposed. Of some 260 cases that have been appealed, fully half have been reversed for a new trial or sentencing hearing.

The Tribune found that in more than 30 cases, death row prisoners were represented by lawyers who were disbarred or suspended from practice. In more than 40 cases, testimony from (notoriously unreliable) jailhouse informants was used to convict or condemn the defendant. In numerous other cases, recanted testimony by prosecution witnesses, improper rulings by the judge, or misconduct by the prosecutors resulted in convictions that had to ...

Dismissal Without Notice for Untimely Service of § 1983 Complaint Is Abuse of Discretion

Dismissal Without Notice for Untimely Service
of § 1983 Complaint Is Abuse of Discretion

When the United States District Court (SD NY) dismissed a prisoner's 42 U.S.C. § 1983 complaint for his failure to serve it within 120 days, the Second Circuit Court of Appeals reversed because the district court did not first notify the prisoner of its intentions, as required by Fed.Rules Civ.Proc. Rule 4(m).

New York state prisoner John Thompson, acting in pro per and in forma pauperis, sued guard Victor Maldonado for excessive use of force and subsequent failure to attend his medical needs. The court sent Thompson a US Marshals Service Form 285 for Thompson to complete and mail to the Marshal for service. Thompson never received the form and hence never served the complaint on Maldonado. The court dismissed the complaint after 120 days for failure to timely serve. Thompson complained on appeal that Rule 4(m) required the court to first notice him of pending dismissal - to permit him to show good cause for his failure - before taking the severe sanction of dismissal.

In fact, Thompson had good cause. He alleged that his legal mail from the court had been ...

Federal Tort Claims Act Suit Limitation Construed in Medical Suit

Affirming the U.S. District Court for the Central District of Illinois, the U.S. Seventh Circuit Court of Appeals held that the United States was entitled to summary judgment under the Federal Tort Claims Act (FTCA) in a prisoner's medical malpractice claim.

Michael Massey, a prisoner formerly at the Federal Correctional Institution in Pekin, Illinois (FCI-Pekin), developed a freely reducible umbilical hernia in 1995 while in jail. Beginning in July 1996, after arriving at FCI-Pekin, Massey complained repeatedly about increasing abdominal pain and, later, of difficult bowel movements caused by the hernia. An FCI-Pekin doctor scheduled surgery but was overruled by the health services administrator.

Massey filed complaints with prison officials, but received no relief. Massey's attorney wrote two letters to the FCI-Pekin warden stating that the prison's response to Massey's medical need was unsatisfactory. The first letter was written in July 1996; the second in January 1997.

Massey was finally examined by a surgical consultant in December 1997 and operated on in January 1998. After uncomplicated surgery, the surgeon ordered Massey not to engage in heavy lifting and prescribed Vicodin for pain. Officials at FCI-Pekin substituted Tylenol 3 with codeine for Vicodin. Further, Massey ...

Circumstantial Evidence Sufficient to Defeat Summary Judgment

The Second Circuit Court of Appeals held circumstantial evidence in a retaliation claim is sufficient to defeat summary judgment in prison officials' favor. While confined at New York's Bare Hill Correctional Facility, prisoner Gregory Gayle filed a grievance stating he heard prison staff praising the guard who had used a "van as a deadly weapon" to run over a prisoner while comparing "the incident as a video game where Blacks and Hispanics are the targets."

Gayle's 42 U.S.C. § 1983 suit alleged he was infracted for urging others to participate in conduct detrimental to the prison and given 90 days solitary confinement. The district court granted prison officials' motion for summary judgment. In reversing, the Second Circuit held Gayle had elicited circumstantial evidence that is sufficient, in this case, to raise a genuine issue of material facts as to whether retaliation was a substantial factor in the decision to charge and punish him.

The Court found the charges arose from statements made as the result of an interview on the grievance's merits. Moreover, additional support was gained from an administrative reversal of the charge. Furthermore, there is no actual proof of incidents Gayle caused to arise ...

Ninth Circuit Holds Exhaustion of Remedies Mandatory Before Filing Suit

The U.S. Ninth Circuit Court of Ap-peals joined eight other U.S. Courts of Appeals in holding that the Prison Litigation Reform Act (PLRA) mandates, under 42 U.S.C. § 1997e(a), that administrative remedies must be exhausted prior to a prisoner filing suit about prison conditions under any federal law.

Gregory McKinney, a California prisoner, filed two prison conditions suits in different California U.S. District Courts against various defendants. In each suit, the district courts dismissed without prejudice for failure to exhaust administrative remedies prior to filing suit, as required by 42 U.S.C. § 1997e(a). McKinney appealed each dismissal, arguing that he was in the process of exhausting remedies and that the district courts should have stayed proceedings to permit exhaustion of remedies.

The appeals court consolidated the appeals since they presented a common question.

The Ninth Circuit noted that the First, Second, Third, Sixth, Seventh, Tenth, Eleventh, and D.C. Circuit Courts of Appeal, when presented with precisely the same question, held that a stay to allow exhaustion of remedies was inappropriate under § 1997e(a). The Ninth Circuit explicitly joined its sister circuits in holding that prison conditions suits must be dismissed without prejudice ...

Chief Medical Officer Liable On Medical Policy Decisions

Chief Medical Officer Liable On
Medical Policy Decisions

by John E. Dannenberg

The Second Circuit US Court of Ap-peals held that a prisoner's complaint regarding a painful chronic medical complication that developed at the site of a knife wound raised genuine issues of material fact sufficient to defeat prison officials' motion for summary judgment. However, liability in the action fell only upon the chief medical officer, and not the superintendent or the chief of appeals who had heard the administrative appeal below.

New York state prisoner Vincent Brock suffered a knife wound from the corner of his right lip to his earlobe. After suturing, the outside hospital dermatologist declared it was healing remarkably well. However, it was noted that Brock had a history of "keloid formation" - a condition where abnormal fibrous tissue overgrowths of skin develop above and beyond the original wound, often for years. In addition to causing disfigurement, keloids can involve nerve fibers and become painful.

Brock's keloid condition worsened to where he could not smile, yawn, brush his teeth, chew food or sleep on his right side without pain, which he formally complained of nine months later. Collins Correctional Facility doctors noted the large keloid ...

Kentucky Jury Awards $2,641 to Estate of Murdered Prisoner

In the January, 2003, issue of PLN we reported Flint Ex Rel Flint v. Kentucky Department of Corrections, 270 F.3d 340 (6th Cir. 2001) where the court held that Kentucky prison officials and employees of Correctional Industries were not entitled to qualified immunity for failing to protect prisoner Robert ...

Retaliation Claim Satisfied by Existence of Major Misconduct Citation

Retaliation Claim Satisfied by Existence
of Major Misconduct Citation

by John E. Dannenberg

The Sixth Circuit US Court of Appeals held that the "substantial or motivating factor" element required satisfying a Michigan prisoner's protected speech First Amendment retaliation claim was satisfied by the existence of a major misconduct charge.

Michigan state prisoner Cleveland Brown had had an approved debit deducted from his prison trust account. Upon his transfer to another prison, part of the debit erroneously resurfaced, and was again deducted. Frustrated, he filed an embezzlement complaint against staff- later dismissed by police as meritless.

Subsequently, he was issued a major misconduct charge for filing a false complaint. He was acquitted in an administrative hearing when there was both insufficient evidence of malevolent intent and the appearance that improper manipulation of his account may indeed have occurred. Since he was already in segregation on other grounds, the new misconduct charge did not result in additional punishment.

Brown sued prison staff under 42 U.S.C. § 1983 alleging that he had been racially discriminated against; that the overcharges violated due process of law; and that rendering him too poor to buy basic hygiene products violated his Eighth Amendment rights and ...

Exposure to Second-Hand Smoke States Eighth Amendment Claim

The U.S. Court of Appeals for the Sec-ond Circuit reversed and remanded a district court's dismissal of a New York prisoner's lawsuit which complained of second-hand tobacco smoke.

Samuel Davis, a non-smoker, had been a prisoner at New York's Attica Correctional Facility since 1993. He had repeatedly complained of dizziness, blackouts, congestion, difficulty breathing, watery eyes, and respiratory problems caused by exposure to smoke. In February 1999, Davis filed a grievance complaining of smoke-laden air and the need to open a window near his cell. In March 1999, Davis was moved to different housing and his grievance was dismissed.

In April 1999, Davis filed suit in the U.S. District Court for the Western District of New York where, under 42 U.S.C. § 1983, he alleged that Attica Superintendent Walter Kelly and assorted other defendants violated his Eighth Amendment rights by forcing him to be exposed daily to excessive levels of second-hand smoke. Davis further alleged that defendants were deliberately indifferent because he was housed with prisoners who smoked frequently, the ventilation was inadequate, and guards prevented him from opening a nearby window.

The district court found that Davis failed to provide evidence that he ...

No Jurisdiction for Interlocutory Appeal Where Evidence Is Disputed in Failure to Protect Suit

No Jurisdiction for Interlocutory Appeal Where
Evidence Is Disputed in Failure to Protect Suit

by John E. Dannenberg

The Eighth Circuit U.S. Court of Ap-peals held that in a prisoner's Eighth Amendment claim for damages arising from an attack by another prisoner, jurisdiction did not lie for the appellate court to hear defendants' appeal of their denial of summary judgment below; because under the "collateral order doctrine," one cannot appeal denials of summary judgment where that would necessarily require the appellate court to pre-decide unresolved trial court evidentiary disputes that went to the heart of the complaint.

Arkansas state prisoner Ben Krein was suddenly attacked and had his jaw broken by fellow prisoner Michael Pruett while sleeping in Barracks #1 of the North Central Unit. Krein's 42 U.S.C. § 1983 suit was dismissed in the U.S. District Court, E.D. Ark., except as to his Eighth Amendment claim. But because the district court failed to decide defendant prison officials' qualified immunity defense, the Eighth Circuit determined it did not yet have jurisdiction to hear defendants' interlocutory appeal against the remaining Eighth Amendment issue, and remanded to the district court to first resolve the qualified immunity ...

Inquiry Required Before Dismissal for Failure to Pay Partial Filing Fee

Inquiry Required Before Dismissal for Failure
to Pay Partial Filing Fee

The Eleventh Circuit Court of Appeals has held a district court must inquire into why a prisoner failed to pay an initial partial filing fee as ordered by the Court before entering dismissal. Georgia prisoner Charles D. Wilson was granted in forma pauperis status upon filing a § 1983 action. Pursuant to 28 U.S.C. § 1915, he was ordered to pay an initial partial filing fee of $7.16 within 30 days. Six weeks later the fee had not been paid, and the district court dismissed the action. Wilson appealed.

Wilson argued he did not have the funds to pay the initial partial filing fee. The Eleventh Circuit found § 1915(b)(1) requires an initial fee to be paid "when funds are available." If the prisoner's funds are insufficient to satisfy the initial fee, any funds available until the account reaches a $0.00 balance must be remitted until the initial fee is fully satisfied. Once this fee is satisfied, then the prisoner has to make payments of 20 percent of the preceding month's income if the balance exceeds $10.00.

The Eleventh Circuit held that when ...

Warrantless Police Search of Prisoners Cell Upheld; Damages Awarded For Retaliation

Warrantless Police Search of Prisoners Cell Upheld;
Damages Awarded For Retaliation

The Second Circuit court of appeals has upheld the warrantless search of a prisoner's cell by guards acting for police detectives. $401 in damages was awarded for guard retaliation for the prisoner's exercise of his right to ...

No Appeal Bond Required for Indigent Colorado Litigants

No Appeal Bond Required for
Indigent Colorado Litigants

The Colorado Supreme Court has held that a state district court may not condition an indigent prisoner's appeal on the posting of an appeal bond.

Thomas E. Rodden, a Colorado prisoner in the State's Supermax had legal papers and other person effects removed from his cell and destroyed by guards. Rodden exhausted the grievance process then sued in county court which dismissed the action.

Rodden appealed to the district court and obtained an order from the county court to proceed on appeal in forma pauperis; however, the county court also required Rodden to post an appeal bond. Thus the court found he could not pay the $50 filing fee but could pay the $250 appeal bond. Rodden's appeal was dismissed for failure to post the bond. On certiorari, the state Supreme Court reversed the district court's dismissal holding that state law § 13-16-103 requires state courts to permit indigent litigants to appeal without payment of costs. See: Rodden v. Colorado State Penitentiary, 52 P.3d 223 (Colo. 2003).

PLRA Applies to Prospective Relief; Fees Are Not Prospective Relief

A federal court in Florida held that a provision of the Prison Litigation reform Act (PLRA) automatically staying enforcement of prospective relief under consent decrees applies only to prospective relief engendered within the consent decree, and not to the entire decree. Additionally, the court held that attorneys fees are not prospective relief and the stay provision does not bar the payment of attorney and monitoring fees.

In July, 1994, a consent decree was entered governing conditions of confinement in the Broward county jail in Ft. Lauderdale, providing "broad prospective relief with respect to the conditions of confinement within the Broward County jail system." The "consent decree provided for monthly payment of the Plaintiffs' attorney fees, and compliance monitoring, which would be completed by the Plaintiffs' counsel."

In August, 1996, following the enactment of the PLRA, jail officials moved to terminate or dissolve the consent decree. Arguing that all prospective relief is automatically stayed by operation of the PLRA defendants stopped paying attorney and monitoring fees to counsel for plaintiffs, who in turn, moved to recover those fees.

The court first addressed whether it is "only prospective relief that is stayed by the PLRA or everything which flows from the consent ...

Loss of Good Time for Kansas SATP Refusal Upheld

Loss Of Good Time For Kansas SATP Refusal Upheld

by Bob Williams

The Tenth Circuit Court of Appeals has held that even when loss of good time credits are the consequences of refusal to comply with the core requirements of Kansas' Sexual Abuse Treatment Program (SATP), there is still no compelled self incrimination; nor was admission of responsibility violative of the free exercise of religion; nor was deprivation of property violative of due process.

Edgar Searcy pled nolo contendere to charges of sexual exploitation of a child. He was sentenced to 65 months imprisonment. Because of the nature of the crime, the Kansas Department of Corrections (KDOC) recommended Searcy participate in the voluntary SATP. Searcy agreed. Upon entrance into the program, participants are required to sign a form accepting responsibility and complete a sexual history form which is verified by polygraph. This information is not protected; prosecution can result from revealed incriminations. Refusal to comply with these requirements results in a down grade from Level III (full privileges) to Level I (minimal privileges). Accompanying this down grade is a loss of good time sentence reduction credits which directly affects the prisoner's release date. Searcy refused to comply based on ...

South Dakota Attorney Fee Award of $106,877 Upheld Under PLRA

The U.S. Court of Appeals for the 8th Circuit has upheld an award of $106,877.74 in attorney fees for work done to enforce a consent decree issued by the U.S. District Court for the District of South Dakota. The case was a long running class action ...

Court Modifies Education Plan for Rikers Island Youth

by David M. Reutter

In continuing its enforcement of an "Education Plan" for the Rikers Island Academies, a New York federal district court has made modifications to the Plan because it is "deficient in many respects." PLN previously reported upon the previous ruling in this case. See PLN November 2000. This is a class action suit filed by youths sixteen to twenty-one years of age, who have not yet received a high school diploma or its equivalent. The Court granted the youth's summary judgment motion, and on June 29, 2000, reluctantly approved the Education Plan noting it would "not meet all the needs of incarcerated youths" and appointed a monitor.

After a year's observation, the monitor filed a Final Report. Based upon that report, both parties moved to modify the plan. The Court stated that although it is pleased that significant changes have occurred over the course of six years litigation, further modifications are required to fulfill the law.

Class members are entitled to schooling within 10 days of incarceration, and the Court held the defendant's were not adequately following the law and the plan when informing youths, especially the non-English speaking, they could enroll in educational ...

Oregon Contraband Conviction Reversed

The Oregon Court of Appeals reversed a prisoner's conviction for supplying contraband, finding that there was insufficient evidence to sustain the conviction.

Jose Hernandez, a prisoner at the Umatilla County jail, was found in possession of a powdery substance which was later determined to be the prescription antidepressant, Doxepin, which was controlled by jail nursing staff.

Hernandez did not have a prescription for Doxepin and he was charged under ORS 162.185, with and convicted of supplying contraband.

On appeal, the court interpreted the supplying contraband statutes as requiring two separate elements for an item to be considered "contraband": (1) its possession must be prohibited by statute, rule or order; and (2) its use must endanger the safety or security of the institution or persons therein.

Applying that definition to the Doxepin, the court found that while the State's evidence addressed the first prong of the statute, "[t]here was no evidence about the effects of Doxepin or how it would be dangerous to the safety or security of the institution or any person therein." As such, the court concluded that the trial court erred in denying Hernandez's motion for judgment of acquittal. See: State v. Hernandez ...

BOP Prisoners Eligible for Drug Treatment Without Documented History of Abuse

A U.S. District Court in Oregon found a federal prisoner was eligible for participation in a drug treatment program and a one-year sentence reduction upon successful completion of that program.

Martin Kuna, a prisoner at the Federal Correctional Institution, Sheridan, Oregon, filed a petition for writ of habeas corpus in U.S. District Court where he complained that the U.S. Bureau of Prisons (BOP) found him ineligible for a drug and alcohol abuse program and a one-year sentence reduction following the successful completion thereof.

Prior to being sentenced to federal prison, Kuna spoke with a probation officer who prepared his Pre-Sentence Investigation (PSI) report. Kuna admitted that he drank socially but was nevertheless denied eligibility for the substance abuse program because, according to BOP, the PSI revealed that Kuna drank alcohol only on a social basis.

On review, the court found that program eligibility criteria do not include verification of substance abuse or dependence, only written documentation that the prisoner used the substance for which treatment is sought. Kuna's PSI report documented that he drank alcohol and, said the court, that satisfied the eligibility criteria.

Kuna's petition was granted and the court found Kuna was eligible ...

News in Brief

Afghanistan: On October 10, 2003, 41 prisoners tunneled out of the Khandahar jail through a 30 foot tunnel. Some, but not all, the prisoners were members of the Taliban. Taliban commander Mullah Sabir told media that the group, which is fighting the American occupation of the country, paid prison officials $2,000 in bribes for each prisoner who escaped. Five prison employees were also missing after the escape. Prison officials would not comment.

Alabama: In November, 2003, the state Department of Corrections imposed a limit of $30 on the amount of money visitors to state prisons could bring with them to prisons. Prison vendors, many of whom are blind and receive government priority in contracts as a result, have complained that prison sales are off up to 60% as a result. Prison officials claim the limit was imposed because prison employees were spending too much time making change and dealing with money. Apparently a problem that cannot be resolved with the use of change machines or debit cards as it has been elsewhere in society.

Alaska: In October, 2003, Phillip Solomon, 44, was charged with allowing the escape of a Fort Yukon prisoner he had been hired to guard. Lacking ...

New Jersey Sex Offender Treatment Statute Creates Liberty Interest

The Third Circuit Court of Appeals reversed a district court's FRCP 12(c) dismissal of a prisoner's action stemming from a failure to provide sex offender treatment. The court held that the unique statutory scheme at issue created a liberty interest in treatment, for purposes of both procedural and substantive due process analyses.

In 1978, New Jersey prisoner Charles Leamer was sentenced under a since repealed statute, to an indeterminate term of up to 42 years upon a conviction of rape. "Under the terms of his sentence, he was to receive `specialized treatment for his mental and physical aberrations' and be released on when he is capable of making an acceptable social adjustment in the community.'"

In 1995 Leamer brought suit against prison officials, alleging that he was being denied the treatment that was mandated by law which, in turn, deprived him of parole eligibility. In his request for injunctive relief, Leamer asked "that the defendants be ordered to `refrain from denying Plaintiff his mandated treatment and requisite parole eligibility there from.'"

"The District Court granted the Defendants' Motion to Dismiss under Rule 12(c), resting its decision primarily upon its reading of Edwards v. Balisok, 520 U ...

Qualified Immunity Denied in BOP Transsexual Strip Search

The Tenth Circuit Court of Appeals has denied qualified immunity to federal prison officials for a transsexual strip search conducted in front of numerous spectators.

Dee Farmer, a prisoner in the Federal Bureau of Prisons (BOP) at FCI Englewood, Colorado, is a pre-operative male-to-female transsexual suffering from gender dysphoria. Farmer was first incarcerated in 1986 at age 18. For several years prior to her conviction she underwent estrogen therapy, received silicone breast implants, wore women's clothing, displayed feminine characteristics, and submitted to unsuccessful "black market" testicle-removal surgery. She was previously the subject of the controlling United States Supreme Court failure to protect case. See: Farmer v. Brennan, 114 S.Ct. 1970 (1994).

Over a decade ago, Farmer was housed in the Special Housing Unit (SHU) of FCI Englewood where policy mandated a "visual search" (strip search) when returning from the recreation yard. Despite verbal and written protests, and the BOP's own regulation (28 C.F.R. §552.11) requiring strip searches to "be made in a manner designed to assure as much privacy to the inmate as practicable," Farmer was strip searched in front of numerous male guards and prisoners.

In 1993, Farmer filed a Bivens action claiming ...


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