Prison Legal News:
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Volume 11, Number 9
In this issue:
- The Restraint Chair: Safe and Humane? (p 1)
- Prison Realty/CCA Bailout Deal Canceled (p 6)
- Deviant Doctors Dumped on Prisoners (p 7)
- Former Political Prisoner Settles Suit for $4.5 Million (p 8)
- Penis Stomping Guard Loses Appeal (p 9)
- PLN Sues Nevada DOP (p 9)
- WA and IN Prison Phone Rates Challenged (p 10)
- Pro Se Tips and Tactics (p 11)
- The Ride: Rise of the NLR (p 13)
- Colorado DOC Attacks Jailhouse Lawyers (p 15)
- Sex Offender Label May Require Due Process (p 15)
- Change in Fulton County, GA: Indigent Defense, HIV, and Community Organizing (p 16)
- Prison Physician Liable for Refusal of Care (p 18)
- Washington Earned Early Release Credits Create Due Process Liberty Interests (p 19)
- Fines Against WA Civil Commitment Center Stayed (p 20)
- U.S. Parole Commission Retaliation Reversed (p 21)
- $53,000 Settlement in AL Conditions Suit (p 21)
- Counsel Awarded High EAJA Fee Despite Contingency Fee in BOP Rape Suit (p 22)
- Bush's Conservative Compassion: Allowing a Life Sentence for Three Bounced Checks (p 24)
- Censorship challenged in CO DOC (p 25)
- News in Brief (p 26)
- No Qualified Immunity from ETS Exposure (p 28)
- Two Guards Killed During Botched Missouri Jail Escape (p 31)
- Race-Based Religious Policy Violates Equal Protection Clause (p 31)
children have been strapped into the chairs for nonviolent behaviors;
nude prisoners and detainees have been strapped into restraint chairs;
prisoners have been left in restraint chairs for as long as eight days. In some cases, the jail staff failed to manipulate the prisoner's limbs to protect against blood clots;
prisoners have been required to testify while in restraint chairs;
prisoners have been interrogated while in ...
Jail and prison employees call it the "strap-o-lounger," the "barcalounger," the "we care chair," and the "be sweet chair." Prisoners and their lawyers have other names for the device: "torture chair," "slave chair," and "devil's chair." They are not referring to the electric chair, but to a restraining device that has led to many serious abuses, including torture and death. Belts and cuffs prevent the prisoner's legs, arms, and torso from moving. The restraint chair is designed for violent prisoners who pose an immediate threat to themselves or others. But according to interviews with prisoners, lawyers, and restraint chair manufacturers, as well as a review of court cases, jail videotapes, coroners' reports, and scattered news stories, it is clear that the restraint chair is being used in an improper-and sometimes sadistic-manner:
On June 30, Prison Realty announced that the deal had been "mutually terminated." For its part, Pacific Life was dissatisfied over key conditions that Prison Realty failed to meet. Pacific Life wanted Prison Realty to obtain a four-year extension on its bank credit and settle pending lawsuits for an amount not higher than the company's insurance coverage. Instead, Prison Realty arranged with its bank lenders to extend their credit line 18 months, and failed to resolve pending lawsuits.
The deal with its bankers also allowed Prison Realty to borrow $55 million to meet immediate funding needs. That, and a $760 million 10-year contract with the Bureau of Prisons to operate two federal prisons, gave Prison Realty management the confidence to restructure the company without outside help.
On the cover of the July PLN we reported that the nation's largest private prison owner and operator, Prison Realty/CCA, verged on bankruptcy and that one of its principal shareholders, Pacific Life Insurance Co., planned to infuse a $200 million equity investment into the ailing company. When the July PLN when to press the deal had been agreed to but not yet finalized. Just days later the deal fell through.
According to a California prisoner and PLN subscriber, Dr. Andres is the Chief Psychiatrist of the infamous northern California supermax dungeon, Pelican Bay State Prison. He is also, in the words of this subscriber, "a convicted serial sexual predator." Pretty strong words. But PLN has obtained court documents that provide ample evidence to back them.
In 1992 Andres, who until then had operated a solo psychiatric practice, had his medical license suspended by the state medical board. This action was taken after Andres was convicted in Sutter County (CA) Municipal Court of "sexual exploitation by a psychotherapist."
Court records reveal that Andres indeed used his medical practice to prey upon patients (who are referred by initials only): Patient D.C. said that Andres had her "remove her clothing from the waist up so that [he] could check her heart rate."
Andres similarly violated patient H.O. by having her "remove her clothing so that [he] could check her heart rate, and by fondling [her] nipples under her ...
How does a psychiatrist come by the "qualifications" required to work in a state prison? Not all prison doctors have questionable pedigrees, but the case of Dr. Valentino Andres is all too common.
On April 26, 2000, the city of Los Angeles, California and the federal government agreed to pay former political prisoner Geronimo Ji Jaga (formerly known as Elmer Pratt) $4.5 million to settle a wrongful imprisonment suit he had filed. Ji Jaga is a former member of the Black Panther ...
Walsh appealed his conviction claiming that (among other issues raised) the evidence presented at his trial "failed to demonstrate that: (1) his alleged actions constituted 'punishment' prohibited by the Eighth or Fourteenth Amendments; (2) he caused injury of constitutional dimensions; or (3) he was acting under 'color of law' at the time of the alleged incidents."
Walsh was convicted in large part on the testimony of fellow jail guard Joseph Kujawa (along with testimony by two other guards and two jail detainees). Kujawa, who witnessed several incidents of Walsh assaulting Fowlks, said he initially failed to report the abuse because he feared retaliation. He would have had to report the abuse to Walsh's superior, the warden. Kujawa testified that Walsh and the warden were buddies and that he had frequently observed the warden taunting the mentally disturbed Fowlks alongside Walsh.
Some of ...
In the July '99 issue of PLN we reported the conviction of former Orleans County Jail (Albion, NY) Lieutenant John Walsh on three counts of violating the civil rights of jail detainee Norvin Fowlks. Walsh was alleged to have tormented and abused Fowlks, who was described as mentally disturbed, and stomped on Fowlks' penis on numerous occasions.
Efforts by PLN and several of PLN's prisoner subscribers to resolve the matter were unsuccessful. Nevada prison director Robert Bayer refused to address PLN's concerns about the blanket censorship, referring us to assistant attorney general Keith Munro, who was also dismissive of PLN's concerns. Not only is PLN, the magazine, banned in all Nevada prisons, so are all other mailings from PLN, including letters about the censorship, subscription renewals, book orders, etc. The censorship was apparently ordered by John Slansky, assistant director of the Nevada DOP.
The lawsuit, filed in federal court in Reno, claims that the blanket ban on PLN violates PLN's First Amendment right to free speech and Fourteenth Amendment right to due process of law. The censorship has been occurring with no notice or reason for the censorship and no opportunity for the parties to administratively appeal. The lawsuit seeks declaratory, injunctive and monetary relief. The plaintiffs are PLN ...
On June 11, 2000, PLN filed suit against the Nevada Department of Prisons for censoring PLN at all Nevada prisons. Beginning in September, 1999, Nevada prison officials have banned PLN from all Nevada prisons claiming that "inmate correspondence" and "inmate newsletters" are not allowed.
The complaint states that people receiving in state long distance calls from Washington prisoners are not informed of the rates they are being charged for the call. People residing in other states who receive long distance collect calls from Washington prisoners were not afforded an opportunity to learn the rates they were being charged prior to November 1, 1999, when the Federal Communications Commission mandated disclosure of the rates. This lack of rate notification violates RCW 80.36.520 which requires that phone companies inform consumers of the rate they are being charged for phone services. Violations of the statute are actionable in state court with damages presumed as the cost of service, plus $200 per violation (i.e., per call). RCW 19.86.090 allows for civil suits that seek triple damages, injunctions and attorney fees for violations of the ...
On June 20, 2000, a class action suit was filed in King county (Seattle) superior court in Washington. The suit claims that various phone companies that have contracted with the Washington Department of Corrections to provide collect call services for Washington prisoners have violated RCW 80.36.520 and RCW 19.86.090, of the Washington Consumer Protection Act.
by John Midgley
In three recent decisions, the U.S. Supreme Court addressed the kind and quality of representation to which people are entitled on appeal of their criminal convictions. If your conviction is on appeal (or should have been appealed but was not), you need to know about these cases and how you might take steps to address problems they present.
1. Anders procedure no longer required.
In Anders v. California, 386 U.S. 738, 744 (1967) and other cases, the Supreme Court held that before an attorney appointed to conduct a criminal appeal could withdraw claiming the appeal was frivolous, the attorney must draft and file a brief "referring to anything in the record that might arguably support the appeal" and send the brief to the convicted person so that they could submit additional argument. This year, in Smith v. Robbins, 120 S.Ct. 746 (2000), a bare five-person majority of the Court approved a California procedure that does not require counsel to "refer to anything in the record that might arguably support an appeal." The California procedure permits counsel who thinks a case is frivolous to merely summarize ...
Supreme Court on Kind and Quality of Appellate Counsel
By W. Wisely
With virtually all confirmed members of the Aryan Brotherhood indefinitely sentenced to Pelican Bay's infamous SHU, a new group moved in to fill the void on California prison yards. The pace of stabbings, slashings, assaults, and race riots in maximum security, Level IV, prisons has increased. The world's largest and most costly gulag is proving to be fertile ground for the seed of one next-generation white supremacist prison gang. Officially sanctioned racism from segregated housing, assignment quotas, to barbering services, nurtured a new wave of angry white males. The Nazi Lowriders.
July 29, 1999, about 8 in the morning. I'll write as long as I can. Guard told Southern Mexicans last night all cells to be searched today. Chicans, NLR will cell extract in protest. 15 to 20 guards, 4 sergeants, fire chief, several MTAs, maintenance men, lieutenants, and captains. Cloud of pepper spray spreads through block. Took twenty minutes to cut sheets tying first cell shut. Gassed two Southern Mexicans ten times, jerked door open. Six gooners, helmets, face shields, gas masks, bullet resistant vests, black leather gloves, steel toed paratrooper boots, knee and shin guards. Push ...
THE RIDE: Rise of the NLR
The Court of Appeals held the attempted bartering charge could not stand since just receiving letters from other prisoners with offers to pay for legal work, without more, did not meet the elements of the disciplinary charge. Tebbetts could not be convicted of possessing another prisoner's legal papers since the Code of Penal Discipline (COPD) stated that "no conduct shall constitute an offense unless provision for it is made in the code." No such provision was in existence at that time.
To counter the growing trend of prisoners successfully helping other prisoners with litigation, and thus possessing their legal documents, the CDOC amended the COPD effective September 1, 1999, to add a new charge specifically outlawing possession of another prisoner's legal work without the other prisoner being present. Direct sanctions are up to 60 days loss of privileges, up to 20 days punitive segregation, and up to 30 days loss of good time. Indirect sanctions include earned time ineligibility ...
In March 1998, PLN reported on the case of Tebbetts v. Whitson, 956 P.2d 639 (Colo.App. 1997), where a Colorado prisoner was convicted of attempted bartering as a jailhouse lawyer and possessing another prisoner's legal papers.
Jeffery Kirby and Robert Edmond are Alabama state prisoners who filed separate pro se challenges to Alabama's Community Notification Act (Ala. Code § 15-20-20). Their cases were consolidated for appeal. Kirby's claims that the Act violates the Ex Post Facto and Double Jeopardy Clauses of the U.S. Constitution were dismissed by the district court as not being ripe for appeal (because Kirby wouldn't be required to register under the Act until after his release from prison). The Eleventh Circuit upheld the lower court's dismissal of Kirby's claims.
In Edmond's case, the district court had granted summary judgement to the state on the issues (equal protection and due process) and it also determined that Edmond's claim was not ripe (because, like Kirby, he had yet to be released from prison).
Edmond had been convicted for attempted murder but was nonetheless later classified by prison officials as a sex offender. The Eleventh Circuit, agreeing with ...
The Eleventh Circuit ruled that absent a conviction for a sex related crime, classification of a state prisoner as a sex offender (and requiring him to register as a sex offender) implicates a liberty interest under the Due Process Clause.
In 1994 a prisoner in the jail named Sam Stinson filed a pro se case in federal court (U.S. District Court Northern District of Georgia) against the Fulton County Commission because he had been held in the jail for four months without speaking to an attorney or investigator about his case. He had neither been indicted nor had a bond reduction during ...
The Fulton County Jail in Atlanta is the largest jail in Georgia, with approximately 3,000 prisoners held there for months and sometimes years waiting for their cases to be resolved or to be transferred to a state prison. In early 1999, the medical care for people who are HIV+ was virtually non-existent; people waited approximately one year before being indicted or talking with an attorney; the roof leaked chronically, causing water to run down the walls of the medical unit and most other units; and it was crowded with over 4,000 prisoners, approximately 1/3 of whom slept in dayrooms, in hallways, or on the floor. In the course of one year, under the pressure of two major lawsuits and a grassroots community organizing effort, the county has been forced, reluctantly, to change.
The Seventh Circuit Court of Appeals held that a federal prisoner's Biven's claim did not state a medical care claim against a prison guard who failed to have the prisoner checked out after the prisoner complained of pain. The court also held, however, that fact questions precluded summary judgement on the medical care claim as it related to the care provided to the prisoner by the prison physician.
Clifford B. Jones, a federal prisoner incarcerated at Chicago's Metropolitan Correctional Center (MCC), filed a civil rights suit under Biven's v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971) (known as a "Bivens" claim). Jones sued four employees of the Federal Bureau of Prisons, alleging that they had "subjected him to excessive force and refused to give him medical treatment, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment."
The district court dismissed the medical care claim in response to the prison employees' motion in the alternative for dismissal on the pleadings or summary judgement. The excessive force claim was allowed to proceed to a bench ...
Prison Physician Liable For Refusal of Care
Matthew S. Crowder, a Washington prisoner, was convicted of two counts of third degree rape of a child. He was sentenced to 60 months' confinement. He became eligible for placement in community custody on October 24, 1997. However, he was not released into community custody until February 2, 1998, 101 days after his earned early release date for community custody. Before his release he filed a personal restraint petition asserting that although he had been granted early release credits, they were being arbitrarily denied without due process.
The State conceded that Crowder was eligible for transfer into community custody on October 24, 1997, however, the State did not agree that he was therefore entitled to release. It was the State's position that due to Crowder's own noncompliance with sexual predator release factors or other Department of Corrections (DOC) program factors, he could not be released.
The court held that the statutory right to earned early release credit creates a limited liberty ...
The Washington State Court of Appeals, Division One, has held that: (1) a prisoner's right to community custody placement created limited due process liberty interests, but (2) delay did not violate prisoner's due process rights.
On May 5, 2000, judge Dwyer held another fact-finding hearing to determine the state's progress in complying with the injunction. The results were mixed. Though the court found that the state had "worked diligently toward the goal of bringing the SCC program up to minimum professional and constitutional standards... [s]hortfalls continue to exist in every area as the result of earlier failures to take the necessary steps, but these can be cured rapidly if the current energetic approach continues."
His ruling concluded that the state's "efforts and ...
In the May 2000 issue of PLN we reported the progress of a federal court injunction issued in 1994 against Washington's Special Commitment Center (SCC), the nation's first civil commitment facility specifically for the long-term detention and "treatment" of "sexual predators." In his Nov. 15, 1999 contempt ruling, U.S. District Court judge William L. Dwyer bemoaned that constitutionally minimum "basic treatment requirements were ordered long ago [and] the continued failure to achieve full compliance is unexcused." He gave the SCC until May 1, 2000 to achieve full compliance with the court's 1994 injunction or face the imposition of fines totaling $50 per day per SCC detainee.
In Pearce, 395 U.S. 711 (1969), the Supreme Court ruled that a presumption of vindictiveness applies whenever a sentencing judge who has been reversed on appeal imposes a harsher sentence upon a second conviction than was imposed after the first. Unless the judge places on the record, at the time of sentencing, valid reasons for imposing an increased sentence, the increased sentence will be presumed to be the result of vindictive retaliation, which violates the defendant's due process right to pursue an appeal without fear of being penalized.
In Bono, the petitioner, a federal prisoner, had long held a presumptive parole date of 30 years. After the release date was granted, but before it actually arrived, Bono successfully brought two habeas corpus actions against the Parole Commission. Immediately after winning the second habeas petition, the Parole ...
The Ninth Circuit U.S. Court of Appeals issued a ruling that safeguards the due process rights of prisoners whose release dates are committed to the discretion of parole agencies. In Bono v. Benov, 197 F.3d 409 (9th Cir. 1999), the court affirmed the application of the North Carolina v. Pearce presumption of vindictiveness to the actions United States Parole Commission.
In August, 1997, eight prisoners were placed in a 7 x 11 ...
On April 8, 2000, the Alabama Department of Corrections settled a conditions lawsuit by agreeing to pay eight prisoners $53,000 in damages and establish basic standards of care at the Loxley Community Work Center in Mobile, Alabama.
By Mark Cook
The U.S. District Court for the Northern District of California held: (1) prisoners' action was not one sounding in tort, so an attorney fee award was not barred by sovereign immunity; (2) fact that ...
Counsel Awarded High EAJA Fee Despite Contingency Fee in BOP Rape suit
Texas Governor George Bush has based his presidential aspirations on the questionable concept of compassionate conservatism, but how compassionate is the Texas criminal justice system in dealing with its citizens under the Bush regime.
Consider the case of Billy Wayne Brown, a Texas prisoner doing a life sentence for having written three insufficient funds checks with a total value of $ 952.
Billy Wayne was first arrested in 1968 when he bounced a $56 car insurance check His second case came in 1975: a $256 check for a CB radio and antenna. The third case was for a $640 rent check he bounced in October, 1981.
Billy Wayne had signed the check in question in his third case, but it was a pre-signed check that his wife had torn out of his checkbook and used to write the overdraft. He felt he was innocent, he had paid off the bad check, so he took the case to a jury trial. On April 27, 1982, the jury convicted him of the theft of service by writing the bad check.
Three strikes laws are nothing new to the Texas criminal justice system. In their previous incarnation, they were miserable ...
by Matthew T. Clarke
Eight publishers, the Association of Alternative Newsweeklies, and seven Colorado prisoners have filed suit in Federal District Court challenging the Colorado Department of Corrections (CDOC) Administrative Regulation (AR) 300-26 governing prisoner reading material. Over the past three years the prisoners, housed in various CDOC facilities, have had numerous magazines and books censored and declared contraband with little or no effective recourse.
The publishers and their censored publications include New Times, Inc. and the Association of Alternative Newsweeklies (Westword), Dark Night Press (Dark Night Field Notes), Clay Douglas (Free American), Larry Rice (Cry Justice Now), Doret Kollerer (North Coast Xpress), Maoist International Movement (MIM Notes), the Barrio Defense Committee (Voz Del Barrio Aztlan), and Christine Donner (Shut Them Down). Christine Donner is also the coordinator of the Prisoner's Rights Project of the Rocky Mountain Peace and Justice Center.
In addition to the eight publications of the plaintiff publishers, other censored publications identified in the complaint include 11 magazines: Rolling Stone, VIBE, Lowrider and Lowrider Arte, The Source, Blaze, Yo, Scenario, Aerosol Art, Voz Fronteriza, and Drama Script Review. Six books were identified, including: The Hidden Faces of Eve, Like Water for Chocolate, Criminal Injustice: Confronting ...
Censorship Challenged in CO DOC
AR: On July 12, 2000, former Washington County Detention Center guard Earl Guillory Jr., 38, of Fayetteville, admitted he performed oral sex on two girls under the age of 17 who were imprisoned at the jail. Guillory had already pleaded guilty to two counts of first degree violation of a minor and had been sentenced to six years probation. Guillory violated the terms of his probation by writing hot checks, for which he was sentenced to three years in prison. Apparently writing bad checks is deemed a more serious offense than raping imprisoned children. At the sentencing, judge William Storey told Guillory , "You've gotten a huge break in these cases. I hope you'll take advantage of it."
Brazil: On July 12, 2000, 800 prisoners at the Ahu provisional prison in Curitaba seized control of the prison to ...
AL: Citing "loyalty problems," on June 19, 2000, prison commissioner Mike Haley removed deputy commissioner John Shaver from his $71,000 a year job as head of the DOC's treatment programs. Shaver was transferred to a post as administrative services officer at a state prison, with a $20,000 a year pay cut. No details were given for the demotion.
This case began two months after Helling, when three Sing Sing prisoners brought suit, pursuant to 42 U.S.C. § 1983, in federal court, alleging they were being subjected to cruel and unusual punishment through ETS exposure. Their pro se amended complaint claimed that high levels of ETS in their cells and in common areas were the result of poor ventilation,and poorly conceived and under-enforced smoking regulations.
The defendants, five NY DOCS officials, moved for summary judgment on two grounds: (1) exposure to ETS does not violate the Eighth Amendment, and (2), even if it does, they would be entitled to qualified immunity. After appointing counsel for the prisoners, summary judgment was denied and the parties were directed to complete discovery. Warren v. Keane, 937 F.Supp. 301 (SDNY 1996) [PLN July 1997].
After discovery, prison officials renewed their ...
The U.S. court of appeals for the Second Circuit held that it was clearly established after Helling v. McKinney, 509 U.S. 25 (1993), that prison officials could not be deliberately indifferent to exposure of prisoners to levels of environmental tobacco smoke (ETS) that posed an unreasonable risk of harm to their future health, without violating the Eighth Amendment.
After killing the two guards, who were unarmed, the two searched for the key to open their friend's cell but couldn't find it and fled, authorities said.
Guards Leon Egly, 33, a Huntsville city councilman and jail supervisor, and Jason Acton, 36, a jail guard on the job for two months, were both shot repeatedly with a pistol.
Suspects Michael Tisius, 19, and Tracie Bulington, 27, were captured unarmed about nine hours later after being spotted walking along a highway 130 miles away. Both have been charged with murder.
Authorities said the suspects were trying to free Bulington's boyfriend, Roy Vance, who had recently been transferred from the Macon County Jail after an attempted escape. Vance had been in the Macon jail 15 times on drug and property damage charges. Bulington had been in and out of jail on charges including drug offenses, authorities said.
Randolph County Sheriff Don Ancell said jailers routinely ...
On June 22, 2000, a man and a woman rang the night bell of small county jail in Huntsville, Missouri, and when they were let in gunned down two guards in a botched attempt to spring a friend who was detained at the jail.
Thomas Mitchell, Jr., a white, non-Native American prisoner of the Virginia Department of Corrections, (VDOC), sued prison officials, claiming that a prison policy which prohibited him from obtaining Native American spiritual items violated the First Amendment and the Equal Protection Clause.
Mitchell asserted that his religion is based upon Native American spiritual practices. He requested approval to purchase herbs and an abalone shell but his request was denied "until he could prove he was a Native American."
Under the VDOC policy, Native American prisoners were entitled to acquire these items but prison officials refused to entertain requests for these items by prisoners of any other race. Regardless of the sincerity of a prisoner's faith in Native American spiritual practices, non-Native American prisoners were precluded from obtaining these items.
Applying Turner v. Safely, 482 U.S. 78, 107 S.Ct. 2254 (1987), the court held that this race-based exemption policy was not reasonably related to legitimate safety and ...
A federal district court in Virginia held that a race-based prison policy preventing non-Native American prisoners from obtaining Native American spiritual items violated the Equal Protection Clause. The court issued an injunction enjoining the application of the policy, based solely on race.