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Prison Legal News: January, 2001

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Volume 12, Number 1

In this issue:

  1. Hepatitis C, A 'Silent Epidemic' Strikes U.S. Prisons (p 1)
  2. Louisiana Prison System Exceeds Administrative Statutory Authority (p 4)
  3. U.S. S.Ct. Upholds PLRA Automatic Termination Law (p 5)
  4. Florida X-Wing Guard Acquitted in Valdes Beating (p 6)
  5. Wisconsin Supermax Bans Local Paper (p 7)
  6. Qualified Immunity Denied in CO Rape Case; Suit Settled for $70,000 (p 8)
  7. From the Editor (p 8)
  8. Eleventh Amendment Immunity for Illinois Sheriff Denied (p 9)
  9. Alabama Ad Seg Publication Ban Struck Down (p 9)
  10. Morrissey Protections Required for WA Community Custody Revocation (p 10)
  11. AZ Medical Copayment Not Retroactive (p 10)
  12. Iowa Segregation Suit Settled (p 11)
  13. Right to Associate Still Viable (p 12)
  14. Construction Contractor Not Liable Under §1983 for Disabling Fire Safety Equipment (p 13)
  15. Guard Reinstated After Nazi Flag Flap (p 14)
  16. Habeas Hints: State Remedies (p 15)
  17. DC Prisoners Sue VA Over Restraints (p 17)
  18. Build Jails, Not Schools: Ohio Prison Building Corruption (p 18)
  19. Administrative Exhaustion Required in Third Circuit; U.S. S. Ct. Grants Review (p 18)
  20. University Cancels Sodhexo-Marriott Contract (p 20)
  21. Sodexho Bows to Pressure, Announces Sale of CCA Stock (p 20)
  22. PLRA Attorney's Fees Cap Applies to Nonprisoner Intervenors (p 22)
  23. States of Confinement: Policing, Detention, and Prisons (p 22)
  24. Pubic Hair Search of Released Jail Detainee Unconstitutional (p 23)
  25. IFP Litigant Entitled to Amend Complaint (p 24)
  26. MO Consent Decree Modification Affirmed (p 24)
  27. News in Brief (p 25)
  28. NY DOCS Guard Nets $300,000 for ADA Retaliation (p 26)
  29. Certificate of Review Mandatory in Colorado Negligence Suits (p 27)
  30. DC District Court Denies Guards' Summary Judgment Retaliation Case (p 28)
  31. High Standard of Proof for Retaliation Claims (p 29)
  32. No Immunity for Ignoring Prisoner Work Restrictions (p 30)
  33. Cursory Medical Treatment Cruel and Unusual (p 31)
  34. NY Prisoners Have Liberty Interest in Work Release (p 31)
  35. Seventh Circuit Rejects ETS Claim (p 32)

Hepatitis C, A 'Silent Epidemic' Strikes U.S. Prisons

It's been called the nation's most insidious virus. A "silent epidemic" that has swept the nation, hepatitis C is now the most common, chronic, bloodborne infection in the U.S. Because the virus often causes no noticeable symptoms for up to 20 or 30 years after infection, most of those who are infected have no idea they are living with hepatitis C.

It's conservatively estimated that some 4 million Americans are now infected with hepatitis C (HCV). By comparison, less than 1 million Americans are infected with HIV, the virus that causes AIDS. And the nation's 2 million prisoners aren't even included in that estimate. While the number of new HCV infections in the nation has declined over the last decade, the incremental progress that has been made on educating and testing the general public is now severely threatened by what amounts to staggering infection rates behind bars.

By many accounts, the nation's prison populations are harboring the highest concentrations of hepatitis C in the country. From state to state, between 20% to 60% of the current national prison population is believed to harbor the virus, which can lead to chronic liver disease, cirrhosis ...

Louisiana Prison System Exceeds Administrative Statutory Authority

The Court of Appeals of Louisiana for the First Circuit has held the Department of Public Safety and Corrections (DPSC) exceeded its statutory authority when it referred prisoners to a "Special Court" for the additional forfeiture of good time when they had already received two authorized penalties for Schedule B disciplinary violations.

Terry A. Rivera, Sr. and Joseph Romero are Louisiana state prisoners who received Schedule B disciplinary infractions for Defiance/Aggravated Disobedience and Possession of Contraband, respectively. At separate disciplinary hearings, each received custody changes to maximum security/working cell block and failure to earn (F.T.E.) 30 days good time. Additionally, each was referred to "Special Court." At separate "Special Court" hearings, each received an additional forfeiture of 150 days good time. Both sued the Department of Public Safety and Corrections (DPSC) in state court alleging that the punishment exceeded statutory authority and the "Special Courts" were the result of an improperly adopted DPSC Rule.

La. R.S. 15:571.4 provides the penalties and minimal due process procedures the DPSC must apply in disciplining prisoners. It also requires that the DPSC comply with the Administrative Procedure Act (APA), La. R.S. 49:950, et seq., in ...

U.S. S.Ct. Upholds PLRA Automatic Termination Law

On June 19, 2000, a divided U.S. supreme court upheld the constitutionality of 18 U.S.C. § 3626(e)(2). In 1996 congress enacted the Prison Litigation Reform Act (PLRA). Among the PLRA's provisions are 18 U.S.C. § 3626(b)(2) which allows for the "immediate termination" of prospective relief in civil actions challenging prison conditions. As PLN has reported, this has allowed prison officials to terminate dozens of injunctions and consent decrees around the country. Section 3626(e)(2) provides for the termination of prospective relief 30 days after a party files a motion under § 3626(b)(2).

The underlying case began as a class fiction suit challenging conditions of confinement at the Pendleton Correctional Facility (PCF) in Indiana. At trial, the district curt held that conditions at PCF violated the Eighth amendment and issued an injunction ordering widespread improvement of barbaric and inhumane conditions. See: French v. Owens, 538. F. Supp. 910 (SD IN 1982) and 777 F.2d 1250 (7th Cir. 1985).

In 1997 PCF officials filed a motion under 18 U.S.C. § 3626(b)(2) to terminate the court's injunction. Section 3626(b)(2) states: "In any civil action with respect ...

Florida X-Wing Guard Acquitted in Valdes Beating

The first of five Florida State Prison guards to be tried in connection with the beating death of "XWing" prisoner Frank Valdes was acquitted by a jury in a rural county dominated by the state "corrections" industry.

In the October 1999 PLN we reported. that "XWing" prisoner Frank Valdes was beaten to death July 17, 1999 by Florida State Prison (FSP) guards during a cell extraction. Nine FSP guards were suspended pending investigation.

In the April 2000 issue of PLN we reported that four of the XWing guards were indicted February 2, 2000 on second degree murder charges. The four, Capt. Timothy Thornton, Sgt. Chuck Brown, Jason Griffis and Robert Sauls, are scheduled to be tried in February.

A fifth XWing guard, Montrez Lucas, 31, was charged in November 1999 with aggravated battery, malicious battery on an inmate and coercion to falsify reports, in connection with a confrontation he had with Valdes the day before he was fatally beaten.

State's Attorney (and State Senate candidate) Rod Smith orchestrated the Lucas trial. Smith could have asked the court for a change of venue, but decided to try the case before a jury in Bradford County, home to FSP and three ...

Wisconsin Supermax Bans Local Paper

When the southwestern Wisconsin town of Boscobel celebrated the grand opening of a 509bed supermax prison in September 1999, the festive atmosphere was likened to a carnival or state fair so happy were the townspeople to bring in jobs, jobs, jobs. Venders hawked sodas, sausages and supermax Tshirts to about 18,000 curiosityseekers who stood in lines for up to two hours for a chance to gawk at the gleaming new cathedral of incarceration. Boscobel's pipesmoking council president cheerfully hauled trailerloads of tourists from parking lots to the prison in his John Deere. About 3,000 school children, some as young as the fourth grade, toured the facility on class outings.

Two months later, the supermax ingested its first prisoner. By August 2000, 278 of Wisconsin's worstoftheworst were entombed in its bowels, watched 24-hoursaday by a TV surveillance system that focuses an unblinking eye on every cell.

Three 12 foot high razor wire fences stand between the prison and the town. The center fence is electrified. A barren zone outside the fence line is crisscrossed with microwave motion detection beams. And even though the prison's interior yard is open only to authorized staff (the prisoners never get ...

Qualified Immunity Denied in CO Rape Case; Suit Settled for $70,000

In an unpublished ruling, the Tenth Circuit has denied qualified immunity to prison officials who failed to protect a prisoner from being raped by another prisoner.

Marvin Gray, a "large and powerful individual with a violent past," was a prisoner at Colorado's Limon Correctional Facility (LCF) in 1993. He ...

From the Editor

Paul Wright

January 15, 2001, marks the end of PLN's matching grant fundraiser. PLN still hasn't reached the full $15,000 grant maximum. If you haven't donated yet to the matching grant fundraiser please do so now. We will report the fundraiser's results in the March, 2001, issue of PLN.

On November 14, 2000, the Ninth circuit court of appeals, sitting in Portland, Oregon, heard oral argument in PLN v. Cook. The suit is PLN's challenge to the Oregon DOC's ban on third class non profit mail. The ban has effectively kept PLN out of Oregon prisons for the past four years. PLN lost the case on summary judgment before judge Malcolm Marsh in Portland. The appeals court panel, judges Beezer, Rhymer and Graber, was well prepared for the case: Oregon is the only state whose prisons ban third class non profit mail. PLN has successfully litigated the issue in Washington and Utah. PLN's Seattle attornies, Sam Stiltner and Janet Stanton, brief and argued the case. Joseph Bringman, of the Seattle firm Perkins Coie filed an amicus brief on supporting PLN on behalf of the Washington ACLU, the National Lawyers Guild, Independent Press ...

Eleventh Amendment Immunity for Illinois Sheriff Denied

Denial of a county Sheriff's motion for dismissal of an arrestee's civil rights suit was affirmed when the Seventh Circuit upheld a district court's ruling that an Illinois Sheriff is a county officer and Eleventh Amendment immunity did not apply.

Mario DeGenova was arrested in October 1996 by DuPage County Deputy Sheriffs. DeGenova told the officers he suffered a serious cardiac condition and, even though he was holding his chest and breathing irregularly, DeGenova did not obtain medical treatment until his release the following evening.

DeGenova claims that as a result of the delay, he suffered serious medical harm and filed suit pursuant to 42 U.S.C. §1983 against the Sheriff in his official Capacity.

The Sheriff moved to dismiss the claim arguing that he is a State officer when he manages the jail and the Eleventh Amendment bars suits for damagesagainst the states. The district court denied the motion finding that the Sheriff is a county official and Eleventh Amendment immunity does not apply.

On appeal, the Seventh Circuit relied on McMillian v Monroe County, Alabama. 117 SCt 1734 (1997), where the Court recognized that since "both the role of the sheriffs and the importance ...

Alabama Ad Seg Publication Ban Struck Down

On March 20, 2000, a Federal Magistrate recommended declaratory relief striking down a ban on subscription publications in the Alabama Department of Corrections' (DOC) Administrative Segregation (Ad Seg) unit.

This recommendation follows a previous ruling where the Court held, after a bench trial, that the Ad Seg ban on the receipt of subscription magazines and newspapers violated the First Amendment. Both declaratory and injunctive relief were ordered. The Magistrate examined Administrative Regulation 433 (AR 433), in effect since 1987, and five facilityspecific versions known as Standard Operating Procedures (SOPS), "policy statements issued at the institutional level to implement the [AR]." While the SOPS were very inconsistent, and sometimes even conflicted with AR 433, the Magistrate held the SOPS to extend no more broadly than the AR itself which generally authorized only one religious book, one additional book or magazine from the facility library, and one Alcoholics Anonymous and Narcotics Anonymous book while in Ad Seg.

The bulk of the original order was spent analyzing John Spellman's claims under the standard of review for constitutional claims set forth in Turner v. Safley, 107 S.Ct. 2254 (1987). In Turner, the Supreme Court held that a prison regulation impinging on constitutional ...

Morrissey Protections Required for WA Community Custody Revocation

In a case of first impression, the Washington state court of appeals held that an individual facing community custody revocation is entitled to the procedural protections established in Morrissey v. Brewer, 408, U.S. 471, 92 S.Ct. 2593 (1972), but that counsel is not required.

Samuel McNeal filed a personal restraint petition seeking relief from the revocation of his community custody. The court found that the case was moot as applied to him because he had already served the time imposed as a result of the revocation and no relief could be provided. The court decided to address the issue, however, finding that it is of continuing and substantial interest.

At the outset, the court rejected the state's argument that RCW 9.94A.205(3) limits the due process required for community custody revocation hearings to those protections established in Wolff v. McDonnell, 418 U.S,. 539, 94 S.Ct. 2963 (1974). The court then observed that Young v. Harper, 520 U.S. 143, 117 S.Ct. 1148 (1997), established that individuals who are conditionally released from prison in an earlyrelease program which closely resembles parole are entitled to the procedural protections outlined in Morrissey.

The court cited ...

AZ Medical Copayment Not Retroactive

A federal district court in Arizona held that Ariz. Rev. Stat. (ARS) § 31201.01, which includes a socalled medical copayment provision, cannot be applied to state prisoners who are incarcerated for offenses committed prior tothe statute's effective date. In an unpublished ruling the state was permanently enjoined from applying the law to the prisoner/plaintiff.

In 1990, Gerald Souch was committed to the Arizona Department of Corrections (ADOC). From the outset, he was provided the usual cursory medical treatment of Tylenol, Ibuprofen, aspirin, etc., for a back injury he sustained in a motor vehicle accident prior to his incarceration. At some point, the ADOC began regularly charging him $3.00 medical copayments for treatment.

In May 1997, Souch filed a 42 U.S.C. § 1983 civil rights action against several ADOC doctors, alleging the treatment he was receiving was constitutionally deficient. He further contended that he was "wrongfully charged fees for medical services."

Two years later, the district court entered summary judgment for the defendants on Souch's Eighth Amendment claim. However, the court afforded the defendants an opportunity to renew their motion on the medical copayment issue, and the parties briefed the matter anew.

The defendants argued that ...

Iowa Segregation Suit Settled

A federal district court in Iowa
held that after nearly a decade of unconstitutional conditions, state prison officials have finally submitted an acceptable plan to remedy substantive due process violations relating to extraordinarily longterm lockup, and various Eighth Amendment violations in a segregation unit. In lieu of injunctive relief, the court afforded prison officials an opportunity to implement their plan.

In July 1990, George Goff was confined to Iowa State Penitentiary (ISP) when he brought a 42 U.S.C. § 1983 action alleging constitutional violations from various conditions of confinement in the segregation unit. In 1995, a class was certified, and two years later, following a trial, the court issued an extensive order setting forth findings of fact and conclusions of law.

In its order, the court found significant constitutional violations: (1) "extraordinarily long lockup sentences" that violated substantive due process; (2) inadequate mental health treatment, in violation of the Eighth Amendment; (3) deprivation of exercise, in violation of the Eighth Amendment; and (4) "pandemonium and bedlam" that also violated the Eighth Amendment. As a result of these findings, the court ordered ISP officials to develop a remedial plan.

On July 1, 1999, after rejecting the government's first three ...

Right to Associate Still Viable

The U.S. court of appeals for the Second Circuit held that genuine issues of fact, as to the reasonableness of an official denial of a prisoner's request to form a legal defense center, precluded summary judgment for prison officials. The court, however, further held that the officials were entitled to qualified immunity.

In May 1995, Jason Nicholas, a New York state prisoner confined to Woodbourne Correctional Facility (WCF), sought permission from local prison authorities to form a Prisoners' Legal Defense Center (Center). The organization would disseminate information to the public and the media on prison issues, lobby government on behalf of prisoners' issues, and "provide legal assistance to selected prisoners." Ultimately, Nicholas' requests, including administrative appeals, were denied.

In October 1995, Nicholas brought suit, pursuant to 42 U.S.C. § 1983, against two WCF officials and the N.Y. Department of Correctional Services (DOCS). He alleged an assortment of First Amendment violations (free speech, assembly, petition, access to court, political expression., and association), plus equal protection and due process claims. He sought preliminary and permanent injunctions, declaratory judgment and monetary damages. Eight months later, Chief Judge Griesa dismissed the complaint, pursuant to 28 U.S.C. § 1915 (d ...

Construction Contractor Not Liable Under §1983 for Disabling Fire Safety Equipment

Construction Contractor Not Liable Under §1983 for Disabling Fire Safety Equipment

A federal district court in Illinois has dismissed a private construction contractor from a suit alleging a prisoner was injured in a fire after the contractor's employees removed and disabled fire safety and prevention equipment in the prison. The court refused to dismiss prison officials from the suit.

Eutes White, an Illinois state prisoner, was injured in a prison fire which started when he fell asleep while smoking. The wing White was living in was in the process of extensive renovation by a private contractor. Both of the smoke evacuation fans in the wing had been removed and the fire alarm and smoke alarm systems were not functional. According to White, because of the faulty smoke evacuation and alarm systems, and the guards' unwillingness to assist him for an unreasonably long period of time, he received severe burns over a large part of his body and suffered from severe smoke inhalation. White sued guards, other prison officials, the private contractor and the contractor's employees pursues to 42 U.S.C. § 1983.

The defendants filed motions to dismiss for numerous reasons, including an expired statute of limitations. The ...

Guard Reinstated After Nazi Flag Flap

New York state prison guard Edward Kuhnel was suspended from his job on December 12, 1996, two days after a picture of a Nazi flag flying outside his home appeared in a local newspaper. Pursuant to the grievance procedure outlined in the collective bargaining agreement between the prison guards union and the State of New York, Kuhnel's suspension was submitted to arbitration. Both parties agreed that the arbitration procedure would be final and binding. The arbitrator concluded that the Department of Correctional Services (DOCS) had not sustained its burden of proof, determined that Kuhnel was not guilty of violating the charges contained in the notice of discipline, and reinstated Kuhnel with full back pay and benefits.

Kuhnel works as a guard at the Eastern Correctional Facility outside Ellenville, NY. When first confronted about flying the Nazi flag, Kuhnel said he was flying it because he liked the colors. Prison officials didn't buy it, and the State has since attempted to fire him. He's even been paid more than $105,000 to stay home. "There are certain rights one gives up to become a law enforcement officer," DOCS Commissioner Glenn Goord said at the time of the incident ...

Habeas Hints: State Remedies

by Kent Russell

This column is intended to provide "habeas hints" for prisoners who are considering or handling habeas corpus petitions as their own attorneys ("in pro per"). The focus of the column is habeas corpus practice under the AEDPA -- the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.

One of the hardest issues to understand when dealing with the AEDPA is how state habeas corpus fits into the picture. On the one hand, the AEDPA is a federal statute and doesn't technically have any effect on state habeas corpus. However, you can't file for federal habeas corpus until you first exhaust your state remedies, so what happens on state habeas corpus has a huge effect on the AEDPA -- so much so that a habeas corpus petitioner who doesn't have the state law bases covered is almost certain to get thrown out at one of the bases in federal court.

Below I discuss two important, inter-related areas in which the outcome on state habeas corpus affects federal habeas corpus petitions: (1) state procedural defaults; and (2) tolling of the AEDPA statute of limitations during the time that a "properly filed" state ...

DC Prisoners Sue VA Over Restraints

Since 1998, about 1,200 District of Columbia prisoners have been caged at the Sussex II highsecurity state prison in Virginia when D.C. closed its aging Lorton Correctional Complex. On August 29, 2000 a class action lawsuit filed on behalf of those prisoners claims they suffer "cruel degradation and humiliation" when they are shackled to bare metal beds for long periods. The suit, filed in U. S. District Court in Richmond, Virginia, seeks injunctive relief barring the use of "fourpoint restraints" at the Sussex II prison.

Eric R. Lotke, executive director of D.C. Prisoners' Legal Services Project, Inc., told the Richmond TimesDispatch that "they take these guys, they strip them down to their underwear, they lay them down on a flat... metal slab. And they tie them down by all of their extremities, their wrists, their ankles, [a] strap across their thighs and another strap across their chest and they leave them there," said Lotke.

Larry Traylor, a PR flack for the Virginia DOC, said the method of restraint meets constitutional standards and those set by the American Correctional Association. He denies that Virginia prisons use restraints as punishment.

"Inmates nationwide are notorious for complaining about prison conditions ...

Build Jails, Not Schools: Ohio Prison Building Corruption

The apparatus of repression provides frequent examples of the corruption endemic to late capitalism. It is hugely expensive, miniminaly accountable, and has no clear product by which to gauge its performance. Military fraud and waste are cliche. Endless police scandals regularly crop up around the country. The prisonindustrial complex is no exception. Why, for example, should a forprofit prison get an $8.1 million subsidy at the expense of impoverished city schools? Why should a jail cell cost $180,000? The jailing of Northeast Ohio's V Group, a cabal of companies owned by Paul Voinovich, brother of former Republican governor and now U. S. senator George Voinovich, suggests some answers.

The Dayton Daily News describes the V Group as "a Cleveland based architectural and construction management business". In August, 1995, the Group brought the City of Youngstown and Corrections Corporation of America (CCA) together to build CA's 1500bed Northeast Ohio Correctional Facility. According to CCA vice president David Meyers, the V Group also negotiated a property tax abatement for the prison and oversaw construction. Philip Hamilton, a former V Group lobbyist with close ties to both Paul and George Voinovich, was hired as a CCA lobbyist to facilitate ...

Administrative Exhaustion Required in Third Circuit; U.S. S. Ct. Grants Review

The Court of Appeals for the Third Circuit ruled that the PLRA requires exhaustion of administrative remedies for all prisonerinitiated prisoncondition federal court actions, even if "available" remedies exclude the specific relief sought. Applying the rule to both Bivens and § 1983 actions, the court held that there is no futility exception to this PLRA requirement. The Supreme Court has also granted review to reslove the circuit split on this issue.

Federal prisoner Douglas Nyhuis brought a Bivens action alleging violations of his property rights, seeking monetary, declaratory and injunctive relief, but without first having exhausted the Bureau of Prisons' "available" administrative remedies. He argued that because two of the three forms of relief he had sought have no BOP administrative remedy available, his pursuit of such remedies would have been for the most5 part futile and the PLRA's exhaustion requirement in 42 USC § 1997(e)(a) should not bar his action.

Recognizing the split in the circuits regarding remedies that amounted only to an "empty formality", the Third Circuit sided with the Sixth and Eleventh Circuits, holding that "[n]o one can know whether administrative remedies will be futile; the only way to find out is to try." Although ...

University Cancels Sodhexo-Marriott Contract

Students from Evergreen State College in Olympia, Washington, declared victory August 14, 2000 in a two month struggle to keep a catering company with ties to the forprofit prison industry from taking over the school's food service contract.

In July, school administrators announced that the college was in final negotiations with Sodexho Marriott Services over a 710 year contract. However, those negotiations broke down after a student group called "Not With Our Money" threatened to organize a boycott of school cafeterias.

Evergreen is the latest in a series of confrontations between SodexhoMarriott and college students, who say the company's violation of workers' rights and financial ties with scandalridden Corrections Corporation of America make it an unfit provider of campus dining services.

SodexhoMarriott's parent corporation, the Parisbased Sodexho Alliance, is a major stockholder in CCA, the worlds largest forprofit imprisonment corporation. Evergreen professor Peter Bohmer is convinced that student and faculty objections to the SodexhoCCA connection killed the contract."

"A large part of the Evergreen faculty, students and staff at this college find it morally reprehensible to buy food from a corporation so closely connected to the use of prisoners for profit. This victory is 100 percent due ...

Sodexho Bows to Pressure, Announces Sale of CCA Stock

Bowing to pressure from angry U.S. and Canadian student activists, Paris based Sodexho Alliance (SA) announced plans to sell its 8 percent stake in Corrections Corporation of America, as soon as CCA completes a corporate restructuring.

But in a statement released October 9, 2000. Not With Our Money! a coalition of student activists opposed to prison profiteering, expressed skepticism about the company's pledge and called on Sodexho to divest itself of all private prison holdings (including recently acquired U.K. Detention Services and Corrections Corporation of Australia) by April 1, 2001.

SA's North American subsidiary, SodexhoMarriott Services has been the target of protests on 50 of the 500 colleges and universities where the company operates dining hails and snack shops. At four campuses State University of NY at Albany, Evergreen State College (WA), Goucher College (MD) and James Madison University (VA) the protests have cost the company lucrative dining service contracts. SA's chairman, Pierre Bellon, acknowledge the student protests in a press release announcing the company's plans to sell off CCA stock.

"Today, we face a challenge in North America over the issue of forprofit prisons," Bellon said. "A handful of activists have called into ...

PLRA Attorney's Fees Cap Applies to Nonprisoner Intervenors

The Fourth Circuit has held that a publisher who intervened in a law suit filed by prisoners is subject to the attorney fees cap of the Prison Litigation Reform Act.

Virginia state prisoners Donald Hodges and Michael Flores sued Keen Mountain Correctional Center officials claiming that their First Amendment rights were violated when the officials prevented them from receiving Gallery magazine due to its graphic, sexually explicit, and arguably obscene content. A year later, the publisher of Gallery intervened. The publisher claimed that Virginia Department of Corrections Division Operating Procedure 852 (DOP 852), which permitted official interception of obscene materials, violated its First Amendment and due process rights.

The district court upheld the constitutionality of DOP 852 and the publisher appealed solely on the issue of whether DOP 852 violated its due process right to receive notice and an opportunity to be heard before its publications were banned. The Fourth Circuit agreed with the publisher and reversed the case. See: Montcalm Publisher Corp. v Beck, 80 F3d. 105 (4th Cir. 1996). The district court then issued a memorandum opinion consistent with the Fourth Circuit's opinion.

The publisher filed a motion for award of attorney's fees under 42 U ...

States of Confinement: Policing, Detention, and Prisons

Edited by Joy James. (New York: St. Martin's Press, 2000). 352 Pages

Reviewed by Mumia AbuJamal

Russian novelist Fyodor Dostoyevsky once opined that the nature of a civilization could be discerned by examining its prisons. If that is so, James has assembled a wide variety of essays that are reflecting an America that is a deeply repressive society.

The essays, penned by activists, scholars, lawyers and scholaractivists,

address issues such as the death penalty, racism in the socalled Criminal Justice system, the prison industrial complex, how gender impacts confinement, political repression, and the role of the police, from a number of perspectives that are uniformly critical of the existing regime.

Contributors include those known and unknown, like the son of the late, executed Julius and Ethel Rosenberg, Robert Meeropol, scholaractivist Angela Y. Davis, antideath penalty lawyers Steve Hawkins and Dan Williams, scholar Manning Marable, journalist Salim Muwakkil, PuertoRican activist Jose Lopez, the late environmentalist Judi Bari, and others.

The essays strike this writer as cogent, serious, and well thought out. They are also occasionally remarkably brilliant in their analysis, critique and proposed solution to a given social problem.

Some writers document a social reality, and by so doing illustrate ...

Pubic Hair Search of Released Jail Detainee Unconstitutional

A federal district court in Alabama held that a sheriff's policy of searching prisoners' pubic hair as they were released from jail was unconstitutional. The court also held that jail officials were entitled to qualified immunity from money damages for strip searching a detainee being placed in the jail.

Sandy Skurstenis was arrested for drunk driving and taken to the Shelby county jail in Alabama. After being booked into the jail, Skurtenis was strip searched by a female guard, then placed in an isolation cell to "sleep it off." Upon being released from the jail, T.O. Richey, a male employee of Shelby Baptist Medical Center employed by the jail, demanded a blood sample from Skurstenis, then told her to pull her pants down so he could check her for "crabs". Richey then ran his fingers back and forth through her public hair eight or ten times looking for body lice. Skurstenis was then released from the jail.

Skurstenis then filed suit claiming her strip search upon entering the jail and her pubic hair search violated her Fourth amendment right against unreasonable searches and seizures. The defendants moved for summary judgment. The court held there was no legitimate reason ...

IFP Litigant Entitled to Amend Complaint

The court of appeals for the Second circuit held that a district court erred when it dismissed an indigent pro se prisoner's complaint without affording him an opportunity to amend the complaint and cure the defect.

Benjamin Cruz, a Connecticut state prisoner, filed suit claiming his due process rights were violated when he was placed in administrative segregation (ad seg). Cruz was granted In Forma Pauperis (IFP) status and allowed to proceed without prepaying the filing fee. The district court then dismissed the complaint, sua sponte, under 28 U.S.C. § 1915(e)(2)(B)(ii) for failing to state a claim.

The court of appeals for the Second circuit reversed and remanded. The appeals court held that in his complaint Cruz had not stated a claim because he did not allege he had a due process liberty interest and was denied due process in his ad seg placement.

The court held that the lower court erred in dismissing the suit without giving Cruz an opportunity to amend his complaint to cure the defect. Readers should note that there is a circuit conflict on this issue with some circuits holding that § 1915(e)(2)(B)(ii) does not allow ...

MO Consent Decree Modification Affirmed

The court of appeals for the Eighth circuit held that a district court correctly granted prison officials' motion to modify a consent decree to allow for prison overcrowding. The ruling is novel in this post Prison Litigation Reform Act (PLRA) era when prison officials tend to seek dissolution of consent decrees, rather than modification.

In 1983 prisoners at the Moberly Correctional Center (MCC) in Missouri entered into a consent decree to reduce overcrowding from 1,800 to 1,265 prisoners. In 1995 the state filed a motion to modify the decree to allow 1,800 prisoners to be held at the MCC. The court granted the motion under FRCP 60(b)(5), finding improved conditions, an increase in staff and unanticipated prisoner population increases. Five pro se prisoners filed a motion to obtain new counsel, which was denied. The appeals court affirmed.

The court held that under FRCP 60(b)(5), courts can modify consent decrees based upon significant changes in the law or facts. See: Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748 (1992). Such modifications are reviewed on appeal for an abuse of discretion.

The court held that the modification ...

News in Brief

Brazil: On October 22, 2000, 420 prisoners at the Nelson Hungria prison in Contagem rioted and seized control of the prison to protest overcrowding and bad conditions: The prisoners took two policemen and 16 prison guards hostage.

CA: In July, 2000, Wackenhut Corrections Corp. announced it had received a 5 year, $140 million contract to house pretrial detainees for the U.S. Marshalls service at the Western Region Detention Facility in San Diego. The jail holds 616 prisoners. With this deal, Wackenhut now houses about 5,300 prisoners, INS and pretrial detainees for various federal agencies.

CA: Illustrating a "get soft" on rich criminals ten southern California cities now offer upscale jail cells for "non violent" prisoners willing and able to pay $76 a day for a private cell with cable TV, video library and exercise bike. Pasadena police chief Bernard Melekian says the luxury cells generate revenue and free up jail beds, presumably for the poor.

FL: In midOctober, 2000, the Gainesville police arrested Sylvia Akridge, 36, and her husband Alan, 36, on marijuana growing charges. Police found 52 marijuana plants in the couple's home as part of an elaborate growing operation. Sylvia Akridge is employed by theFlorida ...

NY DOCS Guard Nets $300,000 for ADA Retaliation

The U.S. court of appeals for the Second Circuit held that the absence of a finding of disability in a guard's Americans with Disabilities Act (ADA) claim did not preclude a finding that the guard's employer retaliated against him for bringing the claim. The judgment of the ...

Certificate of Review Mandatory in Colorado Negligence Suits

The Colorado Supreme court has held that prisoners must file a "certificate of review" under Colorado law when suing a licensed professional (LP) for negligence, whether or not the LP is a named party, but that a failure to file the certificate does not require dismissal of claims not based on professional negligence. The court also held that individual defendants and the state were not immune from liability and that the claim was sufficiently stated under §1983 against individual defendants in their personal capacities.

On September 29, 1991, Arthur Nieto, a Colorado State prisoner, complained of cold and flu symptoms to a nurse at the Delta Correctional Facility (DCF). He was treated and returned to his cell. On October 2, he again complained of these symptoms, this time to Marian Norman, a Registered Nurse and the facility's medical coordinator, who continued the flu treatment. With worsening symptoms and now a puffy eye, Nieto returned to the medical clinic but was confronted by Norman who threatened disciplinary action if Nieto returned again. Nevertheless, on October 6, Nieto returned with the additional symptoms of night fevers and rightsided headaches and told the nurse on duty that he thought he was having ...

DC District Court Denies Guards' Summary Judgment Retaliation Case

A federal district court in the District of Columbia has denied prison guards' motion for summary judgment and set for trial a civil rights suit alleging that guards retaliated against prisoners who complained of a guard's repeated unsolicited sexual propositions.

Frede Garcia, Lawrence Caldwell, and Antonio Tirado are District ...

High Standard of Proof for Retaliation Claims

On remand, a federal district court in New York held that a state prisoner failed to establish "actual injury" in his access to court claims, nor did he show that prison officials acted with a retaliatory animus. Once again, summary judgment was granted in favor of the defendants.

In December 1986, George Arce was transferred from Clinton to Attica state prison for the purpose of attending court proceedings in another federal case. Upon his arrival at Attica, Arce was placed in the Involuntary Protective Custody unit where he remained for his entire 18day stay.

While at Attica, Arce was denied all law library access, and his property, which included legal papers, never arrived from Clinton. Upon his return to Clinton, however, he noticed that some of his legal papers were missing. Based upon these occurrences, Arce filed a civil rights action asserting due process, access to courts, Eight Amendment, and retaliation claims.

In 1995, the district court granted summary judgment for the defendants on all Arce's claims. However, the Second Circuit subsequently reversed the access to court and retaliation claims. Arce v. Walker, 139 F.3d 329 (1998) [PLN Dec 1983]. On remand, the defendants moved for summary judgment ...

No Immunity for Ignoring Prisoner Work Restrictions

No Immunity For Ignoring Prisoner Work Restrictions


by Ronald Young

A federal district court for the Eastern district of New York held that a prisoner's allegations that he was required to perform sanitation duties despite a doctor's orders to the contrary were sufficient to state an Eighth Amendment claim. The court also held that prison officials were not entitled to qualified immunity.

Carter Howard, a New York state prisoner, brought a 42 U.S.C. § 1983 civil rights action alleging that prison officials who required him to work beyond his physical capabilities violated his First, Eighth, and Fourteenth Amendment rights. Howard sought damages and injunctive relief. The defendant prison employee's Superintendent Frank Headly, prison guard Daniel Crum, and Program Committee Senior Chair Kay FieglBock, moved pursuant to Rule 12 (b)(6) Fed. Rules Civ. Proc. to dismiss the complaint for failure to state a claim, and on qualified immunity grounds. The court denied the defendants' motion.

In 1997, Howard suffered back injuries while he was incarcerated at the Arthurkill Correctional Facility on Staten Island. According to his doctor, Howard's resulting back condition prevented him from doing strenuous work. In January 1998, Howard was assigned by the ...

Cursory Medical Treatment Cruel and Unusual

The U.S. court of appeals for the Eleventh Circuit held that a failure to diagnose a prisoner's colon cancer may have been extremely negligent, but it did not rise to the level of deliberate indifference. However, a factual dispute precluded summary judgment on the adequacy of treatment, and the district court's judgment was reversed in part.

On August 4, 1996, Thomas Elmore was incarcerated in the Okaloosa (Florida) county jail. For approximately five months prior to his confinement, he had experienced burning abdominal pain. This condition was noted in the jail's initial medical evaluation, which was approved by head nurse Sharon Wagner.

From the outset, Elmore experienced "severe abdominal pain, vomiting, and nausea," and the jail nurses were aware of Elmore's condition. On August 10th, Elmore was placed on a liquid diet and issued PeptoBismol. Nurse Wagner, and the jail's sole physician, Dr. Michael Foley, were apprised of Elmore's situation.

In the early morning hours of September 1st, nurse Wagner was contacted at home and informed that Elmore was vomiting and in severe pain. Later in the day, Dr. Foley was notified and he prescribed more liquid diet, PeptoBismol, and Tylenol for pain ...

NY Prisoners Have Liberty Interest in Work Release

NY Prisoners Have Liberty Interest In Work Release

by Ronald Young

A federal district court for the Eastern District of New York held that the failure of the state to provide a prisoner with 24 hour's notice of a hearing concerning removal from a work release program violated due process. The court also held that a letter justifying the removal solely on the basis of a parole hold did not comport with the due process requirement for a statement of reasons. In so holding, the court granted summary judgement to the prisoner on the issue of a procedural due process violation. In then first ruling the court granting the plaintiff summary judgment, holding his due process rights were violated when he was summarily removed from work release.

Michael Quartararo, a New York state prisoner, brought a 42 U.S.C. § 1983 civil action against the New York State Department of Correctional Services (DOCS) officers, parole officers, and current and past district attorneys and prosecuting attorneys. Quartararo argued in his crossmotion to the State Defendants' motion for summary judgement that his procedural due process rights were violated by his summary removal from the Temporary Work Release Program, without having received ...

Seventh Circuit Rejects ETS Claim

The U.S. court of appeals for the Seventh Circuit held that a pretrial detainee's injuries from exposure to environmental tobacco smoke (ETS) were not sufficiently serious to support a due process claim, and that he could not recover for future injuries absent some showing of an increased risk of developing future injuries attributable to the ETS exposure.

In January 1990, Ellis Henderson began a 4-1/2 year stint as a detainee in the Cook County (Chicago) jail. Although "Henderson was housed in or had access to a nonsmoking tier," he claimed

the policy was rarely enforced, routinely violated, and that he was constantly "exposed to excessive levels of [ETS] throughout his detention."

Henderson further alleged that he was forced to cell with smokers, and "continuous exposure to excessive levels of [ETS] caused him to experience difficulty in breathing, chest pains, dizziness, drowsiness, sinus problems, burning sensations in his throat and headaches." According to Henderson, the longterm exposure to this carcinogenic brew placed him in substantial risk of significant future health problems.

A "serious injury or medical need" is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a ...

 

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