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Prisoner Education Guide

Prison Legal News: October, 2001

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Volume 12, Number 10

In this issue:

  1. America's Jails: The Dungeons of the New Millenium (p 1)
  2. From the Editor (p 7)
  3. The Connally Seven - A Texas Prison Escape and its Aftermath (p 8)
  4. Not Part of my Sentence: The Rape of Washington Prisoners (p 10)
  5. The Cost of Running Washington's Rape Camps (p 13)
  6. Male Prisoner Settles Guard Rape Suit for $6,000 (p 14)
  7. Qualified Immunity Denied in Washington Rape of Transsexual Prisoner (p 15)
  8. Jury Awards $5,000 to Beaten Texas Prisoner (p 16)
  9. BOP Lieutenant Pleads Guilty to Brutality Charges (p 16)
  10. Malicious Use of Force Violates Eighth Amendment (p 17)
  11. Damages in Denial of Exercise Suit Reversed (p 18)
  12. Use of Restraint Chair Not Cruel and Unusual Punishment (p 19)
  13. Chinese Company Convicted of Using Forced Prison Labor (p 20)
  14. The Prison Payoff: The Role of Politics & Private Prisons in the Incarceration Boom (p 21)
  15. PLN Wins Nevada Censorship Suit (p 22)
  16. California State Prisoner's Handbook (p 23)
  17. Sanction Excessive When It Excludes Medical Expert's Testimony (p 25)
  18. Administrative Exhaustion Not Jurisdictional (p 26)
  19. Federal Appellate Rule 4(a)(6) Trumps Civil Rule 60(b) (p 26)
  20. Diabetic Prisoner's Deliberate Indifference Claim to Proceed to Trial (p 27)
  21. Denial of Interest Does Not Violate Takings Clause (p 27)
  22. Ohio ACLU Challenges Supermax (p 28)
  23. The Prison Activist Resource Center: It's About Sharing Resources and Working Collectively (p 29)
  24. Sixth Circuit Upholds PLRA Attorneys' Fees Cap (p 30)
  25. News in Brief (p 31)

America's Jails: The Dungeons of the New Millenium

At any given time there are approximately 500,000 people incarcerated in the more than 3,500 city and county jails across the United States. Some of these individuals are confined while awaiting trial, others are serving relatively short sentences for offenses ranging from misdemeanor or minor felony convictions to probation or parole violations. These prisoners are routinely subjected to horrendous conditions of confinement, brutality at the hands of their jailers or other detainees, and other human rights violations.

Although these disgraceful conditions are pervasive and by no means isolated, the mainstream media and society in general steadfastly refuse to recognize and address this important social issue. These systemic problems of corruption and abuse go largely ignored and unchecked despite the fact that jails, by their very nature, are located in the heart of our cities and towns where the corporate media focus their attention, unlike prisons, which are usually located in rural areas far from the centers of media and political power.

A few examples of the types of abuses that are occurring in local jails across the country are described below. Whether in a small town or a large city, the incidents all stem from either bureaucratic corruption ...

From the Editor

PLN frequently reports on litigation and news arising from jails. This month's cover story, America's Jails: The Dungeons of the New Millenium , takes a broad look at the problems afflicting American jails: brutality, overcrowding, medical neglect, corruption, sexual assaults, etc. In many respects jails are like prisons, but there are important distinctions. Virtually every county in America has a jail--a jail that local media dutifully ignore for the most part until prisoners start being hauled out in body bags.

With a half million prisoners in jail at any given time, and millions of people cycling through them each year, jails are huge players in the criminal justice system. Mostly funded at the local level, jails typically consume huge portions of local budgets with little critical examination by anybody. The cover story may seem geographically diverse and the problems dissimilar but we hope to make the point that the problems in American jails, which have been well documented for decades by assorted authors, investigative commissions, and extensive litigation, have, if anything, become worse.

We have made some important changes at PLN 's office in recent months. First, we have upgraded our office technology with new computers and software to ...

The Connally Seven - A Texas Prison Escape and its Aftermath

The John B. Connally State Prison is a 2,800-capacity maximum security facility for men. As part of Texas' $2 billion prison building frenzy of the 1990's, construction of the so-called "Michael prototype" unit was completed in 1994; the first prisoners arrived in the summer of 1995.

Located in rural Karnes County about 50 miles southeast of San Antonio, the prison brought 743 low-paying jobs to the area, including slots for about 550 prison guards. Annual starting salary for a Texas prison guard is just under $19,000; and raises are typically small and infrequent. As a result, most Texas prisons are dangerously understaffed.

It was not surprising, then, that on December 13, 2000, only 96 guards showed up to fill the 127 positions allocated for the 12-hour day shift at the Connally prison, nor was it surprising that shortly after lunch on that day, seven minimum custody prisoners took advantage of the short staffing and other flaws in the security system to liberate themselves.

During the next 6 weeks, the Connally Seven robbed a Radio Shack store near Houston, as well as a sporting goods store near Dallas where they fatally shot a policeman. They changed their appearances ...

Not Part of my Sentence: The Rape of Washington Prisoners

Gig Harbor, Wash.: Annette Guzman-White, a 32-year-old minimum-security prisoner incarcerated on a second-degree burglary charge at the Washington Correction Center for Women (WCCW), is eager to get out of prison.

It's something that could probably be said of most of Washington's 15,000 prisoners, just slightly over 1 ...

The Cost of Running Washington's Rape Camps

As the accompanying article, Not Part of My Sentence , makes clear, the sexual abuse of female prisoners by male prison employees is an endemic problem. As past issues of PLN show, this problem is not confined to any single state or prison system, but is national in scope.

Surprisingly, given ...

Male Prisoner Settles Guard Rape Suit for $6,000

On November 22, 2000, Raymond Holmes, a Washington state prisoner, settled a civil rights suit against Washington prison employees. In 1997_98, while imprisoned at the Washington State Penitentiary (WSP) in Walla Walla, Holmes was repeatedly forced to perform nonconsensual sexual acts with Anita Hernandez, a guard at the prison. Hernandez ...

Qualified Immunity Denied in Washington Rape of Transsexual Prisoner

The Ninth Circuit Court of Appeals has denied a Washington guard's claim of qualified immunity in sexually assaulting a transsexual prisoner. The Court also held the protection afforded by the Gender Motivated Violence Act (GMVA) extends to transsexuals, but upheld qualified immunity for the GMVA claims. The GMVA's civil remedies were subsequently declared unconstitutional by the Supreme Court.

In June of 1993, Douglas (Crystal Marie) Schwenk, a preoperative male-to-female transsexual who has assumed a female gender role, was incarcerated in the Washington State Penitentiary at Walla Walla. In September of 1994, Schwenk was transferred to the medium security Baker Unit where Robert Mitchell, a guard, "subjected her to an escalating series of unwelcome sexual advances and harassment that culminated in sexual assault." Mitchell began with winking, imitating oral sex, and making obscene and threatening comments. He also watched Schwenk in the shower while rubbing his crotch. Mitchell repeatedly demanded sex from Schwenk, offering makeup and other "girl stuff" in exchange for sex. Schwenk refused but Mitchell persisted, groping Schwenk's buttocks. Mitchell told Schwenk that he had sex with a former prisoner and "planned to have sex with his neighbor's young son." Schwenk became terrified.

This abuse ...

Jury Awards $5,000 to Beaten Texas Prisoner

A federal court in Texas has upheld a jury award of $5,000 to a prisoner who was beaten by a guard, denying the guard's motion for judgment as a matter of law.

Daniel Glenn Ostrander, a Texas state prisoner, filed suit against Gary Boles and David Bergeron, guards ...

BOP Lieutenant Pleads Guilty to Brutality Charges

In an ongoing criminal investigation, the Department of Justice, Office of Inspector General, is continuing its probe into allegations of obstruction of justice and other civil rights violations at the federal prison in Beaumont, Texas. The investigation took a dramatic leap forward when Bryan Small, a 34-year-old lieutenant at the Beaumont unit, pleaded guilty to conspiracy to obstruct justice on Tuesday, February 13, 2001.

Small, who worked as a supervisor, "did knowingly and willfully conspire and agree together with other persons both known and unknown, to commit an offense against the United states," according to the U. S. Attorney Charges filed in the U.S. District Court for the Eastern District of Texas_Beaumont Division on Monday, February 12, 2001.

"On or about May 10, 1999, defendant Bryan Small spoke to Correctional Officers Robert Townley and Jabali Yuman about what false story they could use to cover up Townley and Yuman's unlawful assault on inmates Keith Jacocks and Dwayne Owens," continued the U.S. Attorney Charges. However, the court documents did not give the date of the unlawful assault on Jacocks and Owens.

Small faces a maximum of five years in prison and a fine of $250,000. The ten ...

Malicious Use of Force Violates Eighth Amendment

The Third Circuit held that in claims alleging the malicious use of force by prison guards the wantonness of the attack, rather than the degree of injury suffered, is the dispositive issue for courts reviewing such claims on summary judgment.

Pennsylvania state prisoner Alan Brooks filed suit claiming that prison guards terminated an approved phone call to his attorney by rushing him and repeatedly punching him in the head, slamming him into a wall, threatening him and choking himalmost rendering him unconsciousall while he was handcuffed to a waist chain. The only actual injuries Brooks suffered, however, were abrasions and scratches on his neck and hands.

Relying on the analysis in Norman v. Taylor , 25 F.3d 1259 (4th Cir. 1994)(en banc) of the U.S. Supreme Court's ruling in Hudson v. McMillian , 503 U. S. 1, 112 S.Ct. 995 (1992), the District Court ruled that since the injuries were de minimis , that alone was conclusive proof that only de minimis force was used in the attack. In doing so, the Court did not follow the Fed.R.Civ.P. 56(e) standard for summary judgment, which is not to rule on the evidence itself, but only ...

Damages in Denial of Exercise Suit Reversed

The Seventh Circuit Court of Appeals, in a harshly worded opinion, reversed an Illinois federal district court judgment that a one-year loss of yard privileges suffered by a prisoner in disciplinary segregation was cruel and unusual punishment.

Alex Pearson is a prisoner at the Stateville Correctional Center (SCC) in Illinois ...

Use of Restraint Chair Not Cruel and Unusual Punishment

The Court of Appeals for the Third Circuit has affirmed a lower court's grant of summary judgment and denial of a motion for judgment as a matter of law on an excessive force claim brought by a convicted prisoner awaiting sentencing in a county jail. The excessive force claim arose from a prisoner being strapped into a restraint chair for an eight hour period.

Luis Fuentes was a jail detainee in Pennsylvania who had pled guilty to federal drug charges but was awaiting sentencing. While confined in the Berks County Prison behavioral adjustment unit, Fuentes repeatedly kicked his cell door to get the guard's attention after another prisoner urinated on Fuentes' cell door. Fuentes' cell was stripped and a struggle ensued where Fuentes claimed he was manacled, taken down, and beaten. Fuentes was then shackled and taken to the "Pro-straint Violent Prison Chair" into which he was forced to remain strapped for eight hours. He was allowed to stretch and use the bathroom every two hours and was also allowed a meal.

Fuentes brought an action pursuant to 42 U.S.C. §1983 claiming use of excessive force constituting cruel and unusual punishment under the Eighth Amendment, violations ...

Chinese Company Convicted of Using Forced Prison Labor

On February 28, 2001, Peter Chen, a Taiwanese entrepreneur, pled guilty in a New Jersey federal district court to charges of selling goods in the U.S. which were produced by forced prison labor. Chen will pay a $50,000 fine.

Chen owned Allied International Manufacturing Stationery Co., Ltd. (AIMCO), of Nanjing, China, which is the first Chinese company so convicted in the U.S. Companies from the former Soviet Union, Mexico, and Japan, as well as U.S. companies importing such goods, have previously been convicted.

AIMCO sold document binding clips which were assembled by Chinese women prisoners. The women were forced to work long hours, sometimes until their fingers bled, without being paid for their labor. As a result, Chen was able to undercut competitors' prices when he sold the clips in the U.S.

Peter B. Levy, a disgruntled competitor, discovered that AIMCO's clips were produced by forced prison labor and tipped U.S. Customs officials, who seized shipments of the clips in several U.S. cities. Twenty-four million of them were destroyed, and Chen was criminally charged.

AIMCO began using forced prison labor in 1995 after its primary U.S. customer, Officemate International Corp., pressured ...

The Prison Payoff: The Role of Politics & Private Prisons in the Incarceration Boom

by Brigette Sarabi and Edwin Bender

The popularity of the term "prison-industrial complex" in recent years, and especially since the groundbreaking Critical Resistance conference in Berkeley in September 1998, has produced a few critics who wonder if "prison-industrial complex" is an accurate description of today's prison/policing/judicial apparatuses.

The debate centers on whether analogies to the military-industrial complex are useful. Some argue that the MIC is so much larger, both in real dollars and as a percentage of the GDP, that the PIC pales in comparison. Others point out that those MIC expenditures paid for a standing army, bases around the world, a huge research and development budget which allowed for the post-WWII expansion of U.S. higher education and spun off hundreds of non-military industries, and industries for aircraft and computers which employed tens of thousands of high-paid engineers and unionized assembly workers. The PIC, in comparison, generates relatively little economic activity outside the prisons themselves.

But for all those differences, it appears that the MIC and PIC do have at least one thing in common: a breakneck expansion fueled by private corporations and public bureaucracies intent on growth. And growth for the PIC has meant more ...

PLN Wins Nevada Censorship Suit

Beginning in January 2000, the Nevada Division of Prisons (DOP) began censoring Prison Legal News in all of its prisons, affecting 21 Nevada prisoners who subscribed to PLN .Prison Legal News was never afforded any notice of the censorship nor given an opportunity to appeal. Eventually prison officials told PLN ...

California State Prisoner's Handbook

by Steven Fama, et. al.

Subtitled a "Comprehensive Practice Manual" for California prisoners, the new 3rd edition of the California State Prisoners Handbook easily lives up to its billing. Covering in detail all aspects of California prisoners' interaction with the "correctional experience" from reception to parole, this 900 page soft-back volume is the state prisoner's single most important reference book to own and study.

Although written especially for California state prisoners, it is also an invaluable reference for attorneys practicing criminal law. The authors, from the venerable Prison Law Office operating near San Quentin Prison, have themselves "been down" for over 20 yearswhen they produced the 1st edition. These seasoned litigators, who are personally responsible for many of the successful published cases they now cite, offer the wisdom that only comes from having lived in the trenches of prison law, coupled with well-developed skills of communicating complex legal issues with non-legally trained convicts who typify California's 160,000 prisoners and 100,000 parolees.

Written in straightforward language, not in "legalese," each chapter stands alone, ready to help solve a unique problem such as prisoners' rights, administrative regulations, prisoner appeals, time credits, and disciplinary proceedings. Other chapters cover holds ...

Sanction Excessive When It Excludes Medical Expert's Testimony

The Court of Appeals for the Seventh Circuit has held that a discovery sanction is excessive when it causes the dismissal of a prisoner's suit by excluding expert medical testimony. The Court also held that dismissing a claim for failure to file an adequate physician's certificate of merit was an abuse of the District Court's discretion. Finally, it found that disputed factual issues precluded the awarding of summary judgment.

David Sherrod, an Illinois state prisoner, developed severe abdominal pain. A nurse saw him and gave him an enema which failed to relieve the pain. The nurse refused to send him to a hospital, but admitted him to the prison's health unit for observation. Sherrod's pain worsened and included pain in the lower right quadrant, pain on palpitation, and pain with eating or movingclassic signs of appendicitis. Several times prison medical staff noted "rule out appendicitis" in Sherrod's chart.

During his entire time in the prison's health unit, Sherrod was never examined by a doctor. Four days after having been admitted to the health unit, and despite continuing pain, Sherrod was sent back to his cell. A doctor came by his cell two days ...

Administrative Exhaustion Not Jurisdictional

The Eighth Circuit Court of Appeals held that under the Prison Litigation Reform Act of 1996 (PLRA), a federal court is not deprived of jurisdiction to hear a prisoner's civil rights complaint under 42 U.S.C. § 1983 if he has not first exhausted administrative remedies. In so doing, the Eighth Circuit joined the Third, Seventh, Ninth and Tenth Circuits.

Ronald Chelette was a prisoner in the Jefferson County Jail (operated by the Arkansas Department of Corrections). After injuring his wrist in an altercation with another prisoner, Chelette alerted Warden Grant Harris that he was experiencing continuing pain and requested medical care. In a subsequent lawsuit filed under 42 U.S.C. § 1983, Chelette complained that despite Harris' assurances that the problem would be taken care of, he received inadequate medical care.

In filling out his standardized § 1983 complaint form, Chelette was presented with the question, "Did you present the facts relating to your complaint in the state prisoner grievance procedure?" Chelette answered by checking the box, "No." He added the explanation, "Because Warden Harris stated he would take care of the matter."

The U.S. District Court for the Eastern District of Arkansas found that although Chelette "likely ...

Federal Appellate Rule 4(a)(6) Trumps Civil Rule 60(b)

The Tenth Circuit Court of Appeals has ruled that Federal Rule of Appellate Procedure (FRAP) 4(a)(6) trumps Federal Rule of Civil Procedure (FRCP) 60(b).

Ernest Clark, a federal prisoner, filed suit in the U.S. District Court of Colorado. Before his case was decided, the Bureau of Prisons (BOP) transferred him to various prisons, ultimately placing him in federal prison in Milan, Michigan. Clark's case was dismissed and notice sent to his last prison, but the notice was never forwarded by BOP. About eight months later, Clark finally discovered the dismissal and moved for relief under FRCP 60(b). The District Court denied relief, and Clark appealed.

The government's position was that FRAP 4(a)(6) contains mandatory language governing timely reopening of an appeal and cited the notice provision of FRCP 77(d) as support. Taken together, FRAP 4(a)(6) and FRCP 77(d) show that a plaintiff cannot escape the time limits of FRAP 4(a)(6) through FRCP 60(b). Clark, through court-appointed counsel, argued that FRCP 60(b) is an "extraordinary procedure" through which courts have "equitable power to do justice in a particular case." Counsel argued that pro se ...

Diabetic Prisoner's Deliberate Indifference Claim to Proceed to Trial

A federal district court in Alabama held that a diabetic pretrial detainee's medical neglect claim required a trial to resolve, overruling the defendants' motion for summary judgment. Wendi Flowers, a severe diabetic, was arrested and booked in the St. Clair County Jail, Pell City, Alabama, on April 9, 1998. On admission to jail, Flowers informed a guard and the jail's nurse that she was a severe diabetic and prone to coma if not given insulin. The conversational particulars are disputed, but reports were passed to the defendants, who ordered Flowers placed on "medical watch." The nurse offered Flowers an injection of the jail's insulin supply, but Flowers refused it as being of the wrong type. Flowers also refused an opportunity to call her parents to get her insulin, because of her embarrassment. Flowers eventually lapsed into diabetic ketoacidosis due to a lack of insulin and was hospitalized.

Flowers sued Jail Captain Tom Bennett and Chief Jailer E.A. Stevens, under 42 U.S.C. §1983, alleging deliberate indifference to a serious medical need. The defendants moved for summary judgment claiming lack of deliberate indifference and qualified immunity. The Court analyzed the parties' arguments and concluded that all ...

Denial of Interest Does Not Violate Takings Clause

The Fourth Circuit held that the denial of interest earned on prison trust accounts does not violate the Takings Clause of the Fifth Amendment.

Virginia prisoner William Washlefske earns an average of $108.76 each month from prison labor. That money is credited to his "spend account." He also maintains a $25 standing balance in his "hold account" which is maintained to provide him a discharge allowance. These accounts are created and maintained pursuant to Virginia statutes and regulations. Prisoners may use their funds to purchase items from the canteen or approved outside sources. They may also have the funds sent outside the prison to be invested into interest-bearing accounts.

The funds in all prisoner "spend" and "hold" accounts are pooled and, by statute, those amounts that are not needed to meet the immediate requests of prisoners are invested at the discretion of the Director of Corrections. Income earned in the pooled account may be used by the Director for the benefit of the prisoners under his care.

Washlefske brought suit alleging that the State's use of interest income without just compensation violates the Takings Clause. On cross motions for summary judgment, the District Court entered judgment in favor ...

Ohio ACLU Challenges Supermax

The ACLU has filed a class-action suit in federal court in Cleveland, Ohio, under 42 U.S.C. § 1983 challenging the conditions of confinement at Ohio's supermax prison in Youngstown. The lawsuit alleges that conditions at Ohio State Penitentiary (OSP) constitute cruel and unusual punishment, violating both the United States Constitution, the International Covenant on Civil and Political Rights, and the United Nations Standard Minimum Rules for the Treatment of Prisoners. The complaint seeks only injunctive and declaratory relief.

"This is a hellhole by design," said Raymond Vasvari, legal director of the ACLU of Ohio. "This is a brand-spanking new prison that was created to break the will and human spirit of men."

OSP was built in 1998 at the cost of $65 million to house Ohio's worst felons, including some on death row. However, according to the ACLU's complaint, the prison administration has been more concerned with keeping the supermax full than making sure that the "worst felons" are the ones incarcerated at OSP. The complaint notes that Ohio's Correctional Institution Inspection Committee (CIIC) inspected OSP in November 1999, and found that less than half the prisoners incarcerated there clearly met Ohio's supermax guidelines ...

The Prison Activist Resource Center: It's About Sharing Resources and Working Collectively

The Prison Activist Resource Center: It's about Sharing Resources and Working Collectively

"We all need energetic people to spark us," says Vanessa Agard-Jones, the coordinator for the Prison Activist Resource Center (PARC) located in Berkeley/Oakland, California. But, more importantly, she points out, "People trying to build this movement need to learn how to work together, collectively, so that we can provide a model for community groups."

And, looking at the success and growth of PARC's outreach nation-wide, it is clear that the collective spirit and struggle is alive and well.

Camped out in a small office, in the midst of computers, posters, and piles of paper and files, are PARC's dedicated staff, interns and volunteers. For hours each day they prepare and coordinate resources, including their well-known and well-used, Resource Directory . Their goal is to link communities of prisoners, their families, organizations, and activists/organizers throughout the country.

Founded in 1994 by Eli Rosenblatt, PARC has grown to dozens of people who teach classes in schools and provide curriculum programs for teachers; organize art and cultural programs; and research and prepare fact sheets and educational materials covering such topics as the prison-industrial-complex and immigration detention centers ...

Sixth Circuit Upholds PLRA Attorneys' Fees Cap

The Sixth Circuit Court of Appeals has ruled that the cap on attorneys' fees imposed by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d)(3), does not violate the equal protection provision of the Fifth Amendment to the U.S. Constitution.

This case, which has been extensively reported in PLN , involves a long-standing class-action civil rights suit, brought under 42 U.S.C. § 1983, by Michigan state prisoners, challenging their conditions of confinement. The suit was filed and judgment entered long before the enactment of the PLRA in 1996. The prisoners were successful in the suit and received extensive injunctive relief in a consent decree. The plaintiffs' attorneys filed a motion for award of attorneys' fees, pursuant to 42 U.S.C. §1988, for post-judgment compliance monitoring.

The District Court awarded attorneys' fees, but capped the award at 150% of the statutory hourly amount paid court-appointed attorneys in federal criminal casesin this case, $112.50. The plaintiffs objected, alleging that the attorneys' fees cap violated their equal protection rights. The District Court overruled the objections and plaintiffs appealed.

The Sixth Circuit noted that plaintiffs had not claimed that the equal protection issue involved a fundamental right ...

News in Brief

Canada: On July 16, 2001, at least 31 prisoners at the maximum security Atlantic Institution rioted. After ransacking the canteen, breaking through walls and refusing to return to their cells, the protest ended July 19, 2001. Media accounts did not state the cause of the uprising. The prison riot is the second one in a month. There were also two riots in January, 2000.

FL: In May, 2001, the Florida Department of Corrections announced it would eliminate typewriters and word processors from all prison law libraries. Prison officials claimed eliminating the devices would save $50,000 a year in repair and upkeep costs. Prisoner advocates see the move as one more step to restrict court access for prisoners, noting that handwritten pleadings tend to be taken less seriously than typed pleadings.

Greece: On August 1, 2001, Yannis Georgakapoulis, the nation's police chief, resigned after Constantine Passaris, the nation's most wanted fugitive, got away from dozens of police who had surrounded Passaris' apartment in Athens. Passaris has been the subject of a huge manhunt after he escaped from jail in February, 2001, by killing two policemen who had taken him to a hospital.

Iran: On May 20, 2001, an ...


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