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Prisoner Education Guide

Prison Legal News: December, 2001

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Volume 12, Number 12

In this issue:

  1. Telemarketing and Computer Programs Crash at Utah Prison (p 1)
  2. Use of Force, Religious Diet Claims Set for Trial (p 3)
  3. From the Editor (p 4)
  4. Sixth Circuit Rules PLRA Attorneys' Fees Cap Provisions Not Unconstitutional (p 5)
  5. Administrative Remedies Need Not Identify Wrongdoers (p 6)
  6. New Missouri Mega-Prison Mothballed (p 6)
  7. Connecticut and Florida Change Felon Disenfranchisement Laws (p 7)
  8. Staff Shortage in Nation's Prisons (p 8)
  9. Excessive Force Claims Not Subject to Exhaustion; Supreme Court Grants Review (p 9)
  10. Two Studies Criticize Texas Department of Criminal Justice (p 10)
  11. Prison Guard Sentenced in Escape Plot (p 10)
  12. Jury Awards Imprisoned KKK Member $55,000 in Texas Jail Beating (p 11)
  13. Texas Jury Awards $70,000 in Prison Stabbing (p 11)
  14. Rape Rarely Prosecuted in Texas Prisons (p 12)
  15. Prisoners Stage Sit Down at CCA Run New Mexico Prison (p 13)
  16. Arizona CCA Prison Found 'In Turmoil' (p 14)
  17. $1.5 Million Awarded in CDC Medical Neglect Suit (p 15)
  18. $100,000 Awarded in Arizona Medical Indifference Case (p 15)
  19. Washington Enacts Sweeping New Sentencing Laws, Creates Parole Board for Sex Offenders (p 16)
  20. Medical Monitoring Suit Settled for $675,000 (p 18)
  21. Oregon Radiation Suit Settled for $1.5 Million (p 19)
  22. Washington Supreme Court Rules Imprisoned Children Entitled to Education (p 20)
  23. Habeas Hints: AEDPA Update 2001 (p 21)
  24. New York DOCS Settles Welfare Suit; Bans Welfare for Work Release Prisoners (p 23)
  25. U.S. Supreme Court Holds Violation of IAD's Anti-Shuttling Provisions Requires Dismissal (p 24)
  26. Failure to Sign Notice of Appeal Not Jurisdictional (p 25)
  27. ADA Claims Against State Cannot Proceed in Federal Court (p 25)
  28. Supreme Court Eliminates "Catalyst Theory" Fee Awards (p 26)
  29. Florida DOC Clears Itself of Racism Charges (p 27)
  30. Race-Based Religious Policy Unconstitutional (p 27)
  31. Family of BOP Prisoner Awarded $1.1 Million in Wrongful Death Suit (p 28)
  32. PLRA Bars Mental and Emotional Damages for Asbestos Exposure (p 29)
  33. News in Brief (p 30)
  34. Denial of Treatment for Two Hours Defeats Qualified Immunity (p 32)
  35. Arizona Supreme Court Upholds Application of Gate Money Amendments (p 32)

Telemarketing and Computer Programs Crash at Utah Prison

"Hi, how are you doing? I am fine. My name is David ... If you will be willing to go out with me, will you answer these questions honestly as to what you will be willing to do with me ... holding hands, french kissing, fondling each other ..." and more explicit sexual suggestions.

These lines were part of a letter written in February 2000 by Utah prisoner David Hunsaker, a convicted forger, to a 15-yearold girl he'd never met. Hunsaker obtained the Utah teen's name and address from another prisoner who had talked with her while both prisoners worked as telemarketers for Utah Correctional Industries, the lucrative arm of the Utah prison system. The girl's mother intercepted Hunsaker's letter and sent it to Utah Attorney General Jan Graham.

On April 13, 2000, while Graham was investigating, Utah prisoner Michael Moore, 43, was found dead in his cell, an apparent suicide. Moore, a software designer who had earned two college degrees while in prison, was under investigation for his part in an alleged UCI computer security breach at Utah's Point of the Mountain State Prison at Draper. The UCI computer security breach was apparently unrelated to the UCI ...

Use of Force, Religious Diet Claims Set for Trial

A New York prisoner's 42 U.S.C. § 1983 lawsuit on First and Eighth Amendment violations survived three out of four summary judgment challenges by prison officials and moved closer to trial.

On September 5, 1996, Abdul Majid, a prisoner at Sullivan Correctional Facility, was passing through a security checkpoint when Carol Behrens, a prison guard, confiscated his newspaper. Sgt. Tim Cherry, who was standing nearby, inexplicably became enraged and grabbed Majid by the arm and neck. An alarm was sounded, more guards arrived at the checkpoint, and Cherry directed the guards to throw Majid to the ground. Cherry joined the assault, and Majid suffered painful injuries to his knee.

Thereafter, Majid was sentenced to four months confinement in Sullivan's Special Housing Unit (SHU). While in the SHU, Majid requested Deputy Superintendent Wayne Wilhelm to provide him with meals that complied with his Muslim dietary laws. Wilhelm denied the request.

Majid then brought suit complaining of cruel and unusual punishment at the checkpoint incident, the newspaper confiscation, and denial of the religious diet. Prison officials sought summary judgment on all three claims as well as qualified immunity.

First, Majid's claims of excessive force were nothing more than ...

From the Editor

Some readers have recently contacted PLN after letters they sent to our Seattle address were returned to them by the post office marked "undeliverable as addressed." PLN 's address has not changed. Inquiries with the post office have not been very helpful. Postal officials have told us that the mail situation has been hectic since September 11, and have left it at that. If any mail you sent to PLN has been returned for any reason, send it again or contact us by phone, fax or email.

Starting in late August of this year, a number of PLN subscribers have received letters from former contributing writer Dan Pens making a variety of outrageous allegations against me and other PLN board members. Dan's letters are the culmination of a five month attempt on his part to extort $2,500 from PLN . When his blackmail demands were not met, he carried through on his threats to slander me and other PLN board members.

In February, 2001, Fred Markham, PLN 's former office manager, disappeared after stealing most of PLN 's money, destroying PLN 's financial records, turning off our phones and stealing one final delivery of mail. [See April, 2001, PLN ...

Sixth Circuit Rules PLRA Attorneys' Fees Cap Provisions Not Unconstitutional

Two District Court Rulings Overturned

The Court of Appeals for the Sixth Circuit has overruled two federal magistrates, both of whom, in separate decisions, had previously held that the statutory limitatons on attorneys' fees in prisoner civil rights actions violate the implied equal protection component of the Due Process Clause ...

Administrative Remedies Need Not Identify Wrongdoers

The Court of Appeals for the Eleventh Circuit has held that prisoners do not need to identify those persons directly involved in the alleged deprivations in their administrative remedies to satisfy the exhaustion requirement of 42 U.S.C. § 1997(e)a.

Prisoner Raymond Brown filed a 42 U.S.C. § 1983 action and named as defendant the warden of his prison, Johnny Sikes, the Commissioner of the Georgia Department of Corrections, Wayne Garner, and "Doe(s) of Doe Medical Company." Brown's suit alleged that the unknown defendants had failed to comply with a doctor's order of providing him an athletic supporter and snacks that had been prescribed for treatment of his hernia. The district court entered an order of dismissal because Brown's grievances did not name the defendants he sued.

On appeal, Brown argued he sued Sikes and Garner only because as high ranking prison officials they are in a position to identify the individuals who are responsible to provide him the medical care ordered. The Court of Appeals held this a plausible explanation, holding that 42 U.S.C. § 1997(e)(a) "requires a prisoner to provide in his administrative grievance as much relevant information ...

New Missouri Mega-Prison Mothballed

What if they built a prison and nobody came? It's every prison abolitionist's dream come true. Such a reality has unfolded, even if only temporarily, in the rural Missouri community of Bonne Terre.

The economic history of Bonne Terre is a familiar one, which has played out in many communities nationwide. Declining and on the verge of obscurity, the former lead mining town was in search of a miracle to reverse over a halfcentury of economic decline. Then the State of Missouri announced that it would provide economic salvation to the people of Bonne Terre by making the town home for the state's largest and costliest prison.

The hills were leveled, the valleys raised, and a dozen underground springs were diverted to transform a hay pasture into a prison the size of 50 city blocks. But today, over six years after the grand announcement that the prison would be built, the $168 million facility has no prisoners and no opening date. The town is in debt, and new businesses that had hoped to serve the prison's work force are nearly broke. The good folks of Bonne Terre are learning that pinning your hopes for economic prosperity ...

Connecticut and Florida Change Felon Disenfranchisement Laws

Connecticut and Florida take different approaches as they address the disenfranchisement of convicted felons. In Connecticut, state lawmakers, after intense debate and much legislative maneuvering, passed a bill that gives back the right to vote to convicted felons on probation. In a much different process, Florida Governor Jeb Bush and the state's elected Cabinet made a rule change making it easier for some felons to regain their right to vote. In both states, advocates of suffrage for felons say that the disenfranchisement of felons affects communities of color and poor people disproportionately.

"As long as a citizen is subject to the pain of taxes, it would follow that they should have a right to vote," said Connecticut State Senator Eric D. Coleman, DBloomfield.

On May 18, 2001, Connecticut's Governor John Rowland signed into law the bill that gives convicted felons released on probation the right to vote for the first time in state history. The measure, which goes into effect in January 2002, will return the right to vote to some 37,000-felony probationers. Coleman said, "Entire communities are disenfranchised" under the existing law.

Senator Toni N. Harp, DNew Haven, said enforcement of the existing law is confused ...

Staff Shortage in Nation's Prisons

Across the nation, states are plagued by a shortage of prison guards. A decade of building prisons has created an industry that employs more people than General Electric, and costs taxpayers in excess of $40 billion a year. To fill the shortage Kansas recently lowered the age requirements for prison guards from 21 to 19. Alabama lowered its minimum age to 20, but is still short 412 guards. After losing 57 percent of last year's recruits, Oklahoma is considering lowering the minimum age from 21 to 18. Corrections spokesman John Hamm noted that while the state hired 180 guards last year 240 quit. Arkansas had a turnover rate of 42 percent.

Some experts question the wisdom of lowering age requirements. "You'd be hard pressed to find much support in the community for hiring 19-year-olds," says Kenny Wild, a state representative from Kansas. George Camp, co-president of the Criminal Justice Institute says, "Every state is really being affected in one way or another." He cites low wages and proximity to the workplace as two key factors responsible for the shortage.

Oklahoma is struggling against a 20 percent vacancy, and overtime pay has gone through the roof. But the $16 ...

Excessive Force Claims Not Subject to Exhaustion; Supreme Court Grants Review

The United States Court of Appeals for the Second Circuit held that the exhaustion requirement of the Prison Litigation Reform Act (PLRA) does not apply to assault and excessive force claims.

Connecticut state prisoner Ronald Nussle brought a civil rights action against two guards, alleging that they violated his constitutional rights when they harassed, intimidated and assaulted him.

Prison officials moved to dismiss the complaint arguing that Nussle had failed to exhaust administrative remedies as required by the PLRA. The District Court granted the motion and Nussle appealed.

The Court of Appeals explained that Nussle's claims should not be subject to the PLRA's exhaustion requirement unless "particular incidents of assault or the use of excessive force" constitute "prison conditions" within the meaning of 42 U.S.C. § 1997e(a).

After an extensive analysis of the text and context of § 1997e(a) and the structure, purpose, and legislative history of the PLRA, the Court concluded that assault and excessive force claims are not claims related to prison conditions. Therefore, the Court concluded, "exhaustion of administrative remedies is not required for claims of assault or excessive force brought under § 1983."

The Eleventh Circuit, however, has reached the opposite conclusion in ...

Two Studies Criticize Texas Department of Criminal Justice

Two independent studies, one by the Institute on Crime, Justice, and Corrections, the other by Security Response Technologies, indicate that the Texas Department of Criminal Justice (TDCJ) needs stricter guidelines in assigning prisoners to housing areas and work details. Both reports follow in the wake of the escape of seven prisoners from the Connally Unit in South Texas.

The group, often referred to as the "Connally Seven", made headlines worldwide with their daring daylight escape. The seven escapees outsmarted and overpowered more than a dozen state employees and managed to seize 16 weapons, hundreds of rounds of ammunition, and a truck during their getaway. After remaining at large for a month and a half the seven were eventually cornered in Colorado by law enforcement officials. Six were recaptured and returned to custody. The seventh chose to commit suicide rather than return to prison. Each of the escapees were serving extremely long sentences, for crimes which included murder, rape, and armed robbery. [See: PLN , Sept. 2001.]

The Institute on Crime, Justice, and Corrections concluded in its report that custody levels for prisoners should take into consideration the nature of their current offense and their prior criminal history. The current method for ...

Prison Guard Sentenced in Escape Plot

Erik Jacobs, 31, a former guard at Ely State Prison in Nevada was sentenced to one year in jail and fined $2,000 for helping a prisoner plan an escape. Jacobs was sentenced in March, 2001, by White Pine District Judge Dan Papez in Ely, a small, rural town some 320 miles east of Reno. The guard worked at the prison three years before being arrested last September. Jacobs was initially charged with five counts of supplying a weapon or simulated weapon to a prisoner and two counts of aiding in the escape plot.

The former guard was charged with one gross misdemeanor count of aiding a prisoner in escape. Jacobs entered an Alford plea, a special pleading that does not admit guilt, but does acknowledge that the prosecution has sufficient evidence to obtain a conviction. Such pleas have the same legal effect as a guilty plea for sentencing purposes.

Deputy Attorney General Kevin Briggs said Jacobs supplied David "Bang Bang" Wayne with security seals for his razor. The strips of material are placed on the back of radios and televisions by prison staff to prevent prisoners from hiding contraband inside the appliance. The security seals can't be taken ...

Jury Awards Imprisoned KKK Member $55,000 in Texas Jail Beating

On July 19, 2000, a federal jury in Houston, Texas, awarded a Ku Klux Klan member damages totaling $55,000 after he was beaten by black prisoners with whom he was forced to share a cell.

Larry Webster, 42, was arrested in November 1993 on charges of kidnapping and robbery ...

Texas Jury Awards $70,000 in Prison Stabbing

In May 2001, a federal court jury in Corpus Christi, Texas, held three Texas prison officials responsible for a 1997 attack during which a prisoner at the McConnell Unit was stabbed about a dozen times by another prisoner who had escaped from his locked cell. The jury assessed $70,000 ...

Rape Rarely Prosecuted in Texas Prisons

According to recent reports, rape in Texas' prisons is the highest in the nation. Based on research from 19952000, of the 660 cases reported barely 4 percent have been prosecuted. Why does the state that prides itself on having the highest per capita prison population in the nation have such a dismal record for prosecuting prison rape? According to human rights advocate Joanne Mariner, "there is no political advantage to seeing that these cases get resolved." She goes on to say that the public has little "sympathy for (raped prisoners)."

Even Gina DeBottis, chief of the Special Prosecution Unit for handling prison cases concedes that there is a problem. "[Prosecutions] are low, I admit they're low," she said. "I do find it problematic." But DeBottis blames the problem on weak evidence provided by prison investigators.

John Moriarty, Inspector General for the Texas Department of Criminal Justice (TDCJ) theorizes that in this "city of 150,000 convicted felons" it is difficult to find witnesses and obtain evidence. However, his analogy does not hold up because the entire population of Texas prisoners is not located in one "city" as he suggests, but is actually scattered throughout over a hundred individual, and ...

Prisoners Stage Sit Down at CCA Run New Mexico Prison

Over 650 prisoners engaged in an apparently spontaneous protest at a Federal prison in New Mexico. On Monday, April 13, 2001, prisoners at the Cibola County Correctional Center congregated in the recreation yard and refused to leave. The assembly began as usual at 7:45 a.m., but at 8:00, when the call-out for work and school began, no one budged. They remained in the yard until 9:30 P.M. when they were forcibly removed. The Cibola facility is one of several federal prisons operated by the Correctional Corporation of America, a private prison conglomerate with facilities worldwide.

A special response team, composed of members from the Federal Bureau of Prisons and the New Mexico Sheriff's department, was called to the scene. For 10 minutes, members of the combined task force bombarded unresisting prisoners with tear gas. After subduing them, guards proceeded to handcuff each of the prisoners.

No guards or prisoners were reported injured. Steve Owen, Director of Marketing for CCA, said the prisoners involved were peaceful and nonviolent. Captain Thomas of the State Police said, "The special response team tear gassed inmates because they were not complying with orders to lie down. & All day long they were not complying with anything. ...We finally had to do something," he said.

Neither was director Owen aware of what might have caused the protest. His response is hauntingly familiar. In July 2000, fifteen guards and one prisoner were injured in a CCA run prison in Sayre, Oklahoma. [See: PLN , March 2001] The Sayre riot started over an alleged paper bag being passed between two prisoners. The contents of the bag was never determined and ultimately CCA officials were left scratching their heads, "trying to determine what happened."

Director Owen assured the press that "cooperative inmates" were being interviewed to determine the reason for the protest. "Over the next few days, we will conduct an in-depth incident debriefing and follow up to determine the cause and prevent future incidents," he said. But given the past track record of mainstream media, those causes will most likely remain shrouded in mystery; a disconcerting ...

Arizona CCA Prison Found 'In Turmoil'

Hawaii officials found a prison "in turmoil" while inspecting a Florence, Arizona prison where about 560 Hawaii prisoners are being warehoused. The prison is operated by Nashville based Corrections Corporation of America.

An inspection of the prison conducted in April 2001 by a team of two men and two women was unable to access all areas of the prison because of the potential for violence, according to state reports obtained by the Honolulu Advertiser . The April report stated that tours of the prisoner housing units, recreational areas, prison industries facilities, prisoner work programs, library, visitation area, and chaplain's area were not conducted "due to the hostile environment in the prison."

The desert prison, located 45 miles southeast of Phoenix, was described in the April 30, 2001, report as a "facility in turmoil" with lax security conditions, widespread drug use, and domination by members of a prison gang known as the United Samoan Organization (USO). The USO was described in reports as Hawaii's first bona fide prison gang in nearly 20 years. Gang members were allegedly involved in attacks on prisoners and guards, drug trafficking, and having sex with female INS detainees held at the Florence prison.

Two Hawaii ...

$1.5 Million Awarded in CDC Medical Neglect Suit

$1.5 Million Awarded In CDC Medical Neglect Suit

In November 2000, a jury awarded the Estate of Mark Holton and Amanda Holton a total of $1.5 million in costs and damages, as well as $279,000 in attorneys' fees, in a civil rights action. Amanda Holton filed the ...

$100,000 Awarded in Arizona Medical Indifference Case

In January 2000, the Ninth Circuit Court of Appeals upheld a jury verdict awarding $100,000 to a former Arizona prisoner who was refused medical treatment while at the Maricopa County Jail.

In late 1994, Daniel Hawkins was arrested and booked into the Maricopa County Jail after police caught him ...

Washington Enacts Sweeping New Sentencing Laws, Creates Parole Board for Sex Offenders

Washington Governor Gary Locke recently signed into law the biggest changes to that state's sentencing laws since the Sentencing Reform Act of 1984 (SRA) was established. The Bill, known formally as Third Engrossed Substitute Senate Bill 6151, creates, among other things, a new parole board exclusively for sex offenders, and converts the current "determinate sentence" handed out by the judge into the sex offender's "minimum term," subject to release only with the assent of the parole board.

The new law also mandates the immediate creation of a new halfway house for civilly committed sex offenders on McNeil Island and declares itself to "preempt and supersede" any and all other laws or local regulations impeding its construction.

Until 1984, Washington had a sentencing scheme not unlike many other states. The judge would hand down the sentence after conviction, and then the prisoner would become subject to the jurisdiction of the parole board, or, as it is now known in Washington, the Indeterminate Sentence Review Board (ISRB). If released before the expiration of the imposed sentence, the convict would then be on parole, and would continue under the jurisdiction of the parole board until his/her sentence expired.

When the ...

Medical Monitoring Suit Settled for $675,000

Oregon State Prisoners' Class Action Victory

A class action lawsuit by Oregon prisoners involved in radiation experiments from 1963 to 1973 and still living as of December 31, 1997, who were not treated under Oregon's Medical Monitoring Statute (MMS) was settled for $675,000 in damages, attorneys' fees, costs ...

Oregon Radiation Suit Settled for $1.5 Million

On April 24, 2001, a class action lawsuit by Oregon prisoners who participated in radiation experiments from 1963 to 1973 was settled for $1,517,000 in damages, attorneys' fees, costs and expenses.

Sixty_seven prisoners at the Oregon State Penitentiary participated in experiments in which their testicles were irradiated to ...

Washington Supreme Court Rules Imprisoned Children Entitled to Education

In a case of first impression, the Washington Supreme Court has ruled that prisoners in Washington State under the age of eighteen have a fundamental right under the Washington State Constitution to an education while in prison. [See: Tunstall v. Bergeson , 141 Wn.2d 201, 5 P.3d 691 (2000), cert. denied , 121 S.Ct. 1356 (2001).]

In 1997, seven young prisoners sued the Department of Corrections and the Office of the Superintendent of Public Instruction for refusing to provide them, and other school-aged youth, any basic or special education services in prison. As one of the plaintiffs stated, the youth sought to continue their education while incarcerated in order to "turn around their lives."

In 1999, a state superior court agreed with the prisoners and ruled that a felony conviction does not eliminate the state's obligation to provide basic and special education to school-aged youth in Washington prisons. The trial court ordered state officials to provide basic and special education to youth in adult prisons in the same manner and under the same terms as provided to non-incarcerated school-aged youth. Washington state agencies, however, refused to accept the lower court's ruling and appealed this decision to the ...

Habeas Hints: AEDPA Update 2001

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.


What's New in 2001?

It's now been more than 5 years since the passage of the AEDPA, and at least by now almost all prisoners know there is a 1-year statute of limitations which requires the dismissal of any petition for federal habeas corpus filed after the time has been used up. On the other hand, the law keeps changing as to just how the statute of limitations is to be calculated. In this column we'll review key cases that have come down in 2001 in the U.S. Supreme Court and in the 9 th Circuit.

First, a quick review of the basics:

The AEDPA created for the first time a statute of limitations within which a federal habeas corpus petition must be filed or it will be thrown out of court. The limitations period is one year from ...

New York DOCS Settles Welfare Suit; Bans Welfare for Work Release Prisoners

In the April 2001 issue of PLN we reported Friedl v. City of New York , 210 F.3d 79 (2nd Cir. 2000) in which Walter Friedl, a New York Department of Correctional Services (DOCS) prisoner on work release filed suit after he was infracted and his work release status terminated ...

U.S. Supreme Court Holds Violation of IAD's Anti-Shuttling Provisions Requires Dismissal

The United States Supreme Court held that the "anti-shuttling" provision of Article IV(e) of the Interstate Agreement on Detainers (IAD) requires dismissal of the pending criminal charge(s) in the receiving state when the prisoner is returned to the sending state before trial on the charge(s).

In January, 1997, the Covington County, Alabama, District Attorney sought temporary custody of federal prisoner Michael Bozeman, pursuant to the IAD, in order to arraign him on state firearms charges.

On January 23, 1997, Federal authorities released Bozeman to local authorities, who transferred Bozeman to Covington County. He spent the night in the county jail, appeared in local court the next morning and was transferred back to federal prison that evening.

About one month later, Bozeman was returned to Covington County for trial. At that time his attorney moved to dismiss the state charges, arguing that the anti-shuttling provision of Article IV(e) of the IAD required dismissal of the charges with prejudice because Bozeman had been returned to federal prison prior to trial on the state charge.

The trial court denied Bozeman's motion to dismiss and he was convicted of the state charges. An intermediate state court of appeals affirmed ...

Failure to Sign Notice of Appeal Not Jurisdictional

In a unanimous decision, the United States Supreme Court held that although the Federal Rules of Appellate Procedure (FRAP) require that a notice of appeal be signed, the failure to sign a timely notice did not require the Court of Appeals to dismiss an appeal because the lapse was curable and not a jurisdictional defect.

Ohio prisoner Dale Becker instituted a pro se civil rights action in federal court contesting conditions of his confinement. Upon dismissal of the complaint for failure to state a claim, [Fed.R.Civ.P. 12(b)(6)], Becker filed a notice of appeal but failed to sign his name on the notice.

The Court of Appeals dismissed the appeal concluding that the defect was jurisdictional and therefore not curable outside the time allowed to file the notice.

The Supreme Court granted certiorari to address whether or not the failure to sign a timely notice of appeal requires dismissal of the appeal. The Court concluded, "For want of a signature on a timely notice, the appeal is not automatically lost."

The Court agreed with the Sixth Circuit holding in Mattingly v. Farmers State Bank , 153 F.3d 336 (6th Cir. 1998)(per curium), that the governing ...

ADA Claims Against State Cannot Proceed in Federal Court

ADA Claims Against State Cannot Proceed In Federal Court

In a suit against an Illinois prison brought under the Americans with Disabilities Act (ADA), a prisoner with impaired vision was denied monetary, declaratory, and injunctive relief in federal court under a combination of statutory and Eleventh Amendment bars. Such ADA claims against a state must be brought in state court, the U.S. Court of Appeals for the Seventh Circuit ruled.

John Walker, a prisoner at Dixon Correctional Center (Illinois) sued officials (in their official capacities) in the Illinois Department of Corrections (DOC) under Title II of the ADA, 42 USC §§ 1213165, seeking books on tape and a brightly lit cell to overcome his impaired vision. He also sought damages against the state actors.

Noting that the ADA only permits suit against a discriminating "entity," the U.S. District Court (N.D. Ill.) denied monetary damages on grounds that they could not attach to the named individuals because individuals are not "entities." Although the district court did allow the claim for declaratory and injunctive relief to proceed, the Seventh Circuit held that because the ADA was grounded in the Commerce Clause (US Const., Art. 1, §8(3)), the state was ...

Supreme Court Eliminates "Catalyst Theory" Fee Awards

Supreme Court Eliminates "Catalyst Theory" Fee Awards

In a 54 decision, the United States Supreme Court held that the "catalyst theory" is no longer a permissible basis for an award of attorneys' fees to "prevailing parties" under fee shifting statutes such as 42 U.S.C. §§ 19731(e), 1988, 2000e5(k), 3613(c)(2), and 12205. The Court held that a party must obtain a judgment on the merits or a court-ordered consent decree to be considered a "prevailing party."

In 1996, Buckhannon Board and Care Home, Inc., (Buckhannon), which operates residential care homes _ but not nursing services _ for elderly persons who need assisted living, failed an inspection by the West Virginia Fire Marshal when a 102-year-old resident and two others could not get to a fire exit without aid. This violated the state's `self-preservation' law that prohibited homes like Buckhannon from accommodating persons unable to exit the premises without assistance in the event of fire.

Cease and desist orders were issued against Buckhannon, requiring the closure of its facilities within 30 days. Buckhannon, in turn, brought suit in federal court seeking declaratory and injunctive relief that the "self-preservation" law violated the Fair Housing Amendments Act of ...

Florida DOC Clears Itself of Racism Charges

The September 2001 issue of PLN reported on a series of lawsuits filed by black prison employees against the Florida Department of Corrections, as well as racist brutality by Florida prison guards. Florida DOC Secretary Michael Moore at the time promised to investigate the multitude of allegations concerning racism and racist behavior within the Department. On August 28, 2001, Moore announced the investigation's conclusion, saying there was no evidence of racism or racial discrimination within the DOC. Moore characterized allegations to the contrary as "anecdotal" and lacking sufficient evidence upon which to act.

"I am personally offended by racial misconduct and discrimination and pledge to vigorously address and resolve any such allegations within the department," Moore said in a press release. Moore had yet to release the actual report to media at the time of his press release.

State Senator Kendrick Meek (DMiami), one of the legislators who pushed for the investigation due to the large number of complaints of racist discrimination that his office had received, said he was eager to review the report and how the DOC reached its conclusions. "I want to see that because it has to be a work of art. I was there ...

Race-Based Religious Policy Unconstitutional

The Court of Appeals for the Fourth Circuit has held that prison officials' denial of Native American religious items to a non-Native American prisoner based solely upon his race violates the Equal Protection Clause of the Fourteenth Amendment.

Virginia prisoner Gary David Morrison, Jr., filed suit under 42 U.S.C. § 1983 against officials at the Greensville Correctional Center (G.C.C.). Morrison is not a Native American by birth, nor has he been adopted by a Native American Tribe. He is a member of a prison group known as HEART _ "Heritage Examined Around Redman Traditions." HEART is not a religion. Most of its members are not Native Americans and do not practice any particular tribe-based religion. Nor do they participate in Native American ceremonies. Morrison practices what he terms "Native American Spirituality." To practice this religion Morrison wished to possess a number of the same sacred items as Native Americans receive to practice their tribal-based religions.

On May 14, 1997, G.C.C. issued a memorandum to all HEART members informing them that requests for acquiring or maintaining existing articles of Native American faith will only be considered for those prisoners who are bona fide Native Americans. To ...

Family of BOP Prisoner Awarded $1.1 Million in Wrongful Death Suit

A federal judge in Oklahoma City ruled in May 2001 that the government was negligent in the death of federal prisoner Kenneth Michael Trentadue and ordered the family to be paid $1.1 million for emotional distress. However, U.S. District Judge Tim Leonard rejected arguments that Trentadue was murdered ...

PLRA Bars Mental and Emotional Damages for Asbestos Exposure

The Fifth Circuit Court of Appeals has held that a prisoner may not recover damages for mental and emotional injuries due to his exposure to asbestos and other health-threatening prison conditions.

Johnny Ray Herman, a Louisiana state prisoner, filed suit under 42 U.S.C. § 1983 against various prison and local parish officials alleging his exposure to asbestos, a mosquito-infested facility, insufficient sanitizing of dishes and eating utensils, cold food, an open cesspool near the residence areas, and the lack of hot water, and lack of loaner clothing on laundry days while incarcerated at the East Carroll (Parish) Detention Center caused him to experience mental stress. Herman requested injunctive, declaratory, and monetary relief. He was later transferred to the Dixon Correctional Institute in Jackson.

The defendants filed a motion for summary judgment alleging that the PLRA, 42 U.S.C. § 1997e(e), barred recovery of damages for mental anguish absent physical injury and that Herman's transfer to a state prison mooted his request for injunctive and declaratory relief. The district court agreed, granting summary judgment. Herman appealed.

The Fifth Circuit held that, while Herman had a right to not be housed in unsafe conditions, Herman's complaint was a ...

News in Brief

News in Brief:

Arkansas: On August 23, 2001, Joseph Davis, 39, and Bobby Green, 51, prisoners at a state prison in Varner feigned illness and jumped a guard. The men then stole the guard's truck and kidnapped an unidentified off duty guard and his daughter. The hostages were released unharmed. Davis was recaptured two hours after the escape.

Arkansas: On August 23, 2001, Lafayette County Jail guard George Turner, 64, was stabbed to death in his home. Barry Parrish, 37, escaped from the Lafayette Jail that day and has been recaptured and charged with escape and capital murder in Turner's death.

Colorado: On August 1, 2001, Michael Cook, 31, a former guard at the Corrections Corporation of America operated prison in Walsenberg, was sentenced to two years in federal prison for deliberately dropping a handcuffed prisoner face down onto the floor.

Colombia: On July 3, 2001, a fight between imprisoned guerrillas and gang members at the Modelo prison in Bogota left 10 prisoners dead. The prisoners fought with guns and fragmentation grenades. Apparently the gang members refused to cooperate with a guerrilla escape plan.

France: On October 13, 2001, a helicopter hijacked at gunpoint landed in the yard ...

Denial of Treatment for Two Hours Defeats Qualified Immunity

Denial Of Treatment For Two Hours Defeats Qualified Immunity

Afederal district court in Alabama has held a detainee's allegations that guards failed to take action on his complaints of chest pains for over two hours defeats qualified immunity.

After being arrested by Deputy Sheriff Morris Rogers and taken to Alabama's Elmore County Jail, detainee Neal Adams asked guards to call his doctor because he was experiencing chest pains and shortness of breath. The guards told Adams he just needed another beer and laughed.

After about two hours of Adams' begging for guards to call his doctor and pleading his situation was getting worse, the guards opened the cell and a man identified as "Dr. Feel Good" entered. He examined Adams and proclaimed nothing was wrong, except he needed another beer. After another detainee continued to ask guards to seek a doctor for Adams, guard Phillip Estes entered the cell. Estes handcuffed Adams, grabbed him by the throat, and slammed him against the wall two times, and told Adams if he said another word he would be cuffed to the grate in the floor where detainees urinate. After the other detainee continued to ask for help for Adams an ...

Arizona Supreme Court Upholds Application of Gate Money Amendments

The Arizona Supreme Court, sitting en banc , held that amendments to Arizona's "Gate Money" statute were not applied retroactively and did not violate due process or ex post facto prohibitions.

Arizona prisoner Reinhold Zuther was convicted in 1992. At that time ARS § 31228 required the Arizona Department of Corrections (ADOC) to provide each prisoner with $50 in gate money upon release, unless the prisoner possessed more than $250.

The 1993 legislature amended the gate money statute to create a "dedicated discharge account" for each prisoner, into which a percentage of the prisoner's wages would be deposited, up to $50. If, upon release, the balance of the prisoners discharge account did not total $50 the ADOC would pay the difference. Otherwise, the ADOC was under no obligation to provide gate money.

Zuther filed suit, challenging the retroactive application of the 1993 changes to the gate money statutes. The trial court dismissed the complaint but the Court of Appeals reversed, holding that the statutes were being misapplied to Zuther. The Arizona Supreme Court granted review and vacated the Court of Appeals decision.

The high court concluded that Zuther's release date, not the date the crime was committed, determined whether ...


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