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Prisoner Education Guide

Prison Legal News: March, 2001

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Volume 12, Number 3

In this issue:

  1. Deadly Nostalgia: The Politics of Boot Camps (p 1)
  2. Riot at CCA Prison Hospitalizes 15 Guards (p 5)
  3. FTCA, Bivens Claims in Beating Suit Proceed in Bifurcated Trial (p 5)
  4. The Spirit of Freedom and Resistance, Long Kesh Prison Closed (p 6)
  5. Cook County Deputies Charged in Beating Death (p 7)
  6. BOP Organ Transplant Ban Questioned (p 7)
  7. U.S. Isolates Political Prisoners (p 8)
  8. Feds Continue Abuse of El-Hage (p 8)
  9. WA DOC Sells Prisoner Information (p 10)
  10. The Continuing Saga of Corruption in the New York State Parole System (p 11)
  11. Texas Deputy Pays Price for Testifying (p 12)
  12. Jail Term for DUI Turns into Death Sentence (p 12)
  13. Texas Death Machine Faces Renewed Criticism (p 13)
  14. Wildfires Highlight Cheapness of Prisoner Lives (p 14)
  15. Ad Seg States Claim, But Loses on Merits (p 15)
  16. Lorton Conditions Unconstitutional (p 16)
  17. Colorado Prisoner Challenges 'Sex Offender' Label (p 17)
  18. BOP Possession Offense Requires Specific Intent (p 18)
  19. Permanent Injunction Granted for Kosher Diets (p 19)
  20. SHU Should Be Compared to Conditions Experienced by All Prisoners (p 20)
  21. Consent No Defense For Guard Accused of Raping Prisoner (p 20)
  22. Court May Reduce Post-Judgement Attorney's Fees Rate and Billable Hours (p 21)
  23. NJ Prisoners Entitled to Cross Examine Witnesses (p 21)
  24. "The Judge Gave Me Ten Years--He Didn't Sentence Me to Death" (p 22)
  25. Oregon Compelled Parole Statute Not Retroactive (p 26)
  26. Improperly Installed Bunks State 8th Amendment Claim (p 26)
  27. Second Circuit Holds That Gang Member Designation Regulation is Not Ex Post Facto (p 27)
  28. PLRA Doesn't Apply to Civil Commitments (p 27)
  29. News in Brief (p 28)
  30. $1.18 Million in Santa Clara Co. Sexual Assault/Harassment Suit (p 30)
  31. New York Prayer Rule Struck Down (p 31)
  32. Federal Religious Freedom Law Passed (p 32)

Deadly Nostalgia: The Politics of Boot Camps

The short, stout eighth grader Gina Score, was never much of an athlete. But that didn't matter to the staff at South Dakota's Plankinton boot camp for girls, where militarystyle discipline and calisthenics were the modus operandi and, as staff put it, "quitting is not an option." On her first day in boot camp Gina _ sentenced for stealing a beanie baby _ was excoriated and ordered about in an official induction process that, according to one former staff member, "isn't successful unless someone pukes or pisses their pants."

The second day, July 21 1999, began with a sweltering 2.7mile morning run. Immediately Gina, at 5' 4" and 226 pounds, fell behind the rest of the pack and was showing signs of heat stroke. By the end, she was lying in a pool of her own urine, frothing at the mouth, gasping for breath, twitching, and begging for "mommy."

Staff denied the girl water, but did administer a full course of ridicule: calling her a faker, laughing at her, dragging her, dropping Gina's limp hand onto her own face and finally threatening to video tape the girl to prove "what a pathetic and uncooperative child ...

Riot at CCA Prison Hospitalizes 15 Guards

A minor riot on July 15 2000, left fifteen guards and one prisoner injured at the North Fork Correctional Facility in Sayre, Oklahoma. Six guards were sent to area hospitals where they were treated for minor cuts and bruises. One guard suffered a broken nose.

The incident began when a guard observed two prisoners passing a paper bag on the recreation yard and went to investigate. When a second guard intervened a scuffle ensued. The situation escalated as more prisoners and guards got involved. Nineteen prisoners were implicated and segregated from the rest of the population. No weapons were involved in the incident.

All of the 1,434 prisoners in the privately owned Oklahoma prison are from Wisconsin. John Litscher, secretary of the Wisconsin Department of Corrections, sent two prison investigators to Sayre the next day to interview guards and prisoners. The contents of the bag was not determined but it was verified that prison response teams used tear gas to bring the situation under control.

The North Fork facility is a private prison ooperated by Corrections Corporation of America. Susan Hart, spokeswoman for CCA, said "our staff has been interviewing people all day" and are "still trying to determine ...

FTCA, Bivens Claims in Beating Suit Proceed in Bifurcated Trial

Orlando Ortiz, a pretrial detainee, brought action for use of excessive force during a pat search under the Federal Tort Claims Act, 28 U.S.C. §26722680 (FTCA), and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 833 (1971). Ortiz charged that Lt. Carl A. Pearson and C.O. Carl Alplanalp, of Otisville Federal Correctional Institution, violated his due process rights secured by the 5th Amendment.

During a pat search Ortiz was found to have his cellmate's Walkman radio. A disagreement ensued between Alplanalp and Ortiz ending in Ortiz being escorted to Pearson's office. The facts as to what happened next are in dispute. Ortiz claims he was thrown to the ground, forcefully handcuffed and then raised by his handcuffs and dropped on the concrete, causing injury to his shoulder, face, body and leg. The defendants deny that this occurred, or, in the alternative, that any force used was de minimis and did not arise to the required constitutional threshold.

The defendants moved for summary judgment on qualified immunity and sovereign immunity; severance and stay of the Bivens claim pending resolution of the FTCA claim, and election of remedies.

The court ...

The Spirit of Freedom and Resistance, Long Kesh Prison Closed

Her Majesty's Prison Maze, also called Long Kesh, is a high security prison located about ten miles from Belfast in Northern Ireland's County Antrim. The largest of Northern Ireland's prisons, it was established on the site of Long Kesh Royal Air Force Base, a World War II airfield, in the early 1970s. Hundreds of men were rounded up; while some were tried and sentenced before imprisonment, others were imprisoned without trial.

All were prisoners taken by the British government in its war against both the Irish Republican Army (IRA), fighting to free Northern Ireland from British rule, and the Loyalist Volunteer Forces (LVF), the Ulster force fighting to maintain British sovereignty. In 1974 there were 1,800 such prisoners, the largest number ever held in the prison. During that year, Gerry Adams, president of Sinn Fein, the political arm of the IRA, together with other remanded prisoners, joined forces with sentenced prisoners and burned the camp to the ground. Five members of the current Northern Ireland Assembly have served time there.

The British government claims HM Prison Maze is the highest security prison in all of Europe. In spite of this, prisoners have escaped single, and in ...

Cook County Deputies Charged in Beating Death

Three Cook County (Chicago, IL.) deputies were charged with murder for allegedly beating a prisoner in a courthouse holding cell May 5, 2000. The prisoner died two days later from injuries sustained in the beating.

Louis Schmude, 40, was awaiting a court hearing on a charge of violating an order of protection that his wife obtained against him. Schmude, who suffered from cirrhosis of the liver, asked a female sergeant for water and medical attention, said a witness. The sergeant ignored Schmude's request and he cursed at her, said the witness, who was in the same holding cell when the incident occurred.

The sergeant and two male deputies handcuffed Schmude and began punching and kicking him, the witness said, and then dragged him into an elevator.

"You could see them dragging him into an elevator," the witness told the Chicago SunTimes. "As the door was closing, I could see her kicking him, stomping him... As the doors closed... all you could hear is the guy screaming, `I'm sorry, I'm sorry.'"

At the hearing, Schmude told his wife he'd been beaten. He asked the judge for a glass of water and medical attention. Schmude died two days ...

BOP Organ Transplant Ban Questioned

The court of appeals for the Eighth circuit dismissed, without prejudice, a habeas corpus petition filed by Kenneth Barron, a federal prisoner, claiming his longterm survival was at risk because the Bureau of Prisons (BOP) refuses to provide him with a kidney transplant. Instead, Barron requires kidney dialysis to survive. The district court dismissed the habeas petition because a BOP doctor provided an affidavit claiming that dialysis patients had a low mortality rate. No documentation supported the affidavit. The appeals court affirmed dismissal of the petition. The appeals court noted that Barron did not challenge the BOP's organ transplant policy.

The court expressed its concern about the BOP's organ transplant policy. "Simply stated, the Bureau of Prisons does not provide organ transplants, and, in the event a prisoner can show he needs a transplant, requires him to demonstrate his ability to pay for the transplant procedure before a furlough for that purpose will be authorized. Given the Bureau's obligation to provide medical care to prisoners, see 18 U.S.C. § 4042, denial of a transplant to an inmate who cannot pay for a transplant may raise constitutional concerns." See: Barron v. Keohane, 216 F.3d 692 (8th ...

U.S. Isolates Political Prisoners

Two recent federal appeals court decisions highlight some of the repressive measures used by U.S. authorities to isolate and silence political dissenters. Though the methods used by the two political prisoners involved in these cases may be distasteful to some people, Americans must understand that the U.S. government has repeatedly sanctioned such socalled "terrorist acts" against its political opponents, both foreign and domestic.

Likewise, the U.S. is responsible for helping to establish the rules of engagement that its political opponents use against it. Americans believe that we are an enlightened lot, but the truth is we seem to recognize the tyranny of others in far off lands while remaining blind to our own institutions of oppression. U.S. prisons contain many prisoners of war and political prisoners, yet American authorities refuse to acknowledge this. The cases of two such prisoners follows.

In 1970, Russell Shoats was convicted of first degree murder for his part in an attack on a Philadelphia police guardhouse. Shoats participated in the attack as a member of the Black Liberation Army. One police officer was killed and another seriously wounded in the attack. Shoats was sentenced to life imprisonment but twice escaped.

In ...

Feds Continue Abuse of El-Hage

In a telephone interview with The New York Times, April ElHage said federal jail officials in Manhattan have been retaliating against her husband, Wadih ElHage, ever since two codefendants in the case were accused of stabbing and critically wounding a guard.

The two codefendants, Khalfan Khamis Mohamed and Mamdouh Mahmud Salim, shared a cell in one of the most secure areas of the Metropolitan Correctional Center (MCC). On November 1, 2000, they were allegedly able to stab and subdue a guard, Louis Pepe, take his keys, and then attack a group of other officers as they arrived to assist Pepe. It's alleged that the two prisoners were attempting to escape using a sharpened comb as their weapon.

Mr. ElHage, Mr. Mohamed, and Mr. Salim, along with two other defendants, were being held in the federal lockup awaiting trial on charges that they participated in a worldwide terrorism conspiracy, led by Osama Bin Laden, which was responsible for the August 1998 bombings of two U.S. embassies in East Africa. All five defendants have pleaded not guilty. Mr. ElHage has not been accused of a direct role in the bombings.

The two defendants accused in the stabbing were transferred to ...

WA DOC Sells Prisoner Information

In response to a Public Disclosure Act (PDA) request from PLN, the Washington Department of Corrections (DOC) revealed that since at least 1995 it has been selling prisoner information to a variety of private and media companies. The private company data brokers in turn resell the information for a hefty price to anyone willing to pay for it.

The information being sold consists of "offender data files" culled from the DOC's Offender Based Tracking System (OBTS) computer database. (See side bar.) OBTS contains information on everyone who has ever been in DOC custody. This is public information under state law, see RCW 42.17 and RCW 10.97.040(4).

The information is provided to requestors on a mainframe computer tape for which the DOC charges $175 per tape. The amount of information is fairly large since it includes everyone who has ever been in the custody of the Washington DOC. Washington currently has approximately 15,000 prisoners in custody and another 55,000 people on "community supervision" status.

The media purchasers of this information are The Associated Press in New York (which includes virtually all U.S. corporate media), the Everett Herald newspaper, and KOMO 4 (ABC), KING ...

The Continuing Saga of Corruption in the New York State Parole System

In 1992 a young Korean man, John Kim, was sentenced to four to twelve years for armed robbery. Four years later he walked out paroled, after his father, pastor of a prominent Korean congregation in New York City, gave $7,000 to the 1994 campaign to elect George Pataki governor of New York State.

Two other Korean families also paid large sums to see their sons, James Jhang and Bo Young, similarly convicted of violent crimes, receive parole. When these paroles were not forthcoming one of the families went to the federal prosecutor in Brooklyn to report that they had paid $20,000 to obtain their son's freedom and that neither Pataki's campaign finance director nor a volunteer GOP fund raiser, both of whom had contacted them, had obtained said freedom.

To date, this trip to Zachary Carter's office in January of 1997, has resulted in the conviction for perjury of 2 state parole officials and the indictment of a third for misleading investigators. [See PLN, 5/99 and 2/00] And the probe goes on. The trial of the volunteer GOP fund raiser for Bob Dole, Alfonse D'Amato and George Pataki came to an end ...

Texas Deputy Pays Price for Testifying

Without the testimony of former Bexar County (TX) Jail guard Linda Grady, one of her former colleagues would never have been indicted for striking a prisoner, prosecutors say. As it was, Charles Mizell was convicted June 8, 2000 on one count each of official oppression and violating a person's civil rights. He was assessed a $2,000 fine.

The charges stem from a November 18, 1998 incident at the jail. Joseph Cuellar was one day away from being transferred to a state prison when he stood up from a card game and, using sign language, motioned to a passing trusty pushing a cart that he wanted food.

A guard interpreted Cuellar's hand signal as a threat. Cuellar was removed from the cell and restrained in a chair in a hallway. He testified at trial that Mizell walked by and asked him his name. When he said he'd already given his name to another deputy, Mizell struck him across the face.

Linda Grady, a petite, grayhaired woman who was one of four other deputies in the hall stepped between Mizell and Cuellar.

"I put my hands up to Mizell and told him to back away," Grady said. "Mizell ...

Jail Term for DUI Turns into Death Sentence

On July 11, 2000, Rodney "Rocky" Eickstadt began serving a 175day jail term at the Franklin County (Ohio) Jail for drunken driving. Ten weeks later he was dead _ from complications related to untreated diabetes.

Eickstadt didn't know he was diabetic when he started his jail sentence. But by August 23, 2000 he was sure he suffered from some kind of serious medical problem, and he requested in writing to be seen by a doctor.

The jail has a $210,000/month contract with EMSA Correctional Care to provide 24hour medical services. It specifies that prisoners requesting medical treatment be examined by a qualified health care provider within 24 hours.

Eickstadt's request for treatment went unanswered for 18 days, while his symptoms worsened. Finally, on September 10, he was examined at sick call by an EMSA nurse. At that time, he complained of vomiting, shortness of breath, bleeding gums, and constant urination. The nurse put him on a liquid diet, ordered a urinalysis, which was never performed, and sent him back to his cell.

The next day, Eickstadt told jailers he wasn't feeling well but received no medical attention until hours later when deputies found him unconscious ...

Texas Death Machine Faces Renewed Criticism

A report released October 16, 2000 by the Texas Defender Service, a nonprofit group that represents death row prisoners, concludes that "an intolerably high number of people are being sentenced to death [in Texas] and propelled through the appellate courts in a process that lacks the integrity to reliably identify the guilty or meaningfully distinguish those among them who deserve a sentence of death."

The report, t A State of Denial: Texas Justice and the Death Penalty, follows another critical study released a month earlier by a committee of the State Bar of Texas that described the state's system of providing legal representation to the poor as "a national embarrassment."

Maurie Levin, a lawyer for the Texas Defender Service, said the group examined hundreds of capital trials and appeals, including every published death penalty decision rendered by the Texas Court of Criminal Appeals, the state's highest criminal court, since 1976.

One of the report's central contentions is that the appeals process is too cursory. It examined 103 appeals cases and found that in 79 percent of them, the judge never held an evidentiary hearing. In these appeals, the report also found, lawyers for death row prisoners often ...

Wildfires Highlight Cheapness of Prisoner Lives

Wildfires HighLight Cheapness of Prisoner Lives

The summer of 2000 brought dev-
astating wildfires to the Western United States. By official count, some 25,000 firefighters were involved battling dozens of blazes across the West during the height of the fire season. That includes ground crews, air squads, fire engine personnel, and an army of supervisors and support workers, according to federal fire manager Neil Hitchcock.

About 13,000 people belong to crews assigned to the actual fire lines. Of those, Mr. Hitchcock said, more than 2,000 were prisoners. And at wages that average $1 hour, the convict firefighters represent a considerable bargain for taxpayers in a year when federal firefighting expenditures exceeded $1 billion.

California has the largest convict firefighter program, with prisoners based in 38 conservation camps across the state. Another large program exists in Nevada, with about 900 prisoners involved. Wyoming, Washington, Idaho, Utah and, most recently, Texas are among states that have established smaller operations.

Utah's program is one of the smallest, with three crews of 20 firefighters. But those crews are unique in that they are the only prisoners to hold the federal designation as "hotshots," slang for topranking Type I status. They ...

Ad Seg States Claim, But Loses on Merits

The court of appeals for the Second circuit held that a district court did not err in vacating a jury's finding that a New York prisoner's 101-day placement in segregation violated due process. In doing so, the court held that New York state rules on segregation placement do create a liberty interest, but that enforcing such rules will be difficult.

In the March, 1998, issue of PLN we reported Sealy v. Giltner, 116 F.3d 47 (2nd Cir. 1997) where the court reversed this case for factual findings as to whether Security Housing Unit (SHU) conditions were an "atypical and significant hardship" as required by Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995). On remand, the district court held a trial. The jury found that the SHU conditions were atypical, found a due process violation and awarded the plaintiff nominal damages. The court then entered judgment notwithstanding the verdict for the defendants and held, as a matter of law, that 101 days in SHU did not violate due process. See: Sealey v. Coughlin, l997 F. Supp. 316 (ND NY 1998). [PLN, Nov. 1998]. On appeal, the Second circuit affirmed the dismissal.

Emmeth Sealy, a ...

Lorton Conditions Unconstitutional

A federal district court for the District of Columbia held that a prisoner stated claims for an assortment of constitutional injuries and a violation of the Lorton Act. The defendants' motion to dismiss the complaint or, in the alternative, for summary judgment was denied in part.

This case is remarkable ...

Colorado Prisoner Challenges 'Sex Offender' Label

The Tenth Circuit Court of Appeals held that a Colorado prisoner's classification as a "sex offender" is subject to due process considerations.

In 1985, the Colorado Department of Corrections (CDOC) modified its Administrative Regulation governing classification to include a Sex Offender Component in its Risk Assessment Management Program. The Component required sex offenders to participate in the Sex Offender Treatment Program (SOTP) and categorized sex offenders based on their criminal history, including a category for prisoners without an underlying conviction for a sex offense (S4) who are then labeled as sex offenders.

In 1987 John Chambers was classified as a sex offender though he had never been convicted of a sex offense. For the next five years Chambers was not required to participate in SOTP and received the maximum ten days per month earnedtime credits to which he would normally have been entitled. Then, in 1992, Chambers was suddenly deemed eligible to participate in SOTP. Since Chambers refused to admit he was a sex offender, a requirement for SOTP participation, the CDOC immediately deemed him ineligible for SOTP and reduced his earned time by three days per month.

Chambers first filed a §1983 suit alleging that the improper classification ...

BOP Possession Offense Requires Specific Intent

The U.S. court of appeals for the Eleventh Circuit held that a violation of 18 U.S.C. § 1791(a)(2), which makes it unlawful for federal a prisoner to possess a "prohibited object," is a specific intent crime, and intent to use the object as a weapon is an essential element of the offense, not merely a sentencing factor.

In August 1996, Charles Allen was a federal prisoner working for UNICOR's mattress factory at the U.S. Penitentiary in Atlanta, when he was searched by a supervisor. The search uncovered three 9½ inch long tufter needles and a wooden dowel with a hole bored in one end and a rope wrapped around the other. Allen claimed he intended to turn in these items when the opportunity presented itself.

Shortly thereafter, Allen was indicted for possession of "prohibited objects ... intended to be used as weapons, in violation of ... 1791(a)(2)." At pretrial, the court ruled the government did not have to prove Allen's intent as an element of the offense. Rather, intent would be determined by the court at sentencing. Under the circumstances, Allen entered a conditional guilty plea, reserving his right to appeal the issue ...

Permanent Injunction Granted for Kosher Diets

The Colorado Federal District Court granted a permanent injunction against the Department of Corrections (CDOC) finding the CDOC in violation of the Free Exercise Clause of the First Amendment for failing to provide Colorado Prisoners with a kosher diet.

As reported in the December1998 issue of PLN, a preliminary injunction (PI) was granted based on the Court's findings that: (a) the prisoners had a substantial likelihood of success on the merits, (b) irreparable injury would result without the injunction, (c) the threatened injury outweighed the harm to the CDOC, and (d) that the PI would not be adverse to the public interest. The Court analyzed the prisoners' First Amendment claim under the four factors set forth in Turner v. Safley, 107 S.Ct. 2254 (1987), in finding for the prisoners. The CDOC's claims of high costs of serving kosher food, security problems, and future lawsuit fears were rejected. See: Beerheide v. Zavaras, 997 F.Supp. 1405 (D.Colo. 1998).

Subsequent to the PI order, the CDOC set up a modified kosher kitchen within the regular kitchen at the Fremont Correctional Facility. Trial was then had before the District Court Judge and previous findings of fact and conclusions of ...

SHU Should Be Compared to Conditions Experienced by All Prisoners

SHU Should Be Compared To Conditions Experienced By All Prisoners

The Second Circuit has held that, to determine whether a ninetyday stay in a Special Housing Unit (SHU) is atypical and significant, it should be compared with the typical conditions experienced by all prisoners in the prison system, not just those sentenced to SHU.

Elbert Welch, a New York state prisoner, sued prison officials under 42 U.S.C. § 1983 claiming that the officials deprived him of due process when they placed him in solitary confinement in a SHU for ninety days for assisting another prisoner with legal work without authorization and for having another prisoner's headphones in his cell. The district court granted defendants' motion for summery judgment, concluding that Welch did not have a right to provide unauthorized legal assistance to other prisoners and that Welch had no liberty interest in remaining free of SHU for ninety days because it was not an atypical and significant worsening of Welch's imprisonment conditions. Welch appealed.

The Second Circuit held that Welch had no right to provide legal assistance to other prisoners, but that the district court erred when it held that ninety days in a SHU was not ...

Consent No Defense For Guard Accused of Raping Prisoner

by Matthew T. Clarke

A federal district court in Delaware has held that a prison guard may not use consent as a defense in a suit by a prisoner alleging he raped her.

Dorothy Carrigan, a Delaware state prisoner, filed suit under 42 U.S.C. § 1983 against a guard ...

Court May Reduce Post-Judgement Attorney's Fees Rate and Billable Hours

The Ninth Circuit has held that the district court may reduce the rate of pay and number of billable hours for postjudgment work by prevailing civil rights attorneys in prisoner cases when the postjudgment work is less complex and risky than the trial work.

Robert Webb and several other prisoners ...

NJ Prisoners Entitled to Cross Examine Witnesses

Holding that a prisoner was entitled to cross examine and to confront the complaining witness at a prison disciplinary hearing, a New Jersey appellate court reversed the sanctions imposed on a prisoner accused of tampering with a locking device on a gate.

Robert Decker, a prisoner at the East Jersey State Prison, was accused of tampering with or blocking a locking device while leaving the prison dining hall on September 21, 1999. At a disciplinary hearing, Decker and two prisoners testified that there were 50 to 60 prisoners behind Decker who were pushing and shoving their way out of the dining hall. Decker tripped on something, fell into the gate and caused the gate to open.

Prison guard Dirmeitis, the charging guard, claimed that Decker's act was intentional and jeopardized the security of the prison. At the disciplinary hearing, Decker's request to confront and cross-examine Dirmeitis was denied. The hearing officer simply asked Dirmeitis to submit a supplementary report to satisfy the request for confrontation.

The court of appeals disagreed with this procedure and held that where a prisoner is charged with a disciplinary infraction and the matter turns on the credibility of the prisoner or the guard ...

"The Judge Gave Me Ten Years--He Didn't Sentence Me to Death"

"The Judge Gave Me Ten Years--He Didn't Sentence Me to Death"

Prisoners with HIV deprived of proper care

By Anne-Marie Cusac

In prisons and jails across the country, prisoners with HIV or AIDS are denied proper treatment. In many cases, guards and medical staff have blocked prisoners from getting their vital drug regimens, sometimes for months at a time, or have prescribed regimens that are dangerous. Such negligence can lead to drug resistance. It can also lead to death.

"We routinely get letters from people who are not getting their medications," says Christine Doyle, research coordinator for Amnesty International, U.S.A. The mistreatment appears to be widespread and may affect thousands of prisoners.

It may also be illegal. The Supreme Court ruled that prisoners must receive adequate medical care. The 1976 decision in Estelle v. Gamble states, "Deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain'... proscribed by the Eight Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed ...

Oregon Compelled Parole Statute Not Retroactive

The Oregon Supreme Court affirmed a lower court decision, which held that the retroactive application of a 1985 "compelled parole" statute violated the constitutional prohibition against ex post facto laws.

In 1985 the Oregon legislature enacted ORS 144.245(3) that mandates: "In no case does a prisoner have a right to refuse an order granting the prisoner release upon parole." Before the enactment of ORS 144.245(3), however, no statute expressly precluded a prisoner from refusing parole.

Edward Bollinger was convicted in 1985, of crimes that were committed between November 1984 and February 1985. The Board of Parole and PostPrison Supervision, (Board), issued an order in 1991 refusing to set a parole date but requiring that he be released upon parole two days before his good time date in 1995.

The significance of the Board's decision is that if an Oregon prisoner is released on the good time date the sentence is served in its entirety and no parole supervision may be ordered. See, e.g., Erbs v. Board of Parole, 752 P.2d 318 (1988). However, if the prisoner is released before the good time date, the Board may require the prisoner to serve a period ...

Improperly Installed Bunks State 8th Amendment Claim

The court of appeals for the Sixth circuit held that a prisoner's complaint that bunk beds are improperly installed upside down, and the anchor bolts' protrusion into the sleeping area states an eighth amendment claim. Tennessee prisoner Forrest Zayne Brown filed a 42 U.S.C. §1983 suit claiming the bunks' improper installation resulted in prisoners sliding off onto the concrete floor while asleep, and the anchor bolts could potentially cause injury. The district court dismissed the complaint as frivolous under 28 U.S.C. §1915(e)(2).

The court of appeals reversed and remanded for further proceedings. The court stated that in order to state an 8th amendment claim the prisoner must satisfy both an objective and subjective component test. The objective component requires showing the prisoner "is incarcerated under conditions posing a substantial risk of serious harm." The subjective component requires that prison officials state of mind exhibited "deliberate indifference" to prisoner health or safety.

The court held that Brown's allegations were analogous to those made in Helling v. McKinney, 113 S.Ct. 2475 (1993), a case in which a prisoner brought an eighth amendment claim seeking future damages for being forced to share a cell ...

Second Circuit Holds That Gang Member Designation Regulation is Not Ex Post Facto

The Second circuit court of appeals held that a Connecticut DOC administrative directive making prisoners classified as safety threats ineligible to earn good time credits was not ex post facto and that a Connecticut statute did not create a liberty interest in good time.

On September 3, 1993, Ralph Abed was sentenced to a ten year term of imprisonment. At that time Connecticut statutory law provided that obedient prisoners "may" earn 10 days of good time per month. On December 10, 1993, the CDOC adopted Administrative Directive 6.14. Under that directive, prison gang members were identified and classified Security Risk Group Safety Threat Member (SRGSTM). The directive excluded SRGSTM's from earning good time.

For a period of 40 months Abed was classified as a SRGSTM. During that time he was denied the opportunity to earn good time credits. In a petition for a writ of habeas corpus, Abed sought the restoration of the good time credits he was denied while classified as a SRGSTM. Abed claimed that the Directive, when applied to him, was ex post facto. Abed also claimed that the state's good time statute created a liberty interest. He argued that he was denied due ...

PLRA Doesn't Apply to Civil Commitments

The court of appeals for the Ninth circuit held that the Prison Litigation Reform Act does not apply to people civilly committed as "sexually violent predators." Sammy Page is civilly committed under California's Sexually Violent Predators Act.

Page filed suit in Federal court and sought In Forma Pauperis (IFP) status so he could file the suit without prepaying the filing fees. The court denied Page IFP status and dismissed the suit finding Page had not complied with the PLRA'S administrative exhaustion and financial reporting requirements. The appeals court reversed and remanded.

The appeals court noted that civil commitments are not prisoners. Interestingly, the California attorney general's office also urged this interpretation on the court. In a footnote, the court observed that this did not mean California's civil commitment scheme was not, in fact, punitive. As a matter of statuary construction, civil commitments are not prisoners within the meaning of the PLRA, therefore the PLRA does not apply to actions filed by civil commitments.

All district courts to decide this issue have held likewise but this is the first circuit court ruling on the topic. See: Page v. Torrey, 201 F.3d 1136 (9th Cir. 2000).

News in Brief

AK: In December 2000, Jeffrey Wiseman, 44, a guard at the Palmer Correctional Center in Palmer was charged with theft and fraudulent use of a credit card stemming from his theft of jail prisoners' credit cards and using them to buy goods. When confronted by police Wiseman confessed to the thefts.

AK: On December 31, 2000, a prison guard at the Ketchikan Correctional Facility shot and killed prisoner John Ebling, 38, who was trying to escape. Ebling had climbed two fences and was trying to leave the prison. After ignoring orders to stop and rubber bullets, tower guards opened fire with live bullets, killing him at the scene. Ebling was imprisoned on an attempted murder conviction in 1999.

AL: On January 31, 2001, six prisoners escaped from the maximum security St. Clair Springs prison. The men, three of whom were serving sentences of life without parole, escaped by climbing over two chain link fences topped with razor wire and using a wooden broom handle to lift, and crawl under, an electrified 5,000 volt "lethal fence." Proving once again that high tech measures are usually neutralized by low-tech countermeasures. On February 1, 2001, the escapees were recaptured in Tennessee. After ...

$1.18 Million in Santa Clara Co. Sexual Assault/Harassment Suit

$1.18 Million In Santa Clara Co. Sexual Assault/Harassment Suit

Female prisoners were awarded a total of $1,180,000 in damages and attorney's fees in the settlement of a suit filed against the Santa Clara County, California, Board of Supervisors and Department of Corrections over a pattern ...

New York Prayer Rule Struck Down

by Matthew T. Clarke

The Second Circuit court of ap-
peals has held that Rule 105.11 of the New York State Department of Corrections Services (DOCS) Standards of Inmate Behavior (the Rules) violates the Due Process Clause of the Fifth Amendment when used to punish prisoners engaged in silent ...

Federal Religious Freedom Law Passed

On July 27, 2000, Congress unanimously enacted Senate Bill 2869, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which was signed into law by president Clinton, as a public law 106-274. The bill passed congress in two weeks and tries to reverse the supreme court ruling in City of Boerne v. Flores, 521 U.S. 507 (1997)[PLN, Sep. 1997].

In Boerne the court held that the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, was unconstitutional as applied to state and local governments (the RFRA still applies to the federal government). The court held that in enacting the RFRA congress exceeded its authority under section 5 of the 14th amendment to the U.S. constitution. The RLUIPA attempts to correct this.

The RLUIPA applies to all government programs that receive federal financial assistance, which includes all state governments and virtually all-local governments. The RLUIPA prohibits government imposition of land use regulations that burden religious exercise (the underlying issue in Boerne) unless the government can show a compelling interest and the regulation is the least restrictive means of furthering that interest.

While the RFRA applied to prisoners, the RLUIPA specifically states its application to prisoners ...


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Disciplinary Self-Help Litigation Manual



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