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Prisoner Education Guide

Prison Legal News: May, 2001

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Volume 12, Number 5

In this issue:

  1. Washington DOC Hit with almost $50 Million in Verdicts and Settlements in Parole Victim Suits (p 1)
  2. Closing Washington's Window of Parole Liability (p 4)
  3. From the Editor (p 6)
  4. Private Prison Contractor Not Entitled to Immunity (p 6)
  5. Washington DOC Hit with almost $50 Million in Verdicts and Settlements in Parole Victim Suits (p 7)
  6. Warden Fired over Riot at New Mexico CCA Prison (p 8)
  7. Kentucky Phone Rate Ruling (p 8)
  8. Eight Prisoner Deaths in California Women's Prison (p 9)
  9. Disciplinary Hearing Reversed for Failure to View Videotape (p 12)
  10. New York Strip Search Punitive Damage Award Vacated (p 14)
  11. New York Strip Search Suit Settled for $50 Million (p 14)
  12. Software Glitch Frees Washington Probationers (p 15)
  13. Two Louisiana Death Row Prisoners Freed (p 15)
  14. Peaceful Protest at Mount Olive Prison (p 16)
  15. CCA Faulted in Texas Jail Escape (p 16)
  16. Corrections Corporation of America Hit with $3 Million Abuse Verdict (p 17)
  17. New York Jury Awards $900,000 for Jail's Failure to Protect (p 18)
  18. Three Florida Guards Charged with Beating 'Gunner' (p 19)
  19. Due Process Violation, Plain Error Reverse Marijuana Conviction (p 19)
  20. Voluntary Agreement with MINNCOR Not Enforceable Contract (p 20)
  21. Washington DOC Settles Sex Harassment Suit for $250,000 (p 20)
  22. Second Circuit Cautions District Courts To Use Proper Sandin Analysis (p 21)
  23. $74,000 Awarded to Slashed New York Prisoner (p 21)
  24. Bogus Felons List Results in Suppression of Florida Votes (p 22)
  25. US Supreme Court Allows BOP Limit on Early Release Statute (p 23)
  26. Homemade Paper Spear Is Not a Deadly Weapon (p 24)
  27. PLRA Vacated Consent Decrees Can't Be Enforced in State Court (p 25)
  28. Texas Prisoner Raped By Wackenhut Guard Entitled To Discovery Protection (p 25)
  29. Change in AIDS Medication States Claim (p 26)
  30. PLRA Attorney Fee Cap Doesn't Apply After Release; Texas County Liable in Attack (p 26)
  31. Damages Awarded in New York Retaliation Suit (p 27)
  32. Gay New York Guard Wins $1.5 Million Harassment Award (p 28)
  33. County Must Pay Prisoner's Medical Expenses (p 28)
  34. Secular Humanism: Philosophy or Religion? (p 29)
  35. Prisoner Bound by Jailhouse Lawyer's Work (p 29)
  36. News in Brief (p 30)
  37. The Prisoner's Guide to Survival: A Comprehensive Legal Assistance Manual for PostConviction Relief and Prisoners' Civil Rights Actions (p 32)

Washington DOC Hit with almost $50 Million in Verdicts and Settlements in Parole Victim Suits

In a four-month period between September, 2000 and January, 2001, the Washington Department of Corrections (DOC) was hit with separate jury verdicts for $22.4 and $15 million and settled two additional cases for $8.8 million. All four lawsuits stem from the DOC's negligent supervision of parolees in ...

Closing Washington's Window of Parole Liability

In addition to almost $50 million in settlements and verdicts assessed against the Washington DOC in recent months, the Washington DOC has paid an additional $20.6 million to settle 25 parole liability cases and pay one jury verdict since 1994. Apparently, the state had previously been able to buy off victim plaintiffs for relatively small amounts of money. Before 2000 the only case to go to trial resulted in a 1997 Pierce county (Tacoma) jury verdict of $6.3 million to the family of Meeka Willingham, a 16 year old cheerleader murdered by parolee John Eggers. The highest settlement, before the Underdahl case this year, was $1.8 million paid to a Seattle woman in 1998 after she was stalked, shot and left paralyzed by a former boyfriend who was on parole for previously assaulting and raping her.

The state of Washington is self insured for individual payouts of $5 million or less. Insurance companies pay the rest but this arrangement is in danger in light of skyrocketing claims and the Washington Attorney Generals (AG) office's failure to file a notice of appeal in a $17 million sexual abuse case against the Department of Social and Health Services ...

From the Editor

Welcome to PLN's 132nd consecutive issue. May 2001, marks PLN's eleventh anniversary. In that time period PLN has grown from a 10 page, hand typed, photocopied newsletter to its current magazine format and size.

As reported in last month's editorial, things at PLN have been hectic in the aftermath of the disappearance of PLN's former office manager Fred Markham in mid February. Since then, our main goal has been to get PLN's monthly production back on schedule. Equally important, and vital, has been the reconstruction of PLN's financial records, reorganizing our office and in many ways starting from scratch. We are still assessing the damage caused by Fred's embezzlement and sabotage. Right now PLN is having higher expenses than normal, including having to hire an accountant to help us reconstruct the financial records that Fred stole or destroyed to cover up his thievery. If you can afford a donation at this time, please send it. Any support, including stamps, is much appreciated.

At our current rate of progress, we hope to be back on our regular publishing schedule by the June or July issue. You can save valuable staff time by renewing or ...

Private Prison Contractor Not Entitled to Immunity

A State court of appeals in West Virginia has held that a private contractor of youth incarceration services is not entitled to immunity under the Governmental Tort Claims and Insurance Reform Act (the Act), W.Va. Code §§ 2912A1 to 18.

Tracy Galloway initiated delinquency proceedings against her fourteen-yearold son. The son was arrested, detained at a facility run by Youth Services Systems, Inc., a nonprofit independent contractor, and a court directed that he receive inpatient drug and alcohol treatment. However, the son was released without treatment. He then committed suicide after ingesting a controlled substance.
Galloway filed a wrongful death suit against Youth Services Systems (YSS) in state court. YSS moved for summary judgment, claiming immunity under W. Va. Code 2912AS(a)(3), (14). The circuit court denied summary judgment and YSS filed an application for a writ of prohibition with the Supreme Court of Appeals seeking to prevent the suit on the basis of the aforementioned immunity.

The court of appeals held that, before an entity can claim the disputed immunity, it must show that it is a political subdivision of the state pursuant to W. Va. Code § 2912A5(a)(3), (14). YSS argued that it was a political ...

Washington DOC Hit with almost $50 Million in Verdicts and Settlements in Parole Victim Suits

A federal district court in New York has reinstated the malicious prosecution claim in Scott v. Coughlin and allowed trial to proceed on the issue of whether the denial of three requested witnesses at a prison disciplinary hearing was a violation of due process.

Harold Scott, a New York state prisoner, was charged _ in both prison disciplinary and state felony criminal actions _ with possession of a shank after one was allegedly found in the leg of his bed. Scott was found guilty at a disciplinary hearing and sentenced to 45 days keeplock, 30 days of which were deferred. Scott unsuccessfully appealed the disciplinary charge. Scott then filed an Article 78 petition, which the defendants did not contest so that the petition was granted without reaching the merits and the incident was expunged from Scott's record.

Scott was produced before the Beekman Town Justice for arraignment on the criminal charges. Believing he could not be compelled to appear without a court order, Scott refused to enter the courtroom. This resulted in another disciplinary charge. Scott's criminal trial resulted in a mistrial and the state then dismissed the case.

Scott was found guilty of disobeying a direct order ...

Warden Fired over Riot at New Mexico CCA Prison

Warden Fired Over Riot at New Mexico CCA Prison

Corrections Corporation of America officials fired the warden and chief of security at the Torrence County (New Mexico) Detention Facility just three weeks after a November 11, 2000 prisoner uprising involving 32 District of Columbia prisoners who reportedly used a sixinch shank, mop handles, toilet bowl scrubbers and table legs to injure eight CCA guards.

The uprising began at around 12:30 a.m. after prisoners refused to go to their cells for the night. State police Lt. Pete Kassetas said there was some kind of disagreement between prisoners and guards, but wouldn't be more specific about what sparked the disturbance.

"There were 32 different inmates in the pod," Kassetas told the Albuquerque Journal, "there are probably 32 different reasons why they rioted."

Prison officials pumped tear gas into the pod through pipes in the ceiling. The melee was not quelled until 2:40 a.m., said Ellen Hawks, assistant warden.

Seven guards were transported to University of New Mexico and Presbyterian hospitals. Five suffered stab wounds. Two were initially listed as critical but after surgery were listed in satisfactory condition. Another guard was treated at the scene by prison ...

Kentucky Phone Rate Ruling

A federal district court in Kentucky held that the filed rate doctrine barred any claims for money damages against Phone Company and county jail defendants. However, injunctive relief was still available. The court questioned the legality of an exclusive service provider contract.

In the August, 1999, issue of PLN we reported the filing of Daleure v. Commonwealth of Kentucky, class action lawsuit that challenged the phone rates charged by prisons and jails in Kentucky, Missouri, Indiana and Arizona. This ruling addresses the defendants' motion to dismiss the suit. In a footnote the court notes that in previous unpublished orders it has dismissed as defendants the states of Arizona, Missouri and Indiana for lack of personal jurisdiction and the state of Kentucky was dismissed based on its Eleventh amendment immunity. The Kentucky jails remain as defendants only for purposes of injunctive relief.

In their suit, the plaintiffs claimed that the high phone rates and exclusive phone contracts violated the Sherman Anti Trust Act, 15 U.S.C. § 1 and the equal protection clause. In this ruling the county jail and phone company defendants sought dismissal of the suit for failing to state a claim. The court granted the motion in part ...

Eight Prisoner Deaths in California Women's Prison

Eight Prisoner Deaths In California Women's Prison Revive Concerns About Medical Care, Availibility
Of Compassionate Release

by Silja J.A. Talvi

The deaths of eight female prisoners within a seven-week period at a California women's prison have sparked a new round of activist and legislative inquiry into the provision of adequate and timely medical care in the state's prison system.

No foul play is suspected in the deaths of the Central California Women's Facility (CCWF) prisoners. But the concentration of these deaths in November and December resulted in renewed insistence on the part of several San Francisco Bay Area-based prisoner advocate groups that the California Department of Corrections (CDC) must continue to improve its health care delivery system, and to provide compassionate release to terminally ill prisoners.

Among the deceased were Eva Vallario, 33, who died suddenly in a prison visiting room and Pamela Coffey, 46, who died on December 2 in front of her cellmates. Coffey's cellmates have complained that Medical Technical Assistants (guards who are also licensed vocational nurses) made fun of her pleas for assistance a half-hour before her death.

Some of the concerns expressed by prisoner advocate groups were echoed by ...

Disciplinary Hearing Reversed for Failure to View Videotape

In two separate rulings a U.S. District Court set aside an Indiana State Prison Conduct Adjustment Board's (CAB) findings of guilt and punishment after determining that the CAB violated a prisoner's due process rights when it denied his request to review a security camera videotape.

Darrell Mayers, an Indiana state prisoner, was charged with possession, introduction, or use of a controlled substance (marijuana). A CAB found Mayers guilty and assessed punishment of loss of goodtime credit and demotion in timeearning class.

Following unsuccessful administrative appeals, Mayers filed a 28 U.S.C. §2254 action claiming that he had been denied the right to present evidence because the CAB would not grant his request to consider a videotape which purportedly "showed the real truth in the matter."

The court granted Mayers' petition and ordered respondent Anderson to conduct a new hearing "at which the videotape and its contents are available to the petitioner and the CAB." Anderson answered that he was "unable to comply with the court's order because the videotape no longer exists." It was prison policy, said Anderson, to reuse security videotapes every seven days. The videotape used on May 9th, the date of the ...

New York Strip Search Punitive Damage Award Vacated

The Court of Appeals for the Second Circuit reversed the award of $5 million in punitive damage award against the City of New York for an unlawful strip and body cavity search of a misdemeanant arrestee. The court held that punitive damages are not available against municipalities.

In January 1997 ...

New York Strip Search Suit Settled for $50 Million

On January 9, 2001, it was announced that New York City would pay $50 million to settle a class action lawsuit involving the suspicionless strip searches of some 58,000 people arrested on minor charges. For ten months in 1996 and 1997 jail guards in Manhattan and Queens strip-searched all ...

Software Glitch Frees Washington Probationers

A computer error at the Washington state Department of Corrections prematurely released about 70 people from criminal supervision or restitution payments. People convicted of crimes such as robbery, drug possession and assault were suddenly freed from supervision on April 21, 2000, said DOC spokesman Jack Kopp.

DOC officials failed to notice the error until midJuly when prosecutors tried to file charges against a man for violating his probation only to discover that his courtordered supervision had been inexplicably terminated by the DOC months before.

The DOC persuaded five or six people to voluntarily return to DOC supervision, Kopp said. But another 44 "declined" to voluntarily return to supervision, and the terms of supervision for the remainder would have expired by the time the error was discovered anyway.

At least one of the 70 people violated a nocontact order during the lapse in supervision. Such a probation violation would normally result in prosecution, but this person could not be prosecuted because of the computer glitch, Kopp said.

The error also relieved many from paying restitution, at least temporarily. One woman owed more than $23,000 from a welfare fraud conviction.

Assistant attorney general Dawn Cortez said that everyone will be ultimately ...

Two Louisiana Death Row Prisoners Freed

Three days after Christmas, 2000, Michael Ray Graham walked off death row at the Louisiana State Penitentiary at Angola. He was wearing a prison issue denim jacket and carried all of his worldly possessions in two manila envelopes tucked under one arm.

After 14 years on death row and with the state dismissing all charges against him because of "a total lack of credible evidence" linking him to the crime for which he was convicted, all that the 37yearold Mr. Graham received in compensation was a $10 check from the prison for transportation.

Graham hopped a Greyhound bus to his home in Roanoke, Virginia. The ticket cost $127. One of his lawyers, Michele Fournet, paid for it and gave him another $100 walkin' around money to boot.

Albert Ronnie Burrell, 45, was convicted, in a separate trial, of the same crime as Graham, the 1986 murder of an elderly couple in northern Louisiana. The state also dismissed all charges against Burrell and he walked out of Angola with a. stateissue jacket and a $10 check on January 2, 2001. Burrell, who is retarded and cannot read or write, came within 17 days of execution in 1996.

Graham's and Burrell ...

Peaceful Protest at Mount Olive Prison

Limits on personal property sparked a peaceful protest by prisoners at Mount Olive Correctional facility in Fayette County, West VA. On October 2nd over a fourth of the 867 residents gathered on the recreation yard with 16 demands for warden Howard Painter. The demands ranged from better food and medical care to Painter's resignation. But the central complaint was about new limits being imposed on the amount of personal property each prisoner can keep.

According to deputy corrections commissioner, Jim Rubenstein, current reductions were necessary to replace outdated policies enacted in the 1980s. For example, under the old standard prisoners could keep up to 10 pairs of pants and 50 cassette tapes. The new policy reduces those numbers to 6 and 20 respectively. Warden Painter says that prisoners abuse the old policy by storing excessive amounts of property in an effort to hide contraband and to run their own stores.

On Monday morning prisoners refused to make license plates and perform other duties around the prison, choosing instead to sit on the recreation yard in protest. They started gathering around 9:00 am and went without food the entire day. Warden Painter refused to negotiate on any of the ...

CCA Faulted in Texas Jail Escape

Staff shortages, unwatched video surveillance monitors, unlocked doors, untrained staff and a security alarm that was ignored by Corrections Corporation of America (CCA) employees contributed to the August 27, 2000 escape from the Bartlett State Jail near Austin, Texas.

Sixteen problems, the biggest of which was human error, allowed the escape to occur concluded a report from the Texas Department of Criminal Justice (TDCJ).

Ten TDCJ officials formed a faultfinding team to investigate and affix blame for the escape of Kendall James, 21, and David Sanders, 40. The two prisoners were working in the jail's kitchen when, around 4:00 a.m., they walked through an unlocked door, climbed a fence, entered the maintenance department through another unlocked door, "borrowed" some hand tools, cut through two more fences, and departed the facility at 4:51 a.m.

The Bartless Police department, located just ten minutes away, was unpromptly notified of the escape at 9:40 a.m.

The TDCJ pays CCA about $950,000 per month to operate the 1,000man state jail. The state will withhold $84,027 from CCA to recover the, costs to capture James and Sanders, who were captured the day after their escape.

Source ...

Corrections Corporation of America Hit with $3 Million Abuse Verdict

On Dec 14, 2000, a federal jury in South Carolina awarded a 14-year-old boy more than $3 million in damages after finding Tennessee-based Corrections Corporation of America (CCA) guilty of physically abusing the Charleston, SC teen-ager.

In 1996, William Pacetti, then 14, was sent to CCA on charges that he ...

New York Jury Awards $900,000 for Jail's Failure to Protect

A federal jury awarded judgment of $900,000 against the County of Nassau and the Sheriff of Nassau for failing to protect prisoner Steven W. Arnold from being assaulted and severely beaten while detained in the Nassau County Jail. PLN has previously reported about the unconstitutional conditions at the Nassau ...

Three Florida Guards Charged with Beating 'Gunner'

Three Florida state prison guards were arrested October 6, 2000 and charged with kicking and beating a prisoner so severely that his crushed right testicle had to be surgically removed. The beating was administered by guards as a form of "counseling" to a prisoner for reportedly "stalking female staff." [Prisoners who stalk female guards and expose themselves are called "Gunners"]

The Florida DOC, already embroiled in controversy over the beating death of "XWing" prisoner Frank Valdes, pointed to the arrests as proof the agency is "policing" its own.

The DOC began investigating the incident at Columbia Correctional Institution after receiving a complaint from the injured prisoner's grandmother. Later, the DOC referred the case to the state attorney's office in Columbia County, which filed the charges.

Charles Norris, 30, was charged with felony malicious battery resulting in great bodily harm and with failure to report use of force. Captain Frederick Young, 32, was charged with misdemeanor malicious battery and failure to report use of force. Sergeant Kelvin Wynne, 38, was charged with failure to report use of force. All three were placed on paid administrative leave, along with a fourth guard, Rodney Crews, who was placed on paid leave ...

Due Process Violation, Plain Error Reverse Marijuana Conviction

The Michigan Supreme Court reversed a state prisoner's conviction for possession of marijuana after finding that the prosecution had improperly introduced inculpatory statements made by the defendant at an earlier prison disciplinary hearing.

Raymond Wyngaard was a prisoner of Michigan's Kinross Correctional Facility when he was found in possession of a toothpaste box containing marijuana. A few days later, Wyngaard appeared at a prison disciplinary hearing where he admitted he had knowingly possessed marijuana. He was punished in accordance with prison guidelines.

Months later, criminal proceedings were initiated against Wyngaard. At trial, he testified he had not known that the box contained marijuana. The jury was unable to reach a unanimous verdict and _ a retrial followed.

At Wyngaard's second trial, the prosecution introduced a new witness, the prison disciplinary officer, who had not appeared at the earlier trial. The officer testified that Wyngaard had admitted at the hearing he had knowingly possessed marijuana. The officer's testimony was introduced not for the purposes of impeachment or rebuttal but as substantive evidence in the prosecutor's case in chief. Wyngaard did not object to the officer's testimony.

The second jury found Wyngaard guilty and an appeal ...

Voluntary Agreement with MINNCOR Not Enforceable Contract

Voluntary Agreement With MINNCOR Not Enforceable Contract

A state court of appeals in Minnesota has held that the Voluntary Agreement signed by prisoners laboring under MINNCOR's administration is not an enforceable contract.

Kenneth Murray, a Minnesota state prison, filed suit in state court alleging MINNOCR, a division of the Minnesota Department of Corrections which administers the interstate commerce prison work program, breached its contract with him by deducting the costs of a court filing and intending to deduct a medical copayment. The district court granted MINNCOR summary judgment and dismissed the suit.

Because MINNCOR engages in interstate commerce with prisoner produced goods, it is subject to the AshurstSummers Act, 18 U.S.C. §§ 276162, requiring that prisoners voluntarily participate in the work program and be paid at the prevailing wage minus certain deductions. To comply with this statute, MINNCOR had Murray sign a Voluntary Agreement in which he agreed to allow up to 64% of gross wages to be deducted for taxes, reasonable charges, costs of confinement, family support obligations, contributing to a crime victims' fund, restitution and other specific deductions set forth in Minn.Stat. § 243.23, which permits the deductions to be taken form a prisoner's ...

Washington DOC Settles Sex Harassment Suit for $250,000

WA DOC Settles Sex Harassment Suit for $250,000

In December 2000, the Washington Department of Corrections paid $250,000 to settle a sexual harassment lawsuit brought by a former community corrections officer who says she was fired after complaining to superiors about the harassment.

Shawnae Fossum claimed in her ...

Second Circuit Cautions District Courts To Use Proper Sandin Analysis

Acourt of appeals for the SecondDistrict has, once again, cautioned the district courts against using an improper analysis when analyzing conditions in Special Housing Units to determine whether a liberty interest is implicated under Sandin v. Canner, 515 U. S. 472 (1995).

Mitchell Kalwasinski, a New York state prisoner, filed suit under 42 U.S.C. § 1983 against prison officials he alleged violated his due process rights during prison disciplinary procedures. The district court awarded summary judgment to the defendants. Kalwasinski appealed.

The Court of Appeals for the Second Circuit affirmed the grant of summary judgment. In doing so, it noted that the district court had incorrectly conducted its analysis, pursuant Sandin v. Canner, 515 U.S. 472 (1995), of whether Kalwasinski's confinement in a Special Housing Unit (SHU) implicated a liberty interest. The Second Circuit elaborated on the proper analysis and noted that many district courts continue to perform improperly Sandin analyses.

The Second Circuit noted "to determine whether a liberty interest has been affected, district courts are required to examine the circumstances of a confinement and to identify with specificity the facts upon which their conclusions are based. " The proper analysis was previously given in Welch v ...

$74,000 Awarded to Slashed New York Prisoner

In July 2000, New York court of claims judge Ferris Lebous awarded $74,000 in damages to a prisoner slashed in an attack by another prisoner. On February 19, 1991, Billy Blake was in the segregation unit of the Shawangunk Correctional Facility. When Blake went to the segregation units recreation ...

Bogus Felons List Results in Suppression of Florida Votes

Bogus Felons List Results In Suppression of Florida Votes

by Ronald A. Young

Undoubtedly, it was the politically motivated decision handed down by five U.S. Supreme Court justices to put a halt to counting untallied Florida votes which actually decided the outcome of Presidential election 2000. Some folks, this writer included, have believed for years that ultimate political power in America resides with this nine-member junta. This flagrant power-play exhibited by its conservative wing should dispel any further doubts.

But intervention by the Supremes would have been unnecessary if things in Florida had not gotten so messy. And the reason Florida turned into an electoral quagmire in the first place was due to various acts and omissions by state officials and police agencies which resulted in the systematic suppression of legitimate voters (mostly African-American, Hispanic, and poor white).

One particularly odious practice revolves around the use of a dubious "felons" list by the Office of Secretary of State Katherine Harris, a Republican. Harris bought the list from a Boca Raton company, Database Technologies, and distributed it to county elections supervisors, who are required to attempt to verify the information and "scrub" ineligible voters from the rolls.

"It was a ...

US Supreme Court Allows BOP Limit on Early Release Statute

The U.S. Supreme Court has upheld 28 C.F.R. § 550.58(a)(1) (vi)(B) (Regulation), a federal Bureau Of Prisons (BOP) regulation modifying 18 U.S.C. § 3621(e)(2)(B) (Statute). The Statute provides that federal prisoners with nonviolent convictions may receive up to a one-year sentence reduction for participating in substance abuse programs. The Regulation forbids such sentence reductions to those who carried, possessed, or used a firearm or other dangerous weapon when committing their crimes. The 63 majority held that imposing the dangerous weapon limitation was a proper exercise of the BOP's authority.

In 1997, Christopher Lopez was convicted of possession with intent to deliver methamphetamine. Although Lopez' crime is listed as nonviolent, he received an enhanced sentence for possessing a firearm in connection with his offense, pursuant to U.S.S.G. § 2D1.1(b)(1), a federal sentencing guideline.

Lopez requested substance abuse programming, which was granted, but the BOP found him not eligible for the sentence reduction under the Regulation. This habeas corpus action, pursuant to 28 U.S.C. § 2241, ensued.

The action began in a South Dakota federal District Court. That court agreed with Lopez that the Statute ...

Homemade Paper Spear Is Not a Deadly Weapon

Homemade Paper Spear is Not a Deadly Weapon

The Washington state Court of Appeals held that a spear, made from paper rolled into a rigid shaft and tipped with a golf pencil, used to jab a guard through prisoner's cell door was not a deadly weapon for purposes of an Assault in the Second Degree conviction. The court also held as every court has that there is no double jeopardy bar to a criminal prosecution after prison disciplinary proceedings.

As Callam Bay Corrections Center (CBCC). Guard Jason Jones was passing a sack breakfast through the sixbyeighteen inch cuff port in prisoner Neil Skenandore's cell door, he was struck twice on the chest and once on the arm by a homemade spear. The spear was between 2'h and 3 feet long, fashioned from writing paper roiled into a rigid shaft and bound with dental floss, with a golf pencil for the tip. It did not tear the guards shirt but left three-pencil marks on his chest and sleeve. Skenandore then disassembled the spear and flushed parts of it down the toilet. When guards retrieved the spear it was no longer intact.

A CBCC Physician Assistant examined Jones and ...

PLRA Vacated Consent Decrees Can't Be Enforced in State Court

PLRA Vacated Consent Decrees Can't be Enforced in State Court

The court of appeals for the Eighth circuit held that consent decrees terminated under the Prison Litigation Reform Act (PLRA) cannot be enforced as private contracts in state court. Iowa prison officials moved to terminate various consent decrees under 18 U.S.C. § 3626(b)(2). The district court duly terminated the decrees.

The Eighth circuit noted that it had previously upheld the constitutionality of § 3626(b)(2). See: Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997) and Tyler v. Murphy, 135 F.3d 594 (8th Cir. 1998) . In this case the court rejected the argument, left open in its previous decisions, that consent decrees vacated under § 3626 are enforceable in state courts as contracts. The court adopted the Second circuit's ruling in Benjamin v. Jacobson, 172 F.3d 144 (2nd Cir. 1999)(en bane) in rejecting this argument. The court noted that the PLRA itself is silent on whether vacated consent decrees can be enforced as private contracts in state court. The court held that congress had the power to remove state court jurisdiction over the enforcement of federal consent decrees, even though it did ...

Texas Prisoner Raped By Wackenhut Guard Entitled To Discovery Protection

An appeals court in Texas has held that, under the Texas rape victims shield laws, Rule 412, 509(c)(1) and 510(b)(1), Texas Rules of Evidence, a prisoner who was raped by a guard and is suing Wackenhut may not be compelled to answer questions on whether the assault was consensual tai' provide Wackenhut with her sexual history, mental health history, or mental health medical records.

Jane Doe is the pseudonym used by a Texas state prisoner who was raped by a guard at the Travis County Community Justice Center (TCCJC), a state jail facility that was run by Wackenhut. In February 1999, Doe was sent to TCCJC. A few days after

her arrival, she was raped by Nathaniel Jenkins, Jr., a guard employed by Wackenhut. Ultimately, Wackenhut's contract was terminated and twelve Wackenhut employees _ including Jenkins _ were indicted for sexually assaulting Doe and two other women.

Doe filed stilt against Jenkins, TCCJC's warden, TCCJC's assistant warden and Wackenhut alleging that, because of Wackenhut's negligence, she was entitled to recover past and future pain and mental anguish and should be awarded punitive damages. Wackenhut submitted interrogatories and, based upon Doe's answers ...

Change in AIDS Medication States Claim

Change In Aids Medication States Claim

A Virginia federal district court ruled prisoner Terry Lee Taylor stated a claim under 42 U.S.C. §1983 where a prison doctor order a change in Taylor's AIDS medication without notification. The new medication caused Taylor to suffer side effects, including rashes, drowsiness, discolored urine, numbness in his feet, loss of appetite, and mental stress. Taylor alleged the action caused him serious injury because his "life expectancy has been greatly shorten[ed]." He claimed the action was cost motivated and criminally negligent.

The defendant, Dr. Burnett, moved to dismiss the complaint because Taylor did not exhaust his administrative remedies. Burnett argued Taylor did not appeal his grievances with the Virginia DOC. Taylor alleged in his complaint that he attempted to file several grievances but the forms were not returned so he was unable to appeal. The Court held that if Taylor's factual allegations are true, then he had exhausted his "available" administrative remedies as required by the PLRA. Thus, the merits of the claim must be considered.

In examining Taylor's claim, the Court stated Taylor must demonstrate a sufficiently serious medical need and show deliberate indifference to that need. The ...

PLRA Attorney Fee Cap Doesn't Apply After Release; Texas County Liable in Attack

The court of appeals for the Fifth circuit held that a Texas county was liable for failing to protect an arrestee from assault in its jail. The court also held that the Prison Litigation Reform Act (PLRA) attorney fee cap did not apply to a case filed by someone who was not in government custody when the suit was filed.

Bobby Janes was imprisoned in the Bastrop county jail in Texas on traffic charges. While in a jail cell with felons, Janes was severely beaten by the other detainees. Janes sued the county and jail for failing to protect him from attack by other prisoners. At trial Janes proved the county had a policy of mixing prisoners with no propensity to violence with violent prisoners. Prisoners had to defend themselves or suffer abuse.

A jury found the sheriff of Bastrop county liable for failing to protect Janes. Janes was awarded an unspecified amount of damages and attorney fees, which were affirmed in appeal. [Editor's Note: A recent pattern in published Fifth circuit rulings is to avoid giving the dollar amount awarded in prison and jail litigation when it comes to damages and attorney fees. Since the court is constantly ...

Damages Awarded in New York Retaliation Suit

Damages Awarded In New York Retaliation Suit

A Federal District Court in New York awarded a prisoner $4,221.40 for back wages and educational costs, but denied punitive damages in a successful retaliation suit. The court later denied the defendants' motion for reconsideration.

In 1988, New York state prisoner ...

Gay New York Guard Wins $1.5 Million Harassment Award

On July 18, 2000, a gay Nassau County, NY jail guard won $1.55 million in damages after a federal jury agreed that his supervisors failed to intervene when his coworkers repeatedly tormented and harassed him due to his sexual orientation.

The verdict, reached after a threeweek trial in Federal ...

County Must Pay Prisoner's Medical Expenses

AKansas Court of Appeals found that a governmental agency is not entitled to seek reimbursement from a prisoner for the cost of medical treatment received by the prisoner while in the agency's custody.

While incarcerated in the Haskell County {Kansas) jail, David Sullivan experienced chest pains and difficulty breathing. After being diagnosed with pneumonia, he underwent surgery and was hospitalized for 18 days. Because Sullivan had no source of income and was indigent, the county paid the $46,780 bill for his medical treatment.

Following his release from jail, Haskell County demanded reimbursement from Sullivan for the cost of his medical care. Sullivan, pleading indigence, declined to pay and the county filed suit. The trial court denied the county's demand and an appeal followed.

The appellate court, in it's ruling, adopted the view of the Kansas legislature. "The legislature has expressed a policy that the liability for the care and maintenance of a prisoner, Including Medical expenses, should be the responsibility of the governmental entity whose criminal statutes the prisoner allegedly violated," said the court.

Drawing further support from case law, the court ruled that Kansas courts have consistently held that a prisoner's rights include entitlement ...

Secular Humanism: Philosophy or Religion?

The D.C. Circuit has held that federal prison officials were entitled to qualified immunity for refusing to recognize secular humanism as a religion.

Ben Kalka, a former federal prisoner, sought to form secular humanism groups to meet in prison chapels. At his last unit of incarceration, FCIJesup, the prison chaplain recommended to the warden that Kalka's request be sent to the Central Office Review Committee (CORC). Based on Kalka's submitted documentation and some outside research, CORC determined that secular humanism was a philosophy, not a religion, and that a secular humanism group should not be allowed to meet in the chapel, which was solely for religious activities. The warden offered to let Kalka form a group and teach secular humanism in the Education Department. Initially, Kalka refused the offer, but he later accepted it and taught secular humanism in the Education Department prior to his release.

Kalka sued in federal court under 42 U.S.C. § 1983. The district court granted the defendants summary judgment on the grounds that secular humanism was not a religion without addressing the issue of qualified immunity. Kalka appealed.

The D.C. Circuit _ in a transparent attempt to avoid having to ...

Prisoner Bound by Jailhouse Lawyer's Work

by Paul Wright

Afederal district court in Texas has held that a prisoner who relies on other prisoners to prepare his legal pleadings is bound by the content of those pleadings.

Nhan Kiem Tran is a federal prisoner in Texas who was convicted of several methamphetamine related offenses. With the assistance of BOP prisoner David Dirks, Tran filed a petition for habeas corpus, which was denied.

In the instant case, Tran filed a motion for the court to vacate its judgment on his first habeas petition by claiming that he was tricked. Tran claimed that Dirks had represented himself to be an attorney, when he was not, and the habeas petition was invalid because Dirks, not Tran, had signed the civil cover sheet. The court gave short shrift to this argument.

"Dirks acted as Tran's agent. The authorized acts of an agent bind the principal. An agent has actual authority when the principal instructs him to handle a matter for him.... Tran as the principal and Dirks as the agent specifically arranged orally and in writing for Dirks to prepare and file Tran's application for a writ of habeas corpus. Dirks had actual authority to act on Tran ...

News in Brief

News in Brief:

Argentina: On December 29, 2000, 11 political prisoners of the Movimiento Todos Por La Patria ended a hunger strike begun on September 6, 2000, after president Fernando de la Rua signed a decree reducing the prisoners' life sentences. The prisoners had been convicted of assaulting an army base in 1989 to forestall a military coup and were sentenced to life without parole or appeal. The courts and legislature had rejected the prisoners' petitions for clemency. De la Rua's order was enacted as an emergency decree due to the precarious state of the prisoner's health. The prisoners received extensive political support during their hunger strike. The sentence reduction should result in the prisoner's release within a year.

AZ: On December 27, 2000, prisoners Patrick Bradbury, 35, and Anthony Luzanilla, 31, escaped from the high tech maximum security Lewis Prison Complex near Buckeye. The men escaped that morning by hiding in garbage and being taken to a nearby landfill. They were recaptured that same evening, 9 hours later, hiding in an abandoned dairy farm. Earlier that month, the state auditor had praised the high tech security features at the two-year-old prison. Deputy prison director Charles Ryan ...

The Prisoner's Guide to Survival: A Comprehensive Legal Assistance Manual for PostConviction Relief and Prisoners' Civil Rights Actions

By L. Powell Belanger PSI Publishing, Inc. (745 Pages)

Reviewed by Sam Rutherford

The Prisoner's Guide to Survival is a new legal research tool that covers all aspects of federal litigation common to prisoners. The book is useful both to the novice pro se litigant and to the experienced attorney involved in federal criminal appeals or prisoner civil rights actions

The first half of the Guide provides an in depth, step-bystep outline for litigating an appeal from a federal conviction or sentence, the filing of a federal habeas corpus petition by state or federal prisoners, litigating a federal civil rights complaint, and the filing of petitions for a writ of certiorari in the Supreme Court. These diverse topics are each discussed succinctly in separate chapters and sections of the Guide, with sample forms at the end of each chapter. The Guide is written and organized in an easy to understand, thorough fashion that clearly apprises the individual litigant of what to expect as his or her lawsuit moves forward. There is also a chapter on legal research and legal writing, which is extremely insightful for the beginner.

More useful to the experienced litigant is the "Case Law" section of ...


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Disciplinary Self-Help Litigation Manual