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Prisoner Education Guide

Prison Legal News: June, 2001

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Volume 12, Number 6

In this issue:

  1. Women Behind Bars (p 1)
  2. From the Editor (p 4)
  3. Strikes Sweep Bolivian Prisons as Promise of Freedom Fades (p 5)
  4. Custodial Rape of Female Prisoners Widespread in U.S. (p 6)
  5. Wrongfully Convicted Ohio Man Receives $250,000 Award (p 7)
  6. Federal Court Partially Terminates New York Jail Consent Decree Relief (p 8)
  7. Texas Prisoners Have Thirty Days to Sue Following Resolution of Grievance (p 10)
  8. ADA Settlement at Washington Special Commitment Center (p 10)
  9. Prisoners of the Census (p 13)
  10. Pro Se Tips and Tactics (p 14)
  11. Leave to Amend Complaint Wrongly Denied (p 14)
  12. Failure to Notify Prisoner of Hearing Violates Procedural Rights (p 15)
  13. Bid to Regain Family Visits Fails in California (p 16)
  14. Supreme Court Restricts ADA (p 17)
  15. Louisiana Prison Activist Freed (p 18)
  16. Arbitrary Denial of Michigan Appeal Bond Enjoined (p 19)
  17. Costs Allowed Only by Court Order (p 19)
  18. Second Circuit Holds Staged Perp Walks Unconstitutional, Grants Qualified Immunity (p 20)
  19. $9.6 Million Awarded for Child Death in Illinois Jail (p 21)
  20. No Forfeiture Notice Violates Due Process (p 22)
  21. Montana Court Awards PLRA-Capped Attorney Fees Under Catalyst Theory (p 23)
  22. Prisoner Defendants Entitled to Notice of Summary Judgment Requirements (p 23)
  23. Texas Prisoners Have Liberty Interest in Mandatory Supervision (p 24)
  24. Guards Use Shotguns to Control Riot (p 24)
  25. Unlawful Imprisonment Nets Ohio Man $25,000 (p 24)
  26. Texas Prisoners Have Right to Appear at Civil Court Hearings (p 25)
  27. Washington Media Royalties Sentencing Condition Reversed (p 26)
  28. Prison Doctor Wins $654,471 in Retaliation Suit (p 26)
  29. Minnesota Prison Cited For Asbestos Infractions (p 27)
  30. Texas Prisoners May Challenge Discretionary Mandatory Release Procedures (p 27)
  31. $3 Million Award Not Excessive in Prisoner Beating Death (p 28)
  32. Suspicionless Maine Jail Strip Searches Set for Trial; Settles for $455,000 (p 28)
  33. PLRA-Based Garnishment Used to Collect Court Costs for Defendant (p 29)
  34. Indiana Jail Settles Strip Search Case for $300,000 (p 29)
  35. News in Brief (p 30)
  36. Harsh Hitching Post Treatment States Claim (p 31)
  37. Ten Percent Prison Commissary Surcharge in New Jersey Upheld (p 31)
  38. Statutory Authority Not Required to Levy Housing Costs (p 32)
  39. Continuing California's Prison Interview Ban (p 32)

Women Behind Bars

It's the kind of statistic that deserves repeated mention: America's prisons and jails now hold just under two million persons, or 1 in every 142 U.S. residents.

To put America's incarceration rates into perspective, it's worth bearing in mind from 1990 to 2000, U.S. prisons and jails grew by almost 800,000 prisoners, or nearly 1,600 new prisoners per week.

More Americans went to prison or jail during the Clinton administration than during any other past presidential administration, and there are no indications that current President George W. Bush, whose own home state relies heavily on incarceration as a popular method of punishment, would want to change the "tough on crime" approach his predecessors began.

As it continues in its upward climb, America's imprisonment phenomenon is both astonishing and unparalleled. And it's taken on dimensions and produced societal ripple effects that citizens are only beginning to understand.

One of the relatively downplayed dimensions of the incarceration craze has been the high annual growth rate of women behind bars. It's a higher average annual growth rate than that of male prisoners _ 8.1 to 6.2% according to the most ...

From the Editor

Welcome to another issue of PLN. Right now we are still focused on getting our publishing schedule back on track so that readers receive their issue around the beginning of the issue's calender date. We expect to be back on schedule by July.

As mentioned in the April, 2001, editorial, Fred Markham, PLN's former office manager disappeared after embezzling funds from PLN over a multi year period. One result of his disappearance, and having to set up a new office and train new staff, is that we are behind on sending out subscription renewal notices.

We should be caught up on that by the time you receive this issue of PLN. But you can save valuable PLN staff time by renewing your subscription now, before we have to send you a renewal notice. Renew your subscription for two years and we will add four free issues to your subscription. If you can afford to send an additional donation to support PLN at this time of crisis, please do so as financial support (including postage stamps) is urgently needed.

Dan Pens, PLN's former coeditor, is no longer associated with PLN. Those who had been directly sending Dan newspaper ...

Strikes Sweep Bolivian Prisons as Promise of Freedom Fades

In celebration of Jubilee 2000, Roman Catholic Pope John Paul asked the nations of the world to pardon crimes and free prisoners where possible. Bolivia responded with Law 2098 "to celebrate the coming of the third millennium by granting benefits of special character to those imprisoned."

In June of 1999 Bolivia's 16 prisons held 8,057 prisoners in facilities designed to hold only 4,959. Cells are sold to incoming prisoners by previous occupants or other prisoners at prices between $2 and $5,000 depending on the location. In the poorest areas, cells are tiny even by U.S. standards: 3 by 4 by 6 feet and without ventilation, lighting or beds. The crowding in some prisons is so bad that prisoners are obliged to sleep sitting up.

It was expected the law would greatly reduce this overcrowding: preliminary counts estimated the number of prisoners to benefit would be 3,369. These, however, represent only about 40 percent of Bolivian prisoners, most of who are awaiting trial or sentencing and hence automatically ineligible. Sentenced prisoners to whom the amnesty applied expected to be freed or have their sentences reduced by the end of the Jubilee Year.

The Bolivian legislature ...

Custodial Rape of Female Prisoners Widespread in U.S.

Custodial Rape Of Female Prisoners Widespread In U.S.

by Roger Smith

American jail and prison officials sexually molest hundreds, and possibly thousands of women prisoners each year. According to a March 2001 report by Amnesty International USA, over 1,000 such cases were reported in the last 3 years with hundreds more not reported for fear of official retaliation.

The Amnesty report attributes this phenomenon to state laws, which do not adequately punish prison officials for such abuse of prisoners. Although far too little and long overdue, a few legislators are calling for stiffer penalties for prison officials who sexually molest prisoners.

Amnesty compiled data for its report by combing state and federal laws dealing with custodial sexual abuse of prisoners, and by interviewing attorneys general, departments of correction officials, and activist groups.

Prisoners in all 50 states and the federal system are subjected to such abuse, says Amnesty. It blames laws that do not protect prisoners from prison official abusers. For example, many states have no laws against such abuse, some have laws that provide little protection for prisoners, and some have laws that could actually result in the prisoner victim being criminally prosecuted after being coerced into ...

Wrongfully Convicted Ohio Man Receives $250,000 Award

On January 11, 2001, a Columbus, Ohio man who spent nearly six years in prison for three rapes he did not commit was awarded almost $250,000 in damages by the Ohio Court of Claims.

Walter D. Smith, 43, was released from the Madison Correctional Institution on December 6, 1996 ...

Federal Court Partially Terminates New York Jail Consent Decree Relief

by Matthew T. Clarke

A federal district court in New York has terminated consent decree relief for New York City Jail prisoners with respect to restrictive housing due process, prisoner correspondence, and law libraries, while leaving intact the consent decree relief for restraint status due process and attorney visitation.

This is a classaction civil rights lawsuit under 42 U.S.C. § 1983, previously reported in PLN as Benjamin v. Jacobson [PLN Jan. 1997, Aug. 1999 ], in which prisoners in New York City jails previously entered into consent decrees with the City of New York and the Department of Corrections regarding jail conditions. Under the termination provision of the Prison Litigation Reform Act, 18 U.S.C. §3626(e), the defendants brought a motion to terminate constant decrees and all supplemental orders entered in this action and six related cases. The court held a hearing and determined that some of the issues in the consent decree did not meet the requirement of ongoing violation of a federal right. The decision was limited to the issues of prisoner correspondence, attorney visitation, due process rights and programs for detainees in high l security categories, and law library. In addition to the testimony and ...

Texas Prisoners Have Thirty Days to Sue Following Resolution of Grievance

An appeals court in Texas has held that Texas prisoners have only 30 days to file a lawsuit after resolution of their administrative grievance. Failure to do so results in dismissal of the suit.

Richard James Randle, a Texas state prisoner, filed a state court lawsuit against prison employee D. Wilson, over the loss of various items of property. The complaint had originally been the subject of a prison system grievance. Papers attached to the lawsuit showed that Randle received written notice of the resolution of the grievance was on June 18, 1999. However, the lawsuit was not filed until September 10, 1999.

In 1995, Texas passed its own version of the Prison Litigation Reform Act which is partially codified at § 14.005 of the Texas Civil Practice and Remedies Code. § 14.005 requires that a prisoner who files a claim that is subject to the prison system's grievance system must first exhaust his administrative remedies, file with the court a copy of the written decision from the grievance system along with an affidavit stating when the grievance was filed and when it was resolved, and file the claim within 30 days of the resolution of the grievance. If ...

ADA Settlement at Washington Special Commitment Center

By Hank Balson

In December 2000, the Washington Department of Corrections (DOC) and the Washington Department of Social and Health Services (DSHS) settled a lawsuit brought by seven disabled residents of the Washington Special Commitment Center (SCC), the state's civil commitment facility to confine sex offenders who have been ...

Prisoners of the Census

Record numbers of urban people of color are now in prisons in rural areas _ where the census counts them as residents. Result? The prisoners' `share' of federal funds pegged to population counts will go to their keepers' hometowns.

Since April Fool's Day, prison guards have been slipping census forms into the cells of the nation's nearly two million prisoners. "Your answers are important," reads the accompanying letter from the US Census Bureau director. "The amount of government money your neighborhood receives depends on your answers."

Well, not exactly. Not in the case of prisoners.

The near-doubling of the prison population since the last census and a rural prison boom during the 1990s portends a substantial transfer of economic and political power from urban to rural America. That's because, due to a little-known census provision, prison inmates will be counted in the populations of the towns and counties in which they are incarcerated and not in their home neighborhoods. The result? Inner-city communities, from which large numbers of prisoner bodies are snatched, will lose out. The prisoner "share" of the nearly $2 trillion in federal funds tied to population counts distributed nationwide over the next decade will ...

Pro Se Tips and Tactics

The Supreme Court recently decided a case that could have an impact on prisoners who provide (free of charge) legal assistance to other prisoners. In this column, I discuss this new case and its implications.

In April, the Court unanimously decided that a prisoner does not have a special First Amendment privilege to give legal advice to another prisoner. Shaw v. Murphy, 121 S.Ct. 1475 (2001). Although this is obviously not a favorable development, the actual holding of the case is quite narrow, and it does not mean that prison administrators can ban prisoner-to-prisoner legal assistance.

Murphy was a prisoner in a Montana state prison who served as a law clerk, providing legal assistance to fellow prisoners. Another prisoner, Tracy, was infracted for assaulting an officer and asked that Murphy help him with his defense. Prison administrators denied this request because Tracy had been placed in maximum security and a prison rule prohibited prisoners of different security levels from meeting together. Apparently the other prisoner was assigned a different law clerk to help him. So, the prison did not have a rule saying that prisoners could not help each other; on the contrary, the prison allowed law clerks to ...

Leave to Amend Complaint Wrongly Denied

In a brief ruling, the court of appeals for the Eighth circuit held that a district court erred in dismissing a prisoner's lawsuit without giving him leave to add a retaliation claim to the complaint.

Jeffrey Williams, an Iowa state prisoner, was transferred to a different prison to attend a trial. He filed suit claiming prison guards refused to bring his medication for a skin condition, shackled him too tightly during the 90-minute ride to court and smoked in the vehicle.

The district court dismissed the suit sua sponte under 28 U.S.C. § 1915(e)(2)(B) as being frivolous. Williams filed a motion for relief, asking for permission to amend his complaint. The court denied, holding the claims were frivolous.

The court of appeals affirmed dismissal of the claims regarding excessive force, denial of the skin medication and smoke exposure. However, it held that Williams should have been allowed to amend his complaint to allege a retaliation claim against the two guards. It held it was fair to infer that Williams claimed he was treated poorly in retaliation for appearing at the court hearing. Therefore it was error for the lower court to dismiss the complaint before ...

Failure to Notify Prisoner of Hearing Violates Procedural Rights

The Supreme Court of Wisconsin found that when prison officials ignore their own rules requiring a prisoner to be notified of the date, time, and location of disciplinary proceedings against him, the prisoner's fundamental rights are violated and the disciplinary proceedings must be invalidated.

In February 1997, Ira Lee AndersonEl II was a Wisconsin prisoner charged with a major offense involving property transfers. He was given a written hearing notice which stated. "Hearing Officer or designee will notify you and your staff advocate of the date, time and place of your hearing."

Wisconsin Administrative Codes require the Hearing Officer to prepare a second written notice which must be given to the accused prisoner. This second notice must indicate the time and date of the hearing. AndersonE1 was never given this second notice. He was nevertheless brought before the disciplinary committee and found guilty of the property transfer charge.

In April 1997, AndersonEl was charged with the major offense of group resistance and given a written hearing notice. Again, he was not provided with the second written notice showing the time and date of the hearing. AndersonE1 was taken directly from temporary lockup to the hearing with no opportunity to ...

Bid to Regain Family Visits Fails in California

by W. Wisely

On December 29, 2000, the Ninth Circuit Court of Appeals upheld a district judge's order dismissing a lawsuit challenging prison regulations, which eliminated family visits for the majority of California prisoners. U.S. District Judge William Shubb had ruled that the hastily enacted regulations did not violate the ex post facto clause of the federal constitution.

In 1998, the Ninth Circuit found that the same regulation did not violate the Eighth Amendment's prohibition against the use of cruel and unusual punishment, according to The Sacramento Bee. Both decisions were unpublished, and cannot be cited as authority in another case. The state department of corrections claimed the family visiting program presented security concerns, and should be reserved for prisoners who will be released soon.

Former Governor Ronald Reagan established the family visiting program for California prisoners in 1968 in part to reward good conduct and to reduce violence. In the latter regard, the program was successful beyond the wildest expectations of prisoncrats. In fact, when the politically powerful guards union and their puppet victims' rights groups set out to destroy the family visiting program in 1991, it proved to be an unusual experience.

Unusual because the ...

Supreme Court Restricts ADA

The U.S. Supreme Court overruled an Eleventh Circuit Court of Appeals decision allowing disabled persons to sue State employers for money damages in federal court under Title I of the Americans With Disabilities Act (ADA). 42 U.S.C. § 12112. The 54 majority held that the U.S. Constitution Amendment Eleven shields nonconsenting states from suits for damages in federal court.

Patricia Garrett, nursing director at the University of Alabama, took a leave of absence from work to have breast cancer treatment. When she returned to work she was forced to take a lower paying job.

Milton Ash, a security guard for the Alabama Department of Youth Services, suffered from asthma and sleep apnea. He requested that his duties be modified so that he could avoid exposure to cigarette smoke, and that he be switched from the night shift to days to accommodate his apnea, to no avail.

Garrett and Ash filed separate lawsuits in an Alabama federal District Court. They sought money damages under the ADA, which requires State employers to make reasonable modifications to accommodate employee disabilities and abrogates the States' eleventh amendment immunity to citizen lawsuits under the ADA.

The District Court dismissed both cases in ...

Louisiana Prison Activist Freed

On February 8, 2001, Robert King Wilkerson, one of the prisoners known as the Angola 3, was released from the Louisiana State Penitentiary in Angola, Louisiana after spending twenty-nine years in solitary confinement for a crime he did not commit.

Wilkerson, 57, was convicted of the 1973 murder of Angola prisoner Grady Brewer despite the fact that another man confessed to and was convicted of the murder. After two prisoners who testified against Wilkerson, the only evidence presented against him, retracted their testimony and revealed it had been coerced by prison officials, the court of appeals for the Fifth circuit issued a ruling that almost certainly would have led to his release. See: Wilkerson v. Cain, 233 F.3d 886 (5th Cir. 2000).

In a face saving move, the state offered Wilkerson a plea bargain, which he accepted. Six hours later, to the cheers of a throng of family and supporters, Wilkerson walked out of Angola a free man.

He has pledged to dedicate his life to winning freedom from Albert Woodfox and Herman Wallace, the other two members of the Angola 3, and for all the other innocent men with whom he was incarcerated for the past three decades ...

Arbitrary Denial of Michigan Appeal Bond Enjoined

A federal District Court in Michigan has enjoined prison officials from incarcerating Joseph Puertas for drug convictions. Puertas obtained the preliminary injunction in a habeas corpus action under 28 U.S.C. § 2241 after state courts arbitrarily denied his request to remain free on bond while appealing his convictions.

On December 2, 1999, Joseph Puertas was convicted in state court of 6 counts of delivery of under 50 grams of cocaine and racketeering. The trial court denied his request for bond without explanation. The state appellate court reversed and granted bond, but the state supreme court reversed and denied bond. The process was repeated, and Puertas sought federal habeas relief the second time the state supreme court denied bond.

Under Michigan case law requests for appeal bond are considered in light of two factors: (1) the likelihood that the appellant will appear for court dates; and (2) the danger presented to the community by the appellant's being at large. Only the appellate court engaged in this analysis.

The District Court stated that once a state court has made a provision for appeal bonds, arbitrary denial of such bond violates the Fourteenth Amendment to the U.S. Constitution. The District ...

Costs Allowed Only by Court Order

Costs Allowed Only By Court Order

The Second Circuit Court of Appeals granted a pro se prisoner's Motion to Disallow Costs, holding that even under the Prison Litigation Reform Act, (PLRA), the assessment of costs remains within the discretion of the court and costs are allowed only by order of the court.

New York prisoner Richard Feliciano filed an action under 42 U.S.C. § 1983, alleging several violations of his rights stemming from a prison disciplinary proceeding. The district court granted summary judgment to prison officials, Feliciano appealed and the court of appeals affirmed.

Following the entry of judgment on appeal, prison officials filed a bill for costs in the amount of $54.32, representing the expense of printing fourteen copies of their brief. Feliciano filed "Objections to the Bill of Costs" which the court treated as a Motion to Disallow Costs.

The court observed that the rights and obligations of indigent prisoners who seek to prosecute an action in that status are governed by 28 U.S.C. § 1915, and that the PLRA amended that statute in numerous respects.

The court found that under § 1915(f)(2)(A) the assessment of costs remains discretionary. Courts have the ...

Second Circuit Holds Staged Perp Walks Unconstitutional, Grants Qualified Immunity

The court of appeals for the Second Circuit has held that staged "perp walks" are unconstitional violations of an arrestee's Fourth Amendment's rights. However, the Second Circuit also held that the law was not sufficiently established in September 1995 for a police officer to know such actions were unconstitutional. Therefore, it granted the police officer qualified immunity.

John Lauro was a doorman in New York City. A tenant asked Lauro to deliver his mail and water his plants while the tenant was on vacation. The tenant gave Lauro the keys and written authorization to enter his apartment, but, after talking with the building superintendent and discovering that Lauro was a suspect in several thefts in the building, the tenant hooked up a video camera and recorder which remotely transmitted to the building superintendent's apartment.

The video tape revealed Lauro entering the bedroom and opening several dresser drawers and cabinets; however, it did not show Lauro taking anything and the tenant found nothing missing. The tenant contacted various TV stations, attempting to sell the videotape and eventually sold it to Fox 5 News. He then contacted the police and gave them a copy of the videotape.

The police ...

$9.6 Million Awarded for Child Death in Illinois Jail

On October 19, 2000 a Cook County jury in Chicago, Illinois awarded $9.6 million to the estate of Joyce Hughes, who died from injuries she sustained after she was born in a cell in the Cook County Jail near Chicago on October 29, 1996.

Katrina Taylor, Joyce's mother ...

No Forfeiture Notice Violates Due Process

An en banc majority of the Third Circuit Court of Appeals held that due process is violated when notice of a pending administrative forfeiture proceeding is not sent directly to a pretrial detainee when the detainee's actual whereabouts can be determined. A panel of the Fourth circuit court of appeals reached the same conclusion.

Reginald D. McGlory was sentenced to life imprisonment for various drug and firearm offenses. At the time of his arrest, various items of his personal property were seized by the DEA. Prior to his trial; the DEA initiated administrative forfeiture proceedings. At all relevant times, McGlory remained in the custody of the U.S. Marshals Service.

The DEA provided notice of the proceedings by publishing it in a newspaper, and by certified mail, Return Receipt Requested, addressed to McGlory at his last known residence and to, or in care of, the U.S. Marshals Service at a courthouse McGlory was not confined at. McGlory claimed he never received a notice. That claim was not disputed by the DEA. After he was sentenced, McGlory moved unsuccessfully in the district court to recover the seized property.

The DEA argued that its practice was to send notice of ...

Montana Court Awards PLRA-Capped Attorney Fees Under Catalyst Theory

by Matthew T. Clarke

A federal district court in Montana has awarded attorney fees to prisoners in a Montana jail, even though the case was settled outofcourt, because the suit was the catalyst of change similar to the relief requested in the suit.

Harry Lozeau and other prisoners at the ...

Prisoner Defendants Entitled to Notice of Summary Judgment Requirements

The court of appeals for the Ninth circuit held that pro se prisoner litigants who are being sued are entitled to notice from the court on the requirements of summary judgment to ensure the prisoner adequately responds to the moving party's summary judgment motion.

In Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998)(en banc) the Ninth circuit held that pro se prisoner plaintiffs must be given notice by the court on the requirements of the summary judgment rule, Fed.R.Civ.P. 56. In this case, the court extended Rand to all pro se prisoner litigants, not just plaintiffs. The Securities and Exchange Commission sued Rob Nite, a federal prisoner incarcerated on fraud charges. The SEC's suit claimed Nite had violated various securities laws. The district court granted summary judgment to the SEC and entered a judgment of almost $4.7 million against Nite.

The appeals court vacated the judgment and remanded. The court noted that pro se prisoner defendants and plaintiffs alike are burdened with being imprisoned and without counsel. The court held the district court should not have proceeded to summary judgment in this case without ensuring Nite had been informed of the ...

Texas Prisoners Have Liberty Interest in Mandatory Supervision

The court of appeals for the Fifth Circuit has held that eligible Texas state prisoners have a liberty interest in release on mandatory supervision.

Dobber Graham Malchi, a Texas state prisoner, filed a federal habeas corpus action challenging a prison disciplinary decision, which resulted in 30-days loss of commissary privileges, 30-day cell restriction, and reduction in good time earning class. The district court granted habeas relief "finding that it was apparent from the face of the record that Malchi did not possess the (stolen) box of envelopes he was charged with possessing." The prison officials appealed.

The court of appeals for the Fifth Circuit held that, although a Texas prisoner has no liberty interest in release on parole, a Texas prisoner does have a liberty interest in release on mandatory supervision. In doing so, the court held that "there is a constitutional expectancy of early release created by Texas's mandatory supervision scheme...." Mandatory supervision release under that statute is required for eligible prisoners when their calendar time plus their good-conduct time equals the maximum term to which they were sentenced.

In this case, however, the court of appeals held that the effect of a reduction in good time earning ...

Guards Use Shotguns to Control Riot

Guards Use Shotguns To Control Riot

Guards used shotguns loaded with rubber pellets to break up a riot at Wallens Ridge Prison in Virginia. On Sunday December 3rd, in a deliberate violation of prison procedure, prisoners returning from lunch left the sidewalk and gathered on the recreation yard to protest prison conditions.

When confronted by guards the prisoners became vocal. DOC spokesman, Larry Traylor, said the men were yelling profanities but was unsure if they were voicing any specific complaints.

When guards displayed their weapons in a show of force, Traylor said the prisoners "grouped even tighter and began to run somewhat aggressively toward the staff in the yard." Guards fired warning shots and ordered the prisoners to lie down on the ground. When the protestors refused to comply the guards opened fire, hitting an undetermined number of people.

All of the prisoners involved in the riot were from Connecticut. DOC Director Ron Angelone said the protest was an attempt "to disrupt the normal operations ... with the goal of creating enough adverse publicity so as to increase pressure to return them to Connecticut."

Residents of Wallens Ridge have often complained about racism and brutality. Prisoner advocate Judi Walters says, "they ...

Unlawful Imprisonment Nets Ohio Man $25,000

In late 2000 ex-Ohio state prisoner Ricky Carter, 44, agreed to accept a $25,000 award to compensate him for being incarcerated over 13 months past his release date. Carter, who was due to be released March 15, 1998, was instead illegally held until April 28, 1999. Ohio prison official ...

Texas Prisoners Have Right to Appear at Civil Court Hearings

An appeals court in Texas has held that Texas prisoners have the right to appear-either in person, by affidavit, by depostition, by telephone, or by teleconferencingat court hearings in civil cases.

Richard Owen Taylor, a Texas state prisoner, filed a motion for contempt in state district court alleging that his former spouse had failed to comply with the terms of their divorce decree by refusing to inform him of significant information concerning the health, education, and welfare of his children. The divorce decree, which named Taylor's ex-wife as managing conservator and Taylor as possessory conservator, established his right to receive such information and the duty of the other parent to provide such information, pursuant to §§ 153.073(a)(1), (2) and 153.076(a), Texas Family Code. The motion for contempt stated that Taylor had mailed multiple requests for such information to his ex-wife and she had refused to answer them. Taylor also filed an application for a writ of habeas corpus ad testificandum, seeking to testify in a contempt hearing either in person or by videoconferencing.

The district court failed to rule on the motion or the application. Taylor filed an application for a writ of mandamus in ...

Washington Media Royalties Sentencing Condition Reversed

A Washington State Court of Appeals modified the sentence of childrapist Mary R. Letourneau by striking a requirement that inperson contact with her own children be supervised and lifting the prohibition on her profiting from any commercialization related to her crimes.

In early 1997, the King County (Seattle, Washington) Department of Public Safety learned that Letourneau, 35, a sixthgrade teacher and mother of four children, was having sexual intercourse with VF, a 13yearold student. Thereafter, the state charged her with two counts of rape of a child.

In August 1997, Letourneau gave birth to her fifth child who was fathered by the victim, VF.

After pleading guilty in November 1997, the court sentenced Letourneau to 89 months in prison, suspended, and 180 days in county jail. The suspended term was subject to Letourneau's continuing compliance with the provisions of her judgment and sentence including a prohibition on contact with VF, the victim.

Two weeks after her January 1998 release from jail, a Seattle police officer found Letourneau alone in her car with VF. Her suspended sentence was revoked and the court ordered her to serve 89 months in prison.

In October 1998, Letourneau gave birth to her sixth child ...

Prison Doctor Wins $654,471 in Retaliation Suit

Prison Doctor Wins $654,471 In Retaliation Suit


by John E. Dannenberg

Dr. Terence Allen, prison physician at Halawa (Hawai'i) prison, was awarded $111,000 in damages plus $543,360 in attorney fees/costs against prison officials who retaliated against him for speaking out on prisoner abuse at Halawa ...

Minnesota Prison Cited For Asbestos Infractions

A Minnesota prison received nine citations and was fined over $18,000 for violations involving cancercausing asbestos. The judgment levied against Faribault prison, in November 2000, by Minnesota Occupational Safety and Health Division, came as a result of disgruntled employees who say they have complained about the conditions for years. Minnesota OSHA reports that in the oneandahalf miles of tunnels connecting prison facilities "sections of the material were loose and the wrap was gone, exposing white fibrous insulation."

Guards are required to patrol the tunnels routinely. Alden Hoffmen, OSHA inspection supervisor, says, "the danger is that officers would travel through this area and if it was not repaired, the debris would be trampled on and carried throughout." Prison guard Scott Metcalf told OSHA officials that officers have complained for 10 years about the asbestos problem.

A single fiber of asbestos is capable of causing a variety of lung cancers. OSHA spokesman, James Honerman, estimates that about 40 people may have inhaled the dangerous material. The OSHA report criticized the prison's lack of effort to detect problems and fix them.

Warden Connie Roerich insists that repairs have always been made promptly. Deputy corrections commissioner, Dennis Benson blames the conditions on ...

Texas Prisoners May Challenge Discretionary Mandatory Release Procedures

The Texas Court of Criminal Appeals has held that Texas prisoners have the right to use a state habeas corpus action under Article 11.07, Texas Code of Criminal Procedure, to challenge the procedures used to deny them mandatory release.

David Lee Geiken, a Texas state prisoner, who had been sentenced to four years incarceration for securing execution of a document by deception, filed a state postconviction habeas corpus action, under Article 11.07, challenging the lack of due process the procedures denying him mandatory supervision release. The statute allowing a parole panel to override mandatory supervision release applies to all mandatory release eligible Texas prisoners whose offenses occurred after August 31, 1996.

Geiken's good conduct credits added to his calendar time equaled his sentence; howeverwithout allowing him to present any information on his behalf or even notifying him that his release eligibility was being reviewedthe parole panel overrode his mandatory release, finding that his good conduct credits do not accurately reflect his potential for rehabilitation and that he would endanger the public if released.

As a matter of first impression, the court held that the clear language in § 508.149(d), Texas Government Code, forbidding judicial review of ...

$3 Million Award Not Excessive in Prisoner Beating Death

The US Court of Appeals for the Sixth Circuit upheld a $778,000 verdict and $2.2 million punitive damage award against Shelby County, Tenn. deputy sheriff Rhett Shearin and life prisoner Jerry Ellis in a county jail beating death where Shearin simultaneously opened Ellis' cell door and adjacent prisoner ...

Suspicionless Maine Jail Strip Searches Set for Trial; Settles for $455,000

The court of appeals for the First circuit held that disputed fact issues required a trial to determine if a Maine jail's practice of strip-searching all arrestees was unconstitutional. Carmen Miller was arrested on a restricted warrant and for allegedly failing to pay a $235 fine. She spent 3 ...

PLRA-Based Garnishment Used to Collect Court Costs for Defendant

The court of appeals for the Fifth Circuit has held that the method for garnishing a prisoner's trust fund set forth in the Prison Litigation Reform Act (PLRA) and codified at 28 U.S.C. §§ 1915(f)(2)(A), (B) and (b)(2), may be used to collect costs awarded to prevailing prison officials.

Cleanard J. Johnson, a Louisiana state prisoner, filed an in forma pauperis suit against prison officials alleging he was exposed to mace sprayed on a prisoner in a nearby cell. The district court granted the prison officials' unopposed motion for summary judgment. The prison officials then filed a motion to garnish costs from Johnson's trust fund. The district court denied the motion and the prison officials appealed.

In a case of first impression, the Fifth Circuit held that the PLRA's mechanism for the collection of filing fees and other court costs may be used to garnish costs awarded a prevailing party. The district court erred when it stated that the mechanism was limited to use by the court. The Fifth Circuit held that, when costs are properly awarded and taxed against a prisoner in a federal district or appellate court, the prison may ...

Indiana Jail Settles Strip Search Case for $300,000

Indiana Jail Settles Strip Search Case For $300,000

On June 6, 2000 Harrison County, Indiana, Jail officials agreed to settle a class action lawsuit involving nearly 200 people who sued in an Indiana federal district court after they were illegally strip searched by jail officials. The settlement totaled $300 ...

News in Brief

AL: In December 2000, Montgomery jail guard Eileen Mayfield was accused of coercing five male prisoners into giving her sexual favors in exchange for candy, snacks and cigarettes.

Brazil: On April 12, 2001, 368 prisoners at the Carumbe prison in Cuiaba took 150 visiting family members hostage to demand the firing of abusive prison guards. The uprising ended on April 15, 2001, with the killing by other prisoners, of the uprisings six-prisoner leaders.

Brazil: On April 14, 2001, 150 prisoners escaped from a Sao Paulo prison and carjacked dozens of cars to make good their escape into rush hour traffic. The escapees exchanged gunfire with police and took at least one guard hostage. At least a dozen escapees were recaptured the same day.

CA: On April 19, 2001, federal prosecutors indicted 13 alleged members of the Nuestra Familia prison gang and charged them with murder, robbery, conspiracy and drug related crimes. The indictments end a three-year, $5 million undercover investigation into the NF by federal law enforcement officials. Prosecutors claim five defendants who are already in prison, orchestrated 5 murders between March 1997, and April 1999. The indicted are: Rico Garcia, Ceasar Ramirez, Henry Cervantes, Jacob Enriquez, Vidal Fabela, David ...

Harsh Hitching Post Treatment States Claim

An Alabama federal district Court ruled state prisoner Toby Fountain stated a cruel and unusual punishment claim under 42 U.S.C. 1983 for being tied to a hitching post for 9 hours. Alabama DOC authorizes the use of a "restraining bar," that is better known as the "hitching post," to punish prisoners who refuse to work or disrupt their work squad. It is a horizontal bar 57 and 45 inches from the ground to hitch prisoners of various heights.

Prior to hitching a prisoner, the health care unit must be called to check if the prisoner has medical problems that would inhibit work. There is to be an hourly opportunity to use the bathroom. Despite suffering a back problem that caused Fountain severe pain, he was assigned to the Farm Squad at Staton Correctional Facility.

On May 2, 1994, Fountain was unable to keep up with his squad. Guard Daniel Talley observed Fountain's physical difficulties. Fountain explained his medical problems, that he was up at sick call all night, and was given a laxative by medical staff. Talley radioed Lt. Jesse Smith requesting Fountain be hitched. Smith came and heard Fountain's medical explanation. Smith marched Fountain to ...

Ten Percent Prison Commissary Surcharge in New Jersey Upheld

The Superior Court of Appeals of New Jersey has held that the 10% surcharge on purchases from prison commissaries in New Jersey is constitutional.

Paul Auge, a New Jersey state prisoner, filed suit in state court challenging the imposition by the New Jersey Department of Correction (DOC) of a 10% surcharge on prison commissary purchases.

The surcharges were made in conformity with Chapter 396 of the Laws of 1997, N.J.S.A. 30:415.1, which mandates that all county and state correctional facilities collect a 10°% surcharge on commissary purchases, exempts such purchases from the usual 6% sales tax, and directs that the money collected from the surcharge be used to compensate victims of violent crimes.

Auge alleged that the surcharge was an ex post facto law and subjected him to double jeopardy because he had been convicted of and punished for a crime which occurred before the enactment of the legislation mandating the surcharge.

The court held that the surcharge was not a criminal punishment and therefore could not be an ex post facto law and its imposition could not violate the Double Jeopardy Clause.

Auge also alleged that the surcharge violated state and federal due process ...

Statutory Authority Not Required to Levy Housing Costs

Statutory Authority Not Required To Levy Housing Costs

The Third Circuit Court of Appeals held that prison officials can levy housing cost liens without statutory authority. Prisoner Leonard G. Tillman filed a 42 U.S.C. §1983 action challenging the Lebanon County Correctional Facility's $10.00 daily assessment fee.

During two periods of incarceration the facility took half of all funds Tillman received. Tillman accumulated a debt exceeding $4,000, which was turned over to a collection agency after his release.

In its analysis the Court noted that several states statutorily authorize charges against a prisoner's wages or inmate account. However, in this case the Court found the Cost Recovery Program was duly promulgated, not by the State, but by the County prison board. The program was outlined in the prison handbook, thus Tillman had sufficient notice.

In approving the legality of the program the Court drew an analogy with the numerous decisions that permit recovery of costs for medical services. As with the decisions on medical care, the county was not denying Tillman food, housing and clothing if he was unable to pay.

He would only incur a civil lien. The Court stated that Tillman had an ...

Continuing California's Prison Interview Ban

by W. Wisely

For the second year in a row, California Governor Gray Davis vetoed a bill aimed to restore news media access to prisoners. On Monday, October 2, 2000, Davis vetoed the bill, sponsored by the Society of Professional Journalists, which would've allowed reporters to interview specific prisoners. Davis said he killed the bill, which enjoyed strong bipartisan backing, out of sympathy for crime victims and to maintain order within the largest gulag in "the free world," according to an online interview posted at APBnews.com.

"The purpose of incarceration is punishment and deterrence," Davis parroted in a prepared statement. "It is not to provide additional celebrity to convicts, many of whose criminal acts were brutal and violent, thereby causing further pain to the victims and their loved ones." It was not immediately clear how the slice of pizza that triggered one of the first 25-yearstolife sentences in the state would be shielded from unwanted publicity thanks to the Governor's veto.

Under current prison regulations, reporters are not allowed to interview specific prisoners without prior permission. And, the Department of Corrections seemingly gives out such permission only in cases guaranteed to fit the political agenda of Davis ...

 

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