Prison Legal News:
View as PDF
Volume 12, Number 7
In this issue:
- The Strangest of Bedfellows (p 1)
- From the Editor (p 4)
- Class Action Medical Neglect Suit Filed Against CDC (p 5)
- Wyoming Prison Officials Settle Poisoning and Medical Suits for over $200,000 (p 6)
- Pelican Bay Guard's Conviction Upheld (p 7)
- Virginia DOC Cuts Ties with CMS (p 8)
- Nineteen Killed in Brazilian Prison Rebellion (p 8)
- PLRA's Attorney Fee Cap Held Unconstitutional (p 9)
- New Jersey Prisoners' Disciplinary Convictions Reversed on Due Process Violations (p 10)
- CCA Medical Cost-Saving Contract Unconstitutional (p 10)
- Kentucky Judge Orders Hepatitis C Treatment (p 11)
- $235,000 Awarded to CCA Prisoner in Medical Suit (p 12)
- PLRA Limits Guard's Liability for Prisoner's Attorney Fees (p 12)
- BOP Imposter Scheme Discovered (p 13)
- Book Review: Capital Crimes (p 14)
- Washington Prisoners' Out-of-State Transfer Upheld (p 14)
- Defendants' Attorney Fee Award Must Be Supported by Record (p 15)
- PLRA Physical Injury Rule Applies to ADA Claims (p 15)
- Lack of "Volitional Control" Required for Civil Commitment of Kansas Sex Offenders; S.Ct. Grants Review (p 16)
- Massachusetts Disenfranchises its Prisoners (p 16)
- New Jersey Detainees Entitled to Medical Care (p 16)
- Arkansas Guards Indicted for Shocking Prisoners (p 17)
- Texas Prisoner Takes Hostages (p 17)
- Court to Determine if Louisiana Must Treat Male and Female Prisoners Equally (p 18)
- Detainee Entitled to Dental Care (p 18)
- New York Prisoner Wins $7,200 in Negligence Suit (p 18)
- $9.5 Million Awarded in Prisoner Van Fire Death (p 19)
- New York City Settles Black Panther Frame Up Suit for $890,000 (p 20)
- Trial Required in Arizona Uprising Suit (p 20)
- $1.4 Million Awarded to Raped Alaska Women Prisoners (p 21)
- Kansas Conditional Release Is Mandatory (p 21)
- Florida Religious Name Change Upheld (p 22)
- Non-Physical Damage Claims Barred Until Released (p 23)
- Retaliatory Infraction Creates Heck Exception (p 24)
- New York AG Turns on Client (p 24)
- Retaliation Claim Merits Factual Resolution (p 25)
- Private Jail Settlement Not a Consent Decree under PLRA (p 26)
- Constant Illumination States Eighth Amendment Claim (p 26)
- Georgia Parole Law May Violate Ex Post Facto (p 26)
- Oklahoma Good Time Rule Violates Ex Post Facto (p 27)
- BOP Medical Personnel Absolutely Immune from Suit (p 28)
- Book Review: The Perpetual Prisoner Machine: How America Profits From Crime (p 28)
- Trial Required in Oregon Law Clerk Retaliation Suit (p 29)
- Preliminary Injunction Granted in TB Hold Case (p 29)
- $250,000 Award to Beaten Texas Prisoner Upheld (p 30)
- Summary Judgment for Private Physician Reversed (p 30)
- News in Brief (p 32)
The two sides in this unlikely marriage are the politically savvy prison guards' union known as the California Correctional Peace Officers Association or CCPOA _ and three of the wealthiest Indian gaming tribes in the state: the Pechanga Band of Luiseno Indians, the Morongo Band of Mission Indians, and the Viejas Band of Kumeyaay Indians.
This political joint venture is intriguing for a number of reasons. What common ground would cause two such seemingly disparate interests to join forces? And what impact will the combined characteristics of the alliance have on California politics?
The merger brings together CCPOA's wellestablished reputation as one of the shrewdest players in state elections with the raw, relatively inexperienced, but substantial money power of the ...
In 1988, a Chino prison guard was killed when a juvenile prisoner he was escorting to a Los Angeles hospital for medical treatment tried to escape. Like other prison guards killed in the line of duty, the veteran officer left behind a grieving family. But unlike the others, his death had an unintended political consequence. It wound up bringing together two people who, 12 years later, helped create one of the most intriguing and powerful alliances in California politics.
A reminder to our prisoner readers, if prison officials censor your PLN subscription please let us know because PLN is usually not notified of the censorship unless the subscriber tells us. If your PLN subscription is censored you should exhaust whatever administrative remedies you have and send PLN copies of the responses you receive so we can attempt to resolve the problem if your efforts fail.
The last several months have seen a great deal of activity in PLN's Seattle office as we rebuild our operations in the wake of our former office manager's departure. A lot of work has gone into restructuring and revamping PLN's business operations. Our executive director will report on that in greater detail in the next issue of PLN.
We are pleased to announce that an anonymous PLN supporter has renewed last year's $15,000 matching grant for the year 2001. Under the terms of the grant, the donor will match all donations from non-prisoners, dollar for dollar, up to $500, and donations ...
With this issue of PLN we are back on our normal publishing schedule. Readers should be receiving their copy of PLN around the first of the issue month.
The case, Plata v. Davis, COI1351 MMC, seeks injunctive relief _ an order that the CDC improve its medical care system to meet the constitutional standard and monetary damages for the nine named plaintiffs. Once the case is certified as a class action the injunctive relief will apply to all state prisoners incarcerated in California's 33 prisons.
Marciano Plata, the lead named plaintiff, has had repeated problems obtaining adequate medical treatment, compounded by the medical staff's failure to provide a Spanishlanguage interpreter. In 1997 Plata fell while working at his prison job, injuring his right knee, back and head. An MTA examined him but did not provide any medical treatment or a doctor's referral, and Plata was then forced to walk unassisted back to his cell. He later fell two more times after repeated, unsuccessful attempts to obtain treatment for his painful injuries.
Almost two years after his original injury Plata finally had knee surgery. After his discharge from the hospital the same day he was forced to walk unaided back to his housing unit and as a result suffered severe pain and inflammation of his foot. Since the surgery Plata has not received any postoperative care or physical therapy, and he continues to suffer serious problems.
Ray Stoderd, another plaintiff, was prescribed methadone to ease his AIDS related pain. Despite the fact that methadone is a physically dependent medication which needs to be gradually discontinued, prison doctors at least eight times abruptly discontinued that treatment.
As a result Stoderd suffered withdrawal, an extremely painful condition, which involves uncontrolled shaking, vomiting, insomnia, headaches, dizziness, hot flashes, sweats, chills and loss of appetite. Inadequate pain management is a common complaint voiced by prisoners.
Plaintiff Paul Decasas has seizure disorder, which the CDC has continually failed to treat and monitor adequately. He was transferred from a medical facility even though he was still having frequent seizures. It is sometimes very difficult for him to obtain bite sticks even though he is always at risk for having a serious seizure and bite through his tongue
These plaintiffs represent only a few of the thousands of cases of substandard medical care to which prisoners are subjected. The lawsuit alleges that MTAs (the "gatekeepers" for prisoners' access to medical care) are inadequately trained to perform their duties and have conflicting custodial responsibilities, there are not enough qualified medical staff, medical records often are disorganized and incomplete, medical screening is inadequate, there are lengthy delays in accessing care, including delays to see a primary physician, to see a specialist, to obtain medical testing and to obtain treatment and that delays are compounded when prisoners are transferred to new institutions.
The complaint also claims that there are frequent failures to provide prisoners with medical care altogether, that emergency response is poor, that guards frequently interfere with the provision of medical care, that quality control procedures are deficient, that there is a lack of established protocols for dealing with chronic illnesses such as diabetes, heart disease and particularly HIV and Hepatitis C, that the CDC is unable to recruit sufficient, competent medical staff and to retain hired staff, that necessary medical care is often denied based solely on a prisoner's expected release date, and that the defendants lack sufficient knowledge about the medical care system to properly monitor and improve the delivery of medical care.
The Prison Law Office has been litigating class action prison conditions lawsuits for over twenty years; including successfully challenging the CDC's treatment of prisoners with disabilities and mentally ill prisoners and inadequate medical care at individual facilities.
As part of the office's current campaign to improve the entire CDC medical care system, in March 2001 the office filed suit in state court alleging that the CDC is in violation of a state statute which requires medical facilities that provide acute, inpatient care to be licensed.
The Plata complaint is available on the Prison Law Office website (www.prisonlaw.com) as a PDF file. California state prisoners with medical care complaints may write to the Prison Law Office at General Delivery, San Quentin, CA 94964. Because resources must be devoted to litigating the class action the office typically cannot provide individual assistance, but is gathering evidence from prisoners to present in the lawsuit.
Less than two months after the lawsuit was filed California attorney general Bill Lockyer asked the legislature for $44.1 ...
Alleging that the California Department of Corrections (CDC) violates the Eighth Amendment protection against cruel and unusual punishment by providing seriously inadequate medical care to state prisoners, the Prison Law Office and the law firms Pillsbury Winthrop and McCutchen Doyle Brown & Enersen filed a class action lawsuit on April 5 2001 in the United States District Court for the Northern District of California in San Francisco.
In August 2000, Wyoming officials agreed to settle two consolidated cases for $200,000 in damages, costs, and attorney fees. The cases were filed in a Wyoming federal District Court by the survivors of two prisoners who died ...
Wyoming Prison Officials Settle Poisoning And Medical Suits for over $200,000
Jose Garcia was a guard at California's Pelican Bay prison. With his supervisor, Mike Powers, Garcia plotted with prisoner shotcallers to have convicted child molesters, sex offenders, and informants stabbed or beaten. The conspiracy ran from January 1994 to September 29, 1995, when Garcia was relieved of duties. He was found guilty by a jury of conspiracy to assault and possession of alcohol in prison.
In People v. Garcia, 84 Cal. 4th 316 (2000), the state appellate court upheld the conviction. Garcia provided information to the shotcallers targeting certain prisoners for assault. He then gave alcohol and other gifts to the prisoners responsible for setting up and carrying out the beatings and stabbings.
Unfortunately for Garcia, his once shotcaller friends turned on him at trial. The resulting record offers a rare glimpse into the relationship between prison guards and the prisoners who hold themselves out as leaders, maintaining their positions through treachery, collusion and violence.
"[I]f you were to whack somebody that didn't have it coming ... it would fall back on my head and it would decrease my power base," said Bacos, a selfdescribed leader for the whites at Pelican Bay's A Facility ...
by W. Wisely
by Robert Durkee
After numerous allegations of inadequate medical care, pending prisoner lawsuits and nearly $1 million in state imposed fines, Virginia Department of Corrections decided to sever at least two of its contractual ties with Correctional Medical Services. "Starting Feb. lst  the state will take over inmate medical treatment from Correctional Medical Services at Red Onion and Wallens Ridge prisons", corrections spokesman Larry Traylor said.
In combination with dozens of prisoner lawsuits, CMS has been fined $900,000 for noncompliance with state contract by prison officials. According to a report by the state auditor of public accounts, CMS did not have a dentist at Wallens Ridge for more than three months or a psychiatrist at the Red Onion for more than two months.
According to The Associated Press, the auditor concluded it might be cheaper for CMS to absorb penalties than comply with the contract. Asked what role that report played in the decision to end the relationship with CMS, Traylor said only that the department decided to make a change because the current contract expired January 31, 2001.
CMS, a St. Louisbased company, is the nation's largest provider of prisoner ...
Virginia DOC Cuts Ties With CMS
During the 17-hour revolt, 19 prisoners were killed and 77 were wounded; four police agents were also reportedly wounded by bullets. The uprising began at Carandiru, the largest prison in the state, with a [prison] population of about 8,000. Prison system director Nagashi Furukawa responded to the rebellion by announcing the suspension of family visits. On Feb. 20, after the first series of rebellions had been halted, a new protest broke out at a prison in Pirajui, also in Sao Paulo state.
It is unclear exactly how many of the 19 prisoners who died during the uprising were killed by police and how many by other prisoners. According to eyewitness accounts and press reports _ including television footage of the incident _ three prisoners were shot in the back by police at Carandiru.
On Feb. 20, Human Rights Watch issued a statement calling ...
On Feb. 19, 2001, Brazilian authorities said they had regained control of 29 prisons in Sao Paulo state where some 25,000 prisoners had taken some 7,000 hostages in an apparently coordinated rebellion during the Sunday visiting day on Feb. 18. Some of the hostages were guards, but most were family members visiting the prisoners.
A federal district court in Wisconsin held that the Prison Litigation Reform Act (PLRA) cap on recovery of attorney fees in successful prisoner civil rights complaints violated Fifth Amendment equal protection principles and determined that $80,000 in attorney fees was proportionately related to the $40 ...
by John E. Dannenberg
Andrew Daley, a prisoner at East Jersey State Prison, was charged with planning an assault on a prison guard. At his disciplinary hearing, prison officials based their case almost entirely on the statement of a confidential informant (CI). Only a summary of that statement was provided to Daley. It read, in part. "Daley was heard by a CI to state that he was planning an assault on Lt Pascucci at East Jersey State Prison." Daley was found guilty based on that summary.
On appeal, a Confidential Appendix to Daley's file was furnished to the Superior Court. The appendix, not available to Daley at his disciplinary hearing, revealed that the CI had quoted another prisoner, not Daley, as making the threat against Pascucci.
The court found the basic notice requirement, a critical due process guarantee, was clearly violated; Daley was not given a factual statement of the charges against him and was therefore denied an opportunity to meet the charge. The court reversed Daley's ...
The Appellate Division of the New Jersey Superior Court reversed two separate prison disciplinary matters after finding that two state prisoners were denied due process protections limiting the use of confidential informants and confidential information.
During a 21-month period ending in 1997, Anthony Bowman, a prisoner at CCA's South Central Correctional Facility (SCCF) saw medical providers 126 times. Although he begged for treatment for his sickle cell anemia for days before his death, he received none but was eventually transferred to a Nashville hospital where he died only hours later. By not placing Bowman in the hospital, the doctor substantially increased his compensation.
Patricia Bowman, Anthony's mother, sued CCA, SCCF warden Devin Myers, the contract doctor, Robert B. Coble, Nashville Memorial Hospital and one of its doctors, Donald Boatwright. The claims against the last two defendants were dismissed. After more than three years of litigation, the case went to a two-week jury trial. Patricia Bowman testified that her son told her he thought he was going to die, he'd never been this sick before. He said, "Mama, they think I'm kidding. They don't think I ...
A Tennessee federal district judge as found an incentives contract between the Corrections Corporation of America (CCA) and a private doctor unconstitutional and must be stopped. The contract provided for financial incentives for the physician to reduce costs, which motivated him to reduce medical services.
Michael Paulley, an Army veteran, sought treatment for hepatitis C from the KDOC but was refused, despite Paulley's Veteran's Administration (VA) doctor, liver specialist Cecil Bennet, claiming that without treatment Paulley had a 5050 chance of living to his parole eligibility date of 2004. Additionally, it would have cost the KDOC nothing since the VA was willing to pay for the treatment.
In March of 1999, Paulley filed a §1983 action seeking injunctive relief for treatment plus compensatory and punitive damages. Paulley also moved for class certification. In January of 2000, a federal magistrate found that the KDOC's real motive for denying Paulley treatment was to avoid having to pay to treat other patients with hepatitis C. On March 30, 2000, the District Judge agreed that ...
A federal court in Kentucky has ordered the Kentucky Department of Corrections (KDOC) to provide hepatitis C treatment to a prisoner suffering from both hepatitis C and cirrhosis of the liver. In response, the KDOC has implemented a treatment plan whereby up to 1,000 prisoners may receive treatment. This is likely the first case in potentially the next wave of prisoner medical litigation. The KDOC did not appeal this judgment.
In 1998 Degan's nose and jaw were broken in ...
On March 23, 2001, a federal jury in Memphis, Tennessee, awarded Tennessee state prisoner Charles Degan $235,000 in damages in a medical neglect suit against Corrections Corporation of America (CCA), the world's largest private, for profit, prison company.
by John E. Dannenberg
The US District Court, SD Ohio ruled that the Prison Litigation Reform Act's (PLRA) 150% cap restricting a prevailing prisoner plaintiff's attorney fees limited only how much the defendant was liable to pay, not ...
PLRA Limits Guard's Liability For Prisoner's Attorney Fees
After pleading guilty to a charge of receiving proceeds from a bank robbery, Dexter Mathis was sentenced in federal court to 20 months in prison on Feb. 23, 1999. U.S. District Judge Jack Camp allowed Mathis to remain free on bond until June 7, 1999 when he was supposed to surrender himself to U.S. Marshals in Atlanta.
Apparently. Mathis had a change of heart and decided he didn't want to do his time. So, instead of turning himself in on June 7, Mathis hired an imposter to take his place. Mathis promised Pierre Carlton money while he was in prison and all the crack cocaine Carlton could smoke upon release.
The plan almost worked. Carlton served 15 months behind bars and was a model prisoner according to BOP officials. He, as Mathis, earned a GED and kicked his drug habit while in prison. After serving time in a secure facility Carlton was put on a bus on Sept. 27 and ordered to report ...
For more than a year, the BOP had an imposter in its midst officials discover last October. One man paid another to do his time and the BOP remained clueless until the imposter escaped.
Review by Allen N. Huxley
Crime dominates the news, arouses fear and anger among the mass media-consuming public, and oils the rhetorical machinery of opportunistic politicians. Yet for all of the moralizing, finger pointing, and "get tough" policy making, few pause to examine the deeper question of what it is about the American model that has catapulted "crime" to such prominence.
Author George Winslow uses Capital Crime to expose how the "law and order" approach to crime had its roots in the Industrial Revolution, with the need to subjugate workers and allow big business to flourish unfettered by social concerns.
Winslow details how racism, fear of immigrants, and media propaganda were all developed as tools to further the interests of government and industry. He traces the progression of this model to modern times, where billions are spent annually in socalled crime fighting efforts, while the underlying causes are virtually ignored.
Winslow explores how crime does not mysteriously appear out of nowhere, but is actually the inevitable result of economic practices and public policy choices that have evolved over the last 200 years. The amount of ground Winslow is able to cover ...
by George Winslow, Monthly Review Press (1999), 360 pages
In the months to follow, DOC sent some 150 more prisoners to the facility. DOC decided the transfers were necessary in order to alleviate overcrowding until such time as its new facility, the Stafford Creek Corrections Center, was operational. Overcrowding became critical when DOC surrendered 260 beds to the Special Commitment Center at McNeil Island Corrections Center that same year.
Many prisoners confined at the private facility filed Personal Restraint Petitions (PRPs) directly in the supreme court, arguing that DOC lacked statutory authority to transfer them. Three of these PRPs were consolidated and counsel was appointed to represent the prisoners. DOC responded that it had statutory authority to place the prisoners in the private facility under a statute which grants the Secretary of DOC broad powers to effect transfers. See: RCW 72.68.010.
Additionally, DOC argued that an amendment to RCW 72.68.010 clarified any ambiguity concerning the DOC ...
The Washington Supreme Court held that the Department of Corrections (DOC) possessed statutory authority to transfer nearly 400 prisoners to an outofstate, private prison. In March of 1999, DOC transferred 254 prisoners to the Correctional Services Corporation run Crowley County Correctional Facility in Olney Springs Colorado [PLN, June 1999].
The defendants sought $27,593 in attorney fees for defending the suit, which the court granted. The appeals court reversed and remanded. 42 U.S.C. § 1988 allows for the award of attorney fees to prevailing parties in civil rights actions. In Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173 (1980) the court held that attorney fees could be assessed against losing pro se prisoner litigants if the underlying action was totally groundless. The court noted that attorney fees should rarely be awarded against a pro se prisoner unless the suit was "vexatious, frivolous, or brought to harass or embarrass the defendant."
The appeals court in this case held that the absence of a basis for the award required reversal. To support an award ...
The court of appeals for the Tenth circuit held that district courts who award civil rights defendants attorney fees must explain the basis for the award. G. Sam Houston is a Colorado prisoner convicted of assorted sex crimes against children. After pleading guilty to the criminal charges against him, Houston filed a civil rights action against the social workers and police who investigated the child rape charges. The district court dismissed the suit.
Cassdidy alleged that the IDOC intentionally discriminated against him by denying him access to various programs, facilities, services, activities and benefits enjoyed by nondisabled prisoners. His principal allegations are denial of meaningful access to or use of the law library, recreational areas, educational programs, job assignments, vocational training, other programs and training, and financial aid for education.
Cassidy sought damages to compensate him for: (1) emotional and mental harm, embarrassment, and humiliation resulting from being unable to pursue activities as the nondisabled; (2) loss of opportunity to enjoy early discharge from prison, or the chance of a pardon or clemency based on efforts to rehabilitate himself; (3) loss of participation in and advantages of activities nondisabled prisoners had access to and loss of freedom of movement and social contact; (4) diminished quality of life; and (5) loss of access ...
The Circuit Court of Appeals for the Seventh Circuit has held that the Prison Litigation Reform Act (PLRA) rule of requiring physical injury applies to damage claims brought under the American with Disabilities Act (ADA) and Rehabilitation Act of 1973. Richard Cassidy, a blind Indiana prisoner, brought suit under 42 U.S.C. §1983 against the Indiana Department of Corrections (IDOC).
The Kansas Supreme Court has held that the Due Process Clause of the Fourteenth Amendment requires proof of a condition affecting "volitional control" before a sex offender can be civilly committed under Kansas' Sexually Violent Predator Act ("Act"). Volitional control is the capacity to exercise choice or will Thus the Court held that the state must prove a sex offender suffers from a mental abnormality or personality disorder, which prevents the offender from controlling his or her urge to reoffend.
In reaching this conclusion, the court recognized that the Act, in and of itself, does not require such a finding. However, after reviewing the US Supreme Court's decision in Kansas v. Hendricks, 521 U.S. 346 (1997) the Kansas Supreme Court determined that civil commitment under the Act violates the Due Process Clause in the absence of a finding that the offender suffers from volitional impairment rendering him dangerous beyond his control. Because the jury in this case had not been so instructed, the court ordered a new trial. See: In Re Crane, 7 P.3d 285, Kansas (2000).
It is important to ...
Lack of "Volitional Control" Required for Civil Commitment of Kansas Sex Offenders; S.Ct. Grants Review
by Peter Wagner
On November 7, 2000, by a 2 to 1 margin, Massachusetts disenfranchised its prisoners with a constitutional amendment called Question 2. Question 2 marked the first time that the Massachusetts constitution had been amended to take away rights from a group of people.
At this point, Maine and Vermont are the only states which allow prisoners to vote. Thirteen states bar felons for life and many other states also restrict the voting rights of those on parole or probation.
Massachusetts is not alone in the reactionary movement to disenfranchise prisoners. In 1998 Utah voters stripped prisoners of the right to vote. Litigation challenging felon disenfranchisement for felons no longer in prison is underway in Pennsylvania, Florida and Washington state. In 2000 the New Hampshire supreme court held that prisoners in that state had no right to vote. So far litigation challenges to felon disenfranchisement have been unsuccessful, as they have not withstood appellate review.
Massachusetts Disenfranchises Its Prisoners
Dana Andrews, a former prisoner of the Camden County Corrections Facility, (CCCF), sued Correctional Medical Services, (CMS), a private contractor providing medical services to CCCF prisoners, and numerous other defendants, alleging deliberate indifference to his need for treatment of a life threatening infection which nearly caused his death.
Andrews was held in CCCF on misdemeanor drunken driving charges from June 13, 1996 to June 21, 1996. No medical problems were observed during his initial medical screening. But five days after his admission, staff noted that Andrews was suffering from "flu symptoms." A memo was forwarded to the CMS physician, but he claimed not to have received it.
Andrews developed a severely infected toothache, which rapidly reduced him to a sweating, weakened state. He requested medical attention but did not receive medical care of any sort.
Following Andrews' release from custody on June 21, 1996, his mother took him to a hospital emergency room, where he was promptly admitted and diagnosed with sepsis ...
A federal district court in New Jersey held that material issues of fact precluded summary judgment on a former prisoner's claim that he was denied adequate medical care. The court also rejected defendants' claim of qualified immunity.
On February 7, 2001, criminal charges were filed in a federal District Court in Arkansas against 6 former guards who beat handcuffed prisoners and shocked them with a stungun and a cattle prod.
On January 7, 1998, two reportedly unruly prisoners at the Cummins Unit, an Arkansas prison, were handcuffed and taken to the prison captain's office. Lt. Kenneth C. Bell ordered them beaten and shocked with a stungun and a cattle prod on their buttocks and testicles. Sgt. Loren D. Burrer threatened to cut one prisoner with a knife. On January 24, 1998, a similar incident occurred with a third prisoner. The prisoners were not named in media reports.
An F.B.I. investigation was sparked when one prisoner formally grieved the incident. The investigation resulted in 6 federal indictments for assault. The guards indicted were Bell and Burrer, along with Charlie Wade Jr., Percy Sergeant Jr., Neica Threet, and Glen Jackson. Civil rights actions have also been filed against the guards.
Bell is now a Lincoln County sheriff's deputy. Jackson is serving 6 years for attempted murder. Burrer, Wade, and Sergeant are laborers, and Threet is a postal worker.
Arkansas Guards Indicted For Shocking Prisoners
Nelson was a prisoner at Smith unit in Lamesa TX when he was transported to UMC for treatment of internal bleeding caused by swallowing a can opener. He was placed in a room with a prison guard and an armed guard was stationed outside the door. When Nelson complained of the cold he was given a blanket. Under cover of the blanket Nelson used a hidden key to remove his handcuffs. Once freed, he produced the fake gun he had hidden in his jump suit. The guard in the room swung his nightstick at Nelson and missed.
Danny Goeller and his wife Linda were in the room next to Nelson when, according to Mrs. Goeller, he "ran into our room putting a ...
On January 5th at approximately 10:30 pm a Texas prisoner used a fake gun to back down an armed guard and hold an entire SWAT team at bay for over an hour. Dekenya Nelson used a hairbrush, soap, a deodorant bottle, and pages from the Bible to make a convincingly reallooking weapon. For almost 90 minutes Nelson also held two University Medical Center nurses hostage. During that time he is alleged to have sexually assaulted both women.
Roger D. Yates, Travis Carter, and George McGuffey are Louisiana state prisoners who filed a civil rights suit under 42 U.S.C. §1983 against Richard Stadler, the Secretary of the Department of Public Safety and Corrections, alleging Stadler implemented policies intended to treat female prisoners more favorable than males.
Specifically, the prisoners alleged that, under Stadler's policies, female prisoners do not have to labor in agricultural fields, may earn assignment to private or semiprivate rooms through participation in a merit program and are confined in air conditioned units _ privileges male prisoners are not allowed. The prisoners also allege that female prisoners are provided with a standard of living far above the poverty level whereas male prisoners, pursuant to La.Rev.Stat. 15:738, are limited to the state poverty level standard.
The district court dismissed the suit, stating that the male and female prisons "are geographically and structurally dissimilar" and therefore the male and female prisoners were not ...
The court of appeals for the Fifth Circuit has held that the issue of whether Louisiana violated the Equal Protection Clause by treating female prisoners more favorable than male prisoners cannot be resolved at the motion to dismiss stage.
A New York federal district Court ruled the Bureau of Prisons (BOP) must provide detainee Melvin Lloyd Richards immediate dental care or release him.
Richards was remanded to custody after convicted by a jury on January 17, 2000. Thereafter, Richards moved for bail, which was denied. He subsequently moved the Court to order the BOP to provide him needed dental care or release him.
On June 21, 2000, the Court held a hearing and found Richards was in urgent need of dental care. Richards had three problem areas. First, he had a loose bridge in the upper right portion of his mouth that requires removal, replacement, and surgery. Second, he had recently broken off two teeth in the upper front of his mouth that requires replacement. Third, in the lower left portion of his mouth, a bridge had been removed and work was being done on implants when Richards was remanded to custody.
A crown had been made by Richards treating dentist in Nevada but not attached. Richards had also suffered two mouth infections since his conviction. The BOP argued Richards was only entitled to "necessary" and "acceptable" treatmentextraction and a denture.
The Court found ...
Detainee Entitled To Dental Care
On January 31, 2000, the Court of Claims in Binghamton, New York awarded $7,200 in damages to Kenneth Edmonds, who was injured in an accident while he was working on a prison work crew.
On July 8, 1994 Edmonds was ...
New York Prisoner Wins $7,200 In Negligence Suit
In late February 2001, Kathryn Catalano received a $9.5 million jury award in a Tennessee U.S. District Court. She sued after her father died in an extradition van fire. Federal Extradition Agency (FEA) is a private company based in ...
$9.5 Million Awarded In Prisoner Van Fire Death
Wahad, a former Black Panther leader, was convicted of attempted murder in 1973, after he allegedly machinegunned two New York City police ...
On December 5, 2000, New York City officials agreed to settle Dhoruba alMujahid bin Wahad's wrongful imprisonment suit for $490,000 in damages, costs, and attorney fees.
In 1995 the Graham Unit of the Arizona State Prison in Safford, Arizona held 638 prisoners. One hundred prisoners lived in tents and the rest were housed in permanent dormitories. Shortly before 7 p.m. on August 14, 1995, dissatisfied with the conditions in the tents, some prisoners began setting fire to the tents and nearby structures, throwing rocks and cans and wielding other makeshift weapons. By 11:45 p.m. prison officials had regained control and all 638 prisoners were handcuffed, shackled and lying facedown in the recreation yard.
Prison officials held prisoners handcuffed and prone in the prison yard during the ensuing four-day investigation and search. During that time, prisoners were exposed to the elements. The weather was humid and reached temperatures of up to 94 degrees. Prisoners required treatment for heatrelated medical problems. Prisoners were not provided with blankets or other coverings during the night. One evening it rained but prisoners were given no means of shelter. Bathroom facilities were inadequate and prisoners were denied drinking ...
The Court of Appeals for the Ninth Circuit reversed a district court decision granting summary judgment to prison officials in a case involving the treatment of prisoners following a prison uprising.
On January 22, 2001 an Anchorage, Alaska superior court jury awarded nearly $1.4 million to five women in a civil action arising from their being sexually assaulted by a guard at an Anchorage halfway house called the Cordova Center.
$1.4 Million Awarded To Raped Alaska Women Prisoners
The Kansas state court of appeals held that the parole hoard could not rescind parole revocation and convert it to a conditional release revocation. The court also held that the retroactive application of a rule governing withholding of good time credits violated ex post facto principles.
Martin Muldrow was serving a sentence of 5 to 17 years with a beginning date of September 17, 1989. He was paroled July 1, 1998. His parole was revoked on August 24, 1998 and he was ordered to serve to his conditional release date of April 25, 1999. Based upon Stansbury v. Hannigan, 960 P.2d 227 (1998) and Bankes v. Simmons, 968 P.2d alt (1998) his good time credit was restored and his conditional release date was changed to March 17, 1998. The parole board rescinded its August 1998 order and issued a new order revoking his conditional release, rather than his parole, and passed his case for reconsideration to May 1999.
Muldrow filed a petition for writ of habeas corpus, arguing that he had never been granted conditional release, and, therefore, it could not be revoked. The trial court granted Muldrow's petition, ruling that his ...
Kansas Conditional Release is Mandatory
Hakim filed a 42 U.S.C. §1983 complaint against various FDOC officials, alleging the FDOC was violating his constitutional right to free expression of religion under the First and Fourteenth Amendment by refusing to recognize his legally changed religious name within the prison. Hakim sought to use his dual name for incoming and outgoing mail; on the "Alpha Run" master database of prisoner information, and on his prisoner identification (ID) card and those related prison services obtained using the card.
The district court granted Hakim summary judgment with respect to the prisoner ID card and services obtained with that card, and ordered FDOC to allow Hakim those services under his dual names. FDOC appealed.
The Eleventh Circuit analyzed FDOC's policy of prohibiting dual name usage under the reasonableness test announced in Turner v. Safely, 107 S.Ct. 2254 (1987). The Court then summarized the ...
The Eleventh Circuit Court of Appeals upheld a federal district court order requiring the Florida Department of Corrections (FDOC) to allow Muslim prisoners to use their religious name to obtain prison services. While incarcerated, Florida death row prisoner Kenneth D. Quince converted to Islam and obtained a legal name change to Rasikh Abdul Hakim.
Eleven Georgia prisoners filed a lawsuit claiming that their federal constitutional rights had been violated during a prison "shakedown." All eleven were confined in prison when the lawsuit was filed, but by the time the district court entered judgment fifteenand-ahalf months later six of them had been released from prison.
The district court applied the Prison Litigation Reform Act (PLRA), in 42 U.S.C. §1997e(e), to bar those six prisoners' claim for monetary relief, because they had not alleged the requisite physical injury. A panel for the Eleventh Circuit reversed on this ground, see Harris v. Garner, 190 F.3d 1279 (11th Cir. 1999), but rehearing en banc was granted.
Upon review en banc, the court began with the plain language of the statute. The court stated the operative language stated, "No federal civil action may be brought by a prisoner confined...," and the loadbearing word is "brought" a derivative of the verb "bring." The dispositive question is ...
The Court of Appeals for the Eleventh Circuit has held that a lawsuit which seeks damages for emotional and mental claims filed by a prisoner while confined are barred, but the same claim can be pursued if filed after release.
Dewalt's problems began on August 8, 1997 when prison guard Young approached him at his job cleaning the prison school. Young made a series of sexually suggestive and racially derogatory comments regarding certain female teachers at the school. Dewalt filed a grievance against Young based on the incident.
The following week Young went to Carol Biester, a school administrator, and suggested Dewalt was trying to initiate an intimate relationship with a teacher. Biester instructed Dewalt not to enter the teacher's classroom. On August 14, 1997, Young ordered Dewalt to clean the teacher's classroom, and Dewalt did so. Young then submitted a disciplinary report charging Dewalt with entering the classroom in contravention to Biester's orders. Biester removed Dewalt from his job based upon the report. The Prison's Adjustment Committee found Dewalt guilty and ordered him permanently removed from his job at the school.
In the ...
The Court of Appeals for the Seventh Circuit held a prisoner may bring a 42 U.S.C. §1983 action upon a claim of retaliatory disciplinary action even when the underlying disciplinary action has not been overturned. Illinois prisoner Anthony Dewalt sued various officials at Dixon Correctional Center alleging constitutional violations.
Former Commissioner Thomas A. Coughlin III was slated to be an expert witness in a claim being brought by a state prisoner, Dherise Robinson. She alleged that she was attacked and injured by another prisoner at Bedford Hills Correctional Facility on November 14, 1995. Ms. Robinson contended that the attack resulted from the negligence of the Department of Correctional Services (DOCS).
Judge Francis L. Collins of Saratoga Springs imposed a $500 sanction on June Duffy, a bureau chief in the New York City litigation unit of the office of the Attorney General, for what he termed a "sad chain of events."
Anthony Annucci, counsel to DOCS, called Mr. Coughlin at the request of the Attorney General's office, to advise him that if he testified against the state the Attorney General would have to review indemnification issues. Ms. Duffy, the court said, instigated the threatening call to Mr. Coughlin, though she did not make the call.
Mr. Coughlin is presently facing ...
A Court of Claims judge denounced a highranking lawyer in the Attorney General's office after she threatened and attempted to intimidate a claimant's expert witness_who happened to be the former New York State Commissioner of Correctional Services.
Arizona prisoner Mark Koch filed a civil rights action against numerous officials within the Arizona Department of Corrections (ADOC). Koch's troubles began after he secured favorable judgments in three separate civil actions between October 1989, and September 11, 1990. On September 26, 1990 the first urine sample was taken from Koch and he was placed in administrative segregation after the result was reported positive. Koch alleged in his first complaint the urine test was ordered as retaliation, without notice and, the sample was improperly handled causing contamination. The district court dismissed the complaint, which was reversed on appeal. See: Koch v. Lewis, 62 F.3d 1424 (9th Cir. 1995).
Koch then was granted leave to amend his complaint to include facts showing that prison officials had transferred him sixteen times among eight separate ADOC institutions; targeted him for additional urine tests without proper cause; denied him access to law library and ...
An Arizona federal district court has held that a prisoner's claims that he was subjected to urinalysis, placed in administrative segregation, classified as a gang member and denied access to the law library as retaliation for filing civil actions against prison officials warranted proceedings beyond summary judgment.
The United States District Court, Eastern District of CA, held that a "private settlement" agreement to cap the El Dorado (California) County jail population was not a "consent decree" as defined in the Prison Litigation Reform Act (PLRA), and that it was therefore immune from attack in federal court under the PLRA's termination provisions subsequently enacted at 18 USC §3626.
In a 1990 certified class action complaint to cap jail population at the Placerville and South Lake Tahoe jails, the parties settled under court oversight in 1994 when an Order of Settlement as well as a final judgment of dismissal were entered.
Notwithstanding the finality of the judgment, the County moved to reopen the case subsequent to the 1996 enactment of the PLRA, seeking termination of the more than two-year-old "consent decree" pursuant to 18 USC §3626. Alternatively, the court considered reopening the judgment under Fed.Rules.Civ.Proc. Rule 60(b).
Relying on Taylor v. United States (Arizona), 181 F.3d 1017 (9th Cir. 1999) (en banc), the court noted that when a judgment is entered, any interlocutory order is automatically terminated by the judgment and disappears. Because enforcement of a terminated judgment was ...
by John E. Dannenberg
The Commonwealth Court of Pennsylvania focused on the allegations of injury, as against mere discomfort, in denying the state's motion to dismiss on grounds that Harris had failed to state a claim. The court distinguished cases which found that the "constant presence" of lighting, without more, did not state an Eighth Amendment claim, from those cases where the constant illumination was alleged to have caused injury. The court relied heavily on Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1986), amended at 135 F.3d 1318 (9th Cir., 1998), wherein the prison officials' motion for summary judgment was denied, and on LeMaire v. Maass, 745 F. Supp. 623 (D.Or. 1990), where that court found there was "no legitimate penological justification for requiring [the prisoner] to suffer physical and psychological harm by living ...
Pennsylvania state prisoner Lamont Harris filed a pro se petition for review, alleging that being forced to live in constant illumination 24 hours per day while in punitive segregation was cruel and unusual punishment in violation of the Eighth Amendment. Harris claimed that as a result of the constant lighting, he developed eye problems, sleeping disorders, headaches and mental problems due to lack of sleep.
The Court stated it had considered the regulation on two occasions previously. In Akins v. Snow, 922 F.2d 1558 (11th Cir. 1991) the Court found the regulation violated the Ex Post Facto Clause. The parole board decided that Akins was overruled in California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1991).
In Jones v. Gardner, 164 F.3d 589 (11th Cir. 1999), reversed and remanded, 120 S.Ct. 1362, (2000) the Court examined the regulation in light of Morales and held it reaffirmed Akins. The Jones Court explained the regulation was distinguishable from the California law in Morales as it applied to a wider range of prisoners and did not ...
The Court of Appeals for the 11th Circuit held that a Georgia law changing the frequency between parole hearings may violate the ex post facto clause. Georgia prisoner Paul Harris claimed the retroactive application of Ga. Comp. R & Reg. r. 4753.05(2)(1986)(the regulation), which changes the frequency of parolereconsideration hearings to at least once every eight years from the annual review required when Harris committed his offense in 1969 violates the Ex Post Facto Clause.
Prisoner Steve A. Smith filed a petition for writ of habeas corpus challenging the April 9, 1997 revision to OP060213, (the regulation). The federal district court adopted the magistrate's recommendation and denied the petition.
ODOC classifies its prisoners into four categories that determine the rate at which good time credits are earned. Level 1 earns zero credits, while Level 4 earns fortyfour credits per month. From the date of his conviction in 1990 until March 1992, Smith was classified as Level 2 and earned twentytwo days per month.
On March 17, 1992 ODOC found Smith guilty of attempted escape and reduced him to Level 1. Prison officials later promoted Smith to Level 3 on March 1, 1993 and to Level 4 on June 1, 1993. Smith accumulated credits at these levels until January 5, 1999 when he received notification that 1,276 credits were being deducted as a result of an ODOC time calculation audit.
The Tenth Circuit stated that agency regulations are encompassed under the Ex Post Facto Clause when ...
The Tenth Circuit Court of Appeals held that an amended Oklahoma Department of Corrections (ODOC) regulation that rescinded earned good time credits violates the Ex Post Facto Clause.
Prisoner John Andrew Cuoco, a preoperative male to female transsexual, filed an action against various officials at the BOP facility in Otisville, New York. Cuoco named as defendants 4 members of the BOP's medical services, the director of BOP and warden of the facility.
The defendants filed a motion to dismiss or for summary judgment. The District Court denied in part and granted in part the motion. All parties appealed.
The Second Circuit in its analysis of the case discussed the Public Health Service Act, 42 U.S.C. §233(a)(1998). Section 233(a) makes the Federal Tort Claims Act (FTCA) the exclusive remedy for "personnel injury, including death, resulting from the performance of medical, surgical, dental or related functions... by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment."
Cuoco's Bivens claim is against BOP medical personnel employed by the Public Health Service, who were making decisions entirely within the scope of their employment. The Court held that Cuoco's exclusive remedy for ...
The Second Circuit Court of Appeals held that medical personnel employed by the Bureau of Prisons (BOP) are absolutely immune from suit.
Reviewed by Rick Card
An estimated 69 million people, or 44 percent of all households now own stock or invest in one of thousands of mutual funds. According to Joel Dyer, they are all "deriving at least a small portion of their profits from crime."
In his latest book, The Perpetual Prisoner Machine, Dyer demonstrates how prison profiteering threatens the fabric of our democratic ideals, setting us up for a prison expansion of unimaginable proportion.
Analyzing our current criminal justice policy, Dyer points out how prisoncrats have twisted the issues into an argument they cannot lose. By using fallacious reports of rising crime to call for more prisons is one thing, but to say that prisons are working when the numbers fallin effect calling for more prisons to further reduce crimeis an example of having your cake and eating it too.
Dyer calls it flipping a coin with a prison on both sides. The losers are two million souls caged like animals and taxpayers who foot the expanding bill; the winners are prison contractors, suppliers, investors, service providers, and law enforcement agencies who reap larger budgets and higher profits.
The Perpetual Prisoner ...
by Joel Dyer, Westview Press, 2000 (318 pages)
State prisoner Darrick Hunter was removed from his prison job as a legal assistant for filing an "inmate communication form" ("kite") with prison officials regarding the alleged confiscation of another prisoner's legal work. As a result of the removal, Hunter brought suit under 42 U.S.C. § 1983 alleging that he was terminated in retaliation for asserting his free speech rights and his right to petition the government for redress of his grievances. Prison officials then filed a motion for summary judgment.
The court found that the "filing of informal prison grievances such as kites, which the prison essentially pressures prisoners to file before filing a formal grievance, is a protected activity for redress of a grievance under" Bradley v. Hall, 64 F.3d 1276 (9th Cir. 1995).
The court then concluded that it was "unclear whether defendants retaliated against Hunter for exercising his First Amendment right to petition the government for redress of his grievances by removing him from the inmate legal assistant ...
A federal district court in Oregon denied, in part, prison officials' motion for summary judgment on a claim of retaliatory removal from a prison job. The court also rejected prison officials' defense of qualified immunity.
State prisoner Dennis Reynolds refused to submit to a TB test asserting his First Amendment right to exercise his religion. As a result he was ordered to be placed into restrictive confinement known as Tuberculin Hold (TBHold) for one year.
Reynolds brought suit challenging the legitimacy of the TBHold and moved for a preliminary injunction barring his placement in TBHold pending trial.
Following a hearing, the court granted Reynolds' motion. In doing so, the court found that in applying Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987), Reynolds showed "a clear and substantial likelihood of success in proving at trial that there is no valid or rational connection between placing an inmate who refuses PPD testing in TBHold and" protecting the health of other ...
A federal district court in New York granted a Rastafarian prisoner's motion for a preliminary injunction in an action challenging a prison policy compelling his placement into restrictive confinement for one year for refusal on religious grounds to submit to a tuberculosis (TB) test. The court held that the prisoner showed a clear and substantial likelihood of proving at trial that his First Amendment rights would be violated by the policy.
A $250,000 jury award to a beaten Texas prisoner and a courtordered award of $95,000 in attorney's fees were upheld on appeal to the Fifth Circuit who found that the amount of damages was reasonable and the trial court did not abuse its discretion by giving a ...
Jerry Jensen filed an action for damages pursuant to 42 U.S.C. Section 1983 for unlawful arrest any restraint against Lane County, certain officials, a hospital, and a private medical practitioner, Jeffrey Robbins, M.D. The district court granted summary judgment in favor of Dr. Robbins, concluding that his conduct in signing a commitment order did not constitute state action, and alternatively, if it was state action that Dr. Robbins was entitled to qualified immunity. The remaining defendants went to trial and a jury found in their favor. The only issue on appeal was whether Dr. Robbins was entitled to summary judgment.
The Ninth Circuit noted that the relevant test for determining whether Dr. Robbins' actions were state action was the "close nexus/joint action" test. In applying that test, the court concluded that "the state has so deeply insinuated itself into [the commitment] process that there is `a sufficiently close ...
The Ninth Circuit Court of Appeals reversed a district court's grant of summary judgment to a private physician under contract with the county, holding that contract services provided to the county constituted state action. The court also held that qualified immunity was categorically unavailable to the physician.
Colombia: On May 7, 2001, 200 guerrillas belonging to the Fuerzas Armadas Revolucionarias de Colombia (FARC), stormed a prison in Calota using machine gun fire, missiles and propane gas cylinders filled with explosives. The latter were used to blast the front gate off the prison wall. No one was killed in the attack but 68 prisoners were liberated, among them FARC members. The prison was largely demolished during the attack.
Three days later, a dozen of the freed prisoners, mostly petty thieves serving short sentences returned to the prison to turn themselves in. Under Colombia law, prison escapees who turn themselves in within 72 hours of escaping are entitled to amnesty. Commenting on the returnees, a prison spokesman said: "They wanted to see their children, have a few drinks. As long as they are all back by 10 PM tonight, they will not be penalized ...
Alaska: On May 4, 2001, Anchorage superior court judge Elaine Andrews terminated the 20-year-old Cleary conditions case. Andrews ruled that the overcrowding and related problems that were at the root of the class action lawsuit have been resolved. Andrews said she would file an opinion addressing the constitutionality of the Alaska Prison Litigation Reform Act.