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Prisoner Education Guide

Prison Legal News: August, 2001

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Volume 12, Number 8

In this issue:

  1. New York Guards Watch as Prisoner Kills Cellmate (p 1)
  2. From the Editor (p 5)
  3. Executive Director Note (p 5)
  4. $1.1 Million Awarded in Texas Restraint Chair Settlement (p 6)
  5. Michigan DOC Sex Abuse Suit Nets Nearly $4 Million (p 7)
  6. Michigan Prison Visitor Forced to Wet Pants Wins $40,000 in Damages and Fees (p 8)
  7. Brutality Behind the Orange Curtain (p 8)
  8. Private Prison Corporation Can Be Sued in Bivens Action: Supreme Court Grants Review (p 9)
  9. INS Force-Feeds Long-Term Detainee (p 10)
  10. BOP Changes Organ Transplant Policy (p 12)
  11. Pelican Bay Policy Banning Internet-Generated Mail Upheld (p 12)
  12. 305 Days in New York SHU Is Atypical (p 13)
  13. Trial Required in Pennsylvania Failure to Protect Suit (p 13)
  14. Notes From the Unrepenitentiary: Whose Security? (p 14)
  15. New York Nazi Guard Charged with Sodomy (p 15)
  16. Unjust Rape Conviction Nets New York Man $530,000 (p 15)
  17. Habeas Hints: Apprendi (p 16)
  18. Turkish Prisoners Struggle Against Transfers (p 18)
  19. Two Escape from Oklahoma Control Unit (p 19)
  20. U.S. Supreme Court Requires Futile Administrative Exhaustion (p 20)
  21. Washington Civil Commitment Injunction Upheld (p 21)
  22. Arizona Supreme Court Rules on 1993 Earned Release Statute (p 22)
  23. $80,000 Settlement in CDC Transsexual Suit (p 22)
  24. Court Awards $146,000 in Arizona Medical Indifference Case (p 23)
  25. Kansas Disciplinary Restitution Orders Authorized (p 24)
  26. Pre-Sentence Detention Earns Good Time Credits in Montana Prison (p 24)
  27. Dismissal of Washington Persistent Prison Misbehavior Charge Upheld (p 25)
  28. PLRA Attorney Fee Cap Analyzed (p 25)
  29. Arizona Judgment Seizure Statute Upheld; Fees Protected (p 26)
  30. Retaliation Complaint Not Frivolous if Not Irrational or Wholly Incredible (p 26)
  31. Kansas 2-Year Visiting Restriction Unauthorized (p 26)
  32. Retaliation Claim Not Foreclosed by Sandin (p 27)
  33. New York District Court Reversed for Failure to State Legal Reasoning (p 27)
  34. Washington ISRB May Rescind Parole after Final Discharge (p 28)
  35. No Due Process for Washington Sex Offender Registration (p 29)
  36. News in Brief (p 30)
  37. DC Prisoner Wins $175,000 in Conditions Case (p 32)
  38. Washington Sex Offenders Settle Suit for $150,000 (p 32)

New York Guards Watch as Prisoner Kills Cellmate

by Jennifer Gonnerman

In the summer of 1999, New York's prison officials opened a sleek new penitentiary on the outskirts of Malone, a tiny town 15 miles south of the Canadian border. By then, New York already had 69 prisons, but its 70th stood out from the others. This high-tech, $130 million facility was the first prison in the state built specifically for prisoners who broke prison rules elsewhere. Attacking a guard or getting caught with a weapon could get a prisoner sent here, and so could lesser offenses, like smoking marijuana.

This prison was to be the ultimate management tool, a place to send the most disruptive inmates so that the rest of the state's prisons could run more smoothly. Officials gave it an innocuous name, Upstate Correctional Facility, but punishment here would take on an unusually harsh form. Just as in solitary confinement, the men would stay in their cells for 23 hours a day, never seeing a classroom or a mess hall. At Upstate, though, officials added a harrowing twist: Each prisoner would be locked in a tiny cell all day with somebody else.

Upstate prison was supposed to be not only cost efficient, but ...

From the Editor

by Paul Wright

We have recently added several new books to the list of titles PLN is distributing. In coming months we will add more titles to our book list. As PLN 's office situation stabilizes our staff has more time to do things like track down book suppliers.

Among the books that we have added to our distribution list is With Liberty for Some , by Scott Christianson. We first reviewed the book a while back when it first came out. Now available in paperback, it offers the best history of the American prison system there is. It is well written, highly informative and easy to read. The author does a fantastic job of putting today's prison situation into historical context so that 2 million imprisoned Americans is merely continuity rather than an aberration. I highly recommend this book and I am very pleased that PLN can distribute it.

In some cases PLN 's ability to distribute the titles we want (especially law books) is hampered by the fact that some publishers will not offer discounts to resellers such as PLN . In a few cases, publishers have offered PLN discounts which we are passing along to our readers. Legal ...

Executive Director Note

This is the seventh issue of PLN printed since I became Executive Director. It has been a real challenge getting PLN back on track.

To ensure another Fred fiasco does not happen again we have instituted several procedures and safeguards. These measures include: compartmentizing operations, two signature checks, bank statements to board members and hiring a CPA to maintain the books. We have also designed and installed a new database program to track PLN's operation in greater detail.

Because of dedicated staff and volunteers PLN is back on its monthly production schedule. Over the last few months we received a considerable amount of mail concerning late delivery of PLN . Receipt of this issue should answer those questions. If you have other concerns that have not been addressed, now would be the time to write.

After Fred's actions were reported in the April 2001 editorial we received many letters of encouragement. Thanks for the continued support.

$1.1 Million Awarded in Texas Restraint Chair Settlement

Nueces County, Texas, settled a $1.1 million lawsuit filed by the father of Andrew Sokolinski, a prisoner who died while strapped into a restraint chair at the Nueces County Jail. The county settled the lawsuit midway through an August 2000 trial, three years after Sokolinski died from the abuse ...

Michigan DOC Sex Abuse Suit Nets Nearly $4 Million

On February 7, 2000, Michigan DOC officials agreed to settle a lawsuit with 32 women prisoners for $3,787,000 in damages, costs, and attorney fees. The women sued in a Michigan federal district court after being sexually abused by DOC guards.

The named plaintiff, Linda Nunn, and 31 others ...

Michigan Prison Visitor Forced to Wet Pants Wins $40,000 in Damages and Fees

Michigan Prison Visitor Forced To Wet Pants Wins $40,000 in Damages and Fees

On February 12, 2001, James Glaspy was awarded $10,000 in damages at a bench trial in a Michigan federal district court. He sued after he was denied restroom access at a Michigan prison and was ...

Brutality Behind the Orange Curtain

by W. Wisely

The FBI began its second civil rights investigation of the Orange County, California, sheriff's department following the beating of a diabetic prisoner asking for food to lower his blood sugar. Michael Gennaco, head of the civil rights division of the U.S. Attorney's Office in Los Angeles, told the Los Angeles Times about the investigation into the October, 1999, incident which left John Kenneth Lolli with two broken ribs and other injuries.

Jonathan Slipp, the Newport Beach attorney representing Lolli in his civil rights lawsuit, told the Times , "He had a huge knot on his forehead. His scalp was cut. He lost hearing in one ear. All of this because he's diabetic and asked for food." According to the lawsuit, Lolli was arrested October 6, 1999, in Brea for failure to appear in court for a traffic ticket.

Booked into the Orange County jail, Lolli told sheriff's deputies he was diabetic and needed to eat or his blood sugar would drop too low. After being ignored for several hours, Lolli felt dizzy and again asked for food, but a deputy said, "What do you think this is, the Holiday Inn?"

After a short ...

Private Prison Corporation Can Be Sued in Bivens Action: Supreme Court Grants Review

by John E. Dannenberg

Holding that a private corporation acting under color of federal authority may be sued under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388, 397, (1971), the Court of Appeals for the Second Circuit vacated the District Court's dismissal of John E. Malesko's Bivens complaint against private prison contractor Correctional Services Corporation (CSC).

Malesko was convicted of federal securities fraud in 1992 and sentenced to 18 months imprisonment under supervision of the Federal Bureau of Prisons (BOP). While in their custody and care, he was diagnosed with and treated for a heart condition. In 1994, he was transferred to Le Marquis Community Correctional Center, a halfway house operated on behalf of the BOP by CSC.

He had use of an elevator to reach his fifth floor room there until CSC changed their elevator policy to only permit use for residents on the sixth and higher floors. Although Malesko was accorded an exception, one day a CSC employee forced him to take the stairs, even after being reminded of the heart condition. While climbing the stairs, Malesko suffered a heart attack, fell and injured himself. Malesko sued both the private ...

INS Force-Feeds Long-Term Detainee

Nabil Soliman believes that "accepting a tray of food" from his jailers means accepting what he calls his "illegal detention" by the Immigration & Naturalization Service (INS). Soliman has argued that it is a violation of his First Amendment right to expression and his Fourteenth Amendment right to privacy for jail officials to force-feed him. The INS responds that while Soliman "may have constitutional protections," these are limited when weighed against the government's interest "in preventing hunger strikes and preserving the life of INS detainees." Soliman is just one hunger-striker, but his case has national implications for the INS's management of its ever-increasing, and increasingly frustrated, population of detainees.

The INS currently holds over 20,000 detainees nationwide in its own Service Processing Centers, in privatized contract facilities, and in hundreds of local and county jails. The federal mandatory detention laws of 1996, which resulted in lengthy detention for thousands of legal residents convicted of often minor crimes, have transformed the agency into "a mini-BOP," according to one INS official, referring to the Federal Bureau of Prisons. The average daily population of INS detainees just before the 1996 laws was about 8,000; local politicians around the country have been more than willing to help ease what that INS official calls "significant growing pains."

In early March, for example, the Etowah County Detention Center in Gadsden, Alabama _ where Nabil Soliman is in custody _ announced an $8.4 million dollar expansion. The jail currently has 376 "fixed beds," and, with the use of plastic "stackable bunks" or "boats," its population is usually "in the 400-range," according to Chief of Corrections Wes Williamson. Between 70 and 100 of those beds are contracted by the INS.

Once construction has been completed, Etowah County will house 324 INS detainees at a rate of $30-33 per detainee per day, well below the $55 per "manday" national average. Etowah County Sheriff James Hayes told the Gadsden Times that the old INS contract has already helped the county pay for new vehicles, training, and equipment. The new 15-year contract, he says, should raise $120 million in revenue.

As for the INS, the agency seems poised to hold out Etowah County as one of its ...

BOP Changes Organ Transplant Policy

The Federal Bureau of Prisons announced in early 2001, that it had decided to pay for organ transplants in some circumstances modifying its longstanding position of refusing to provide organ transplants for prisoners. Officials made the decision because, for disorders such as leukemia and endstage kidney failure, organ transplants have become the treatment of choice and are no longer considered experimental or extraordinary, said Jan Sorenson, assistant national health systems administrator. "Until the success rate was very high and it really became the community standard, we didn't change our policy," she said. [At least one federal court has held the BOP's no transplant policy was probably unconstituitional. See: Barron v. Keohane , 216 F.3d 692 (8th Cir. 2000).]

Once a treatment has become the standard in the community, prisoners should not be denied it solely because they are incarcerated, according to ethical and legal experts. The U.S. Supreme Court concluded in a 1976 case that state and federal governments have a constitutional obligation to provide health care to prisoners, said Richard J. Bonnie.

Three federal prisoners with kidney failure said, in recent letters to a reporter, that after the policy was changed in February, 2001, they requested ...

Pelican Bay Policy Banning Internet-Generated Mail Upheld

The California Court of Appeal held that a policy adopted only at Pelican Bay State Prison (PBSP) preventing prisoners from receiving through the US Mail any material that had been downloaded from the Internet was facially valid and reasonably related to legitimate prison security interests at PBSP.

PBSP prisoner Aaron Collins had subscribed to PLN advertiser INMATE Classified, a for fee business service offering prisoners a "personal connection to the Internet." INMATE Classified designs personal home pages, accessible through INMATE Classified's Web page that includes the prisoner's mail address and an individual email address. Once a week, the service downloads any email received by the prisoner and forwards it by U.S. Mail.

Although Collins commenced his subscription without objection at another CA prison (CSPSacramento) a year earlier, when he transferred to PBSP, the warden issued a memorandum after a few months noting an "influx" of such mail. Citing prison regulation 3138(f)(1), he deemed it "unauthorized" and ordered the mailroom not to accept any Internet related material.

After exhausting administrative remedies, Collins petitioned the Del Norte County Superior Court for a writ of habeas corpus, citing First Amendment rights. The court agreed, ordering "EMail or other ...

305 Days in New York SHU Is Atypical

305 Days in New York SHU is Atypical.

The Court of Appeals for the Second Circuit held that 305 days in segregation is an "atypical and significant hardship" within the meaning of Sandin v. Conner , 515 U.S. 472, 115 S.Ct. 2293 (1995).

State prisoner Armando Colon was issued a misconduct report after his cell was searched and two marijuana cigarettes and a shank were allegedly found. During the disciplinary hearing Colon testified that the contraband had been planted in retaliation for Colon's previous law suits against prison officials.

Colon was found guilty of the charges and sanctioned to serve 360 days in a segregated housing unit (SHU). He was ultimately returned to general population after serving 305 days of the sanction.

Colon brought suit under 42 U.S.C § 1983 alleging that the contraband had been planted in retaliation for his prior law suits and that he had been denied a fair hearing. The case eventually proceeded to a jury trial and at the close of Colon's evidence the district court granted defendants' motions for judgment as a matter of law (JMOL) on various grounds, including "that the duration and conditions of the SHU confinement was ...

Trial Required in Pennsylvania Failure to Protect Suit

A federal district court in Pennsylvania held that summary judgment was precluded on a state prisoner's failuretoprotect claim. The court also held that prison officials were not entitled to qualified immunity.

State prisoner Richard Pearson was stabbed six times by several prisoners in a hallway while he was housed in the State Correctional Institution in Graterford, Pennsylvania, (Graterford), in 1994. Prison officials subsequently determined that Pearson should be removed from, and never returned to, the general population at Graterford because of the danger of another attack on his life. He was then transferred from Gratrford.

In 1995 he was returned to Graterford for 23 weeks without incident before being transferred. On February 8, 1996, Pearson was returned to Graterford for a parole hearing. The next day Pearson told his Unit Manager that he was concerned about being housed in general population. He requested to be transferred and placed in administrative custody until the transfer occurred. Prison officials apparently refused Pearson's request, noting that he had been cleared for general population and that there was no need for him to be placed in administrative custody.

On February 21, 1996, Pearson was stabbed in the prison law library by three ...

Notes From the Unrepenitentiary: Whose Security?

Notes From The Unrepenitentiary: Whose Security?

by Marilyn Buck

Two children, both with mothers imprisoned at FCI Dublin, died within a two-week period. Both children were adolescent boys, aged 13 and 9, repectively. One of the children ran away from his abusive father's home. He froze to death sleeping in a church bus he'd found for shelter. The other child committed suicide. I can't tell you why. The bottom line is: these children didn't have their mothers home with them. Criminal "justice" in Amerika deemed that society was better off punishing these women. I don't think their children thought so.

These women are far from home. They seldom, if ever, saw their boys, who needed help, support and solace. Such is the situation of Federal prisoners all over the U.S., like state prisoners who are "housed" outside their home states; the same is true for prisoners in Pelican Bay, CA, or Attica and Clinton, NY.

Too many children are suffering grievously the loss of one or both parents to U.S. prison systems. We prisoners know that being an offender of the law doesn't make one a bad parent. Many are imprisoned precisely ...

New York Nazi Guard Charged with Sodomy

New York Nazi Guard Charged With Sodomy

In the January, 2001, issue of PLN we reported the New York Court of Appeals' ruling that upheld an arbitrator's decision to continue the employment of Edward Kuhnel, a prison guard at the Eastern Correctional Facility in Napanoch.

Kuhnel had been suspended by prison officials for flying a large Nazi flag from the porch of his home, which was widely reported in local media. Kuhnel was paid a total of $110,575 for the 2 1/2 years he was not working as the state appealed his suspension.

In 1988 the New York Department of Correctional Services (DOCS) had tried to fire Kuhnel after he was accused of distributing literature from the National Association for the Advancement of White People to prisoners and staff at the prison. An arbitrator ordered him restored to duty and awarded Kuhnel $8,941 in back pay.

On April 11, 2001, Kuhnel, 44, surrendered to police and was arraigned on three counts of sodomy and one count of official misconduct in Ulster County. In the indictment, prosecutors claim that on two separate occasions in May, 2000, Kuhnel engaged in acts of sodomy with a male prisoner at ...

Unjust Rape Conviction Nets New York Man $530,000

In May, 2000, the New York Court Claims in White Plains awarded Victor Ortiz, 41, $530,658 in damages after he spent 12 years in prison for a rape he did not commit.

In January 1984, Ortiz, then 25, was convicted of rape and sentenced to 12 to 25 years ...

Habeas Hints: Apprendi

by Atty. Kent Russell

[This column is intended to provide "Habeas Hints" for prisoners who are handling habeas corpus petitions as their own attorneys. The focus of the column is habeas corpus practice under the AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.]

Apprendi : Feast or Famine? Part 2.

The Apprendi whirlwind just keeps on blowing. It's only been three months since my first column on Apprendi , but scores of new Apprendi cases continue to rain down across the country, and there's no sign of a let-up. Therefore, even though the passing of Apprendi 's 1-year anniversary on June 26, 2001 means that no new Apprendi claims will make it by the AEDPA's 1-year statute of limitations unless prisoners can establish equitable tolling for the failure to file them within one year after Apprendi was announced, there are so many cases already in the pipeline with lively Apprendi issues that it's worth it to take a second look at Apprendi and the most current strategies for handling Apprendi claims.

Apprendi held that, except for prior convictions, the Constitution requires that any fact which is used to enhance a ...

Turkish Prisoners Struggle Against Transfers

When the Turkish army stormed 20 prisons in December, 2000, a four-day pitched battle ensued during which thirty-two died _ 30 political prisoners and two soldiers. The army claimed that many prisoners set themselves afire rather than surrender; prisoners who survived allege that in at least one prison, Bayrampaga in Istanbul, the army opened a hole in the roof and poured gasoline on the women prisoners below burning six women alive. Prisoners also charge certain among them were singled out for death. Amnesty International and Human Rights Watch (HRW), in a joint statement, allege that prisoners were deliberately abused during and after the raids and that after the raids, treatment for injuries was denied. This raid was the first large-scale attempt made by the government of Prime Minister Ecevit to move prisoners from ward-style prisons, where large numbers of prisoners are crowded in dormitories, to F-type prisons modeled on U.S. super maximum prisons where prisoners are housed one to three to a cell. Four such prisons have already been built and more are planned. Prisoners already housed there are allowed to leave their cells only once a week if an immediate family member visits.

In 1996, the government had ...

Two Escape from Oklahoma Control Unit

Two Escape From Oklahoma Control Unit

Two maximum security prisoners escaped on January 15, 2001, from the Oklahoma State Penitentiary's notorious Hunit, an underground control unit, only to be recaptured two days later.

The escaped prisoners were identified by ODOC spokesman Jerry Massie as James Robert Thomas, 25; and Willie Lee Hoffman, 21. Thomas was serving life without parole plus 400 years for a 1993 murderrape. Hoffman had been serving a 20year sentence for kidnapping and several other crimes.

It is the first escape from Hunit since its opening in September 1991, Massie said.

A third prisoner attempted to escape, but became entangled in razor wire between the two perimeter fences.

Thomas and Hoffman escaped by removing the toilet from the wall of their cells and gaining access to a maintenance crawl space, said prison spokeswoman Lee Mann. They then crawled through an air duct, made their way to the roof and finally reached the ground where they scaled two security fences.

The two stole a car late the same morning in McAlester, where the prison is located. It was found by police on January 17, abandoned in Colgate, about 45 miles from McAlester. Thomas and Hoffman both were ...

U.S. Supreme Court Requires Futile Administrative Exhaustion

On May 29, 2001, a unanimous United States Supreme Court held that 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act (PLRA) requires the complete exhaustion of prison administrative remedies, regardless of how futile those remedies may be and regardless of the relief sought or available.

Timothy Booth, a Pennsylvania state prisoner, filed suit in federal court claiming that prison guards beat him, threw cleaning material in his face and then denied him medical attention for his resulting injuries. At that time, the Pennsylvania Department of Corrections' (DOC) grievance system did not provide for money damages (in a footnote the Court states that it now does). Before he filed suit, Booth filed a grievance but when he was denied relief at the first level, he did not file administrative appeals to the next two levels. Hence he did not exhaust his administrative remedies.

The District Court dismissed Booth's complaint without prejudice for his failure to exhaust available administrative remedies. 42 U.S.C. § 1997e(a) now provides that: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail ...

Washington Civil Commitment Injunction Upheld

The Court of Appeals for the Ninth Circuit has affirmed the District Court's denial of a motion to dissolve an injunction requiring the Special Commitment Center (SCC) in Washington to bring its sexual deviancy treatment program within constitutional requirements.

In 1994, Richard Turay, a resident at the civil commitment center for sexually violent predators, filed suit in the Federal District Court in Seattle, alleging a constitutional violation due to inadequate treatment. Without adequate treatment, Turay would never be able to obtain release.

A jury found in Turay's favor and the District Court, Judge William Dwyer, issued an injunction requiring SCC to bring its treatment program up to constitutional standards. Meanwhile, other SCC residents brought a similar suit, which resulted in the award of money damages and injunctive relief. [ See PLN, Aug. '98, for a detailed history of SCC's many problems and the ensuing litigation. ]

SCC was slow to comply with the injunctions, so Judge Dwyer appointed a special master to assist in compliance and to report to the court. Judge Dwyer subsequently reviewed 14 reports from the special master and held several hearings on motions for contempt against SCC. Ultimately, in October 1998, SCC moved to dissolve ...

Arizona Supreme Court Rules on 1993 Earned Release Statute

Arizona Supreme Court Rules On 1993 Earned Release Statute

The Arizona Supreme Court has held that 1993 amendments to statutes governing earned release credits for Arizona prisoners do not apply to persons convicted of felonies committed prior to the amendment's effective date. In 1985, Kenneth True pled guilty to a felony for which, at that time, he was unable to receive earned release credits.

After True's conviction, the Arizona Legislature revised the statutes governing earned release credits. Specifically, in 1990, the legislature excluded all prisoners sentenced to mandatory minimum sentences from the group of offenders eligible for earned release credits. This amendment applied to all felony offenses committed on or after September 27, 1990, the statute's effective date, but not to offenses committed before that date. In 1992, the legislature again amended these statutes to retroactively allow all prisoners ineligible for earned release credits under the 1990 amendment to receive such credits once onefourth of their mandatory sentence was completed. Thus, as of 1992, Arizona had two earned release credit schemes in effect _ the first for prisoners whose offenses occurred before September 27, 1990, and the second for prisoners whose offenses occurred on or after that ...

$80,000 Settlement in CDC Transsexual Suit

In August 2000, the State of California settled a claim from a transsexual former prisoner that her need for hormone therapy was ignored while incarcerated by agreeing to pay her $80,000.

Torey Tuesday South, 40, began her trek through the California penal system when she entered San Quentin Prison ...

Court Awards $146,000 in Arizona Medical Indifference Case

An Arizona prisoner was awarded over $146,000 in damages in January 2000 after he filed suit claiming that an Arizona prison nurse's care amounted to deliberate indifference.

Manuel Covarrubias, 46, was a prisoner at the state prison at Douglas, Arizona in April, 1995, when he was injured while ...

Kansas Disciplinary Restitution Orders Authorized

The Kansas Court of Appeals affirmed a district court judgment, reducing the amount of restitution assessed against two prisoners for disciplinary rule violations, from $1,956.75 to $1,104.68 per prisoner. In doing so, the court concluded that the Department of Corrections has the authority to impose reasonable restitution as a disciplinary sanction.

In 1998, prisoners Joseph Tonge and Bradley Holmes escaped from the Ellsworth Correctional Facility. They were eventually apprehended and returned to custody where they were charged with a disciplinary violation of aggravated escape. They eventually pled guilty to the charges and were sanctioned to repay the costs expended by the State in recapturing them, as restitution.

Both prisoners filed grievances against the DOC alleging that the amount of restitution imposed was unreasonable. The grievances were denied and the prisoners filed petitions for habeas corpus relief. After separate hearings, the district court reduced the restitution to $1,104.68 per prisoner. Both the prisoners and the state appealed.

The Court of Appeals rejected the state's argument that the court lacked jurisdiction to hear the appeal because the habeas petitions were untimely and the prisoners failed to exhaust their administrative remedies.

The prisoners argued that the ...

Pre-Sentence Detention Earns Good Time Credits in Montana Prison

The Montana Supreme Court granted habeas corpus relief to William MacPheat, a Montana state prisoner, who sought goodtime credits for presentence jail time and an earlier release from prison based upon award of those credits.

In 1995, MacPheat was charged with multiple crimes and sentenced to 10 years in prison. Unable to post bond, MacPheat spent 331 days in county jail prior to sentencing. He received 331 days credit against his prison sentence but did not receive goodtime credit for those days.

The Montana Department of Corrections (DOC) may grant goodtime allowances of up to 1 day for each day served in prison. There is no provision, which permits DOC to award good time to individuals who are held in county jails.

In his habeas petition, MacPheat argues that he is entitled to goodtime credit for his 331 days of county jail time. Had he been able to post bond and remain free prior to sentencing, he would have served his entire sentence in prison, earned goodtime credits on the 331 days of presentence time, and thus been eligible for release at an earlier date.

"We believe . . . that to deprive a criminal defendant of his freedom simply because, through no ...

Dismissal of Washington Persistent Prison Misbehavior Charge Upheld

The Washington Supreme Court has affirmed the dismissal of a persistent prison misbehavior charge because the Department of Corrections (DOC) failed to properly promulgate its list of serious infractions, one of which formed the basis of the charge. In doing so, the court refused to decide whether a 1999 Court of Appeals decision, which held the persistent prison misbehavior statute unconstitutional, is still valid.

In 1995, the Washington Legislature enacted RCW 72.09.130, which requires DOC to adopt "a system that clearly links an inmate's behavior and participation in available education and work programs with the receipt or denial of earned early release days [good time] and other privileges." RCW 72.09.130(1).

That same year, the Legislature also created the offense of persistent prison misbehavior. RCW 9.94A.070. To be convicted of that offense, the state must prove that a prisoner has lost all potential good time and knowingly committed another serious infraction. RCW 9.94A.070(1). "Serious infraction" means a list of infractions adopted by DOC under RCW 72.09.130. See RCW 9.94A.070(2). When the persistent prison misbehavior statute was enacted, DOC had not adopted its serious infractions under ...

PLRA Attorney Fee Cap Analyzed

The Temple Law Review recently published an article useful to any litigants challenging the Prison Litigation Reform Act's (PLRA) cap on attorney fees under 42 U.S.C. § 1997e(d). The Price of Civil Rights: The PLRA's Attorney's Fee Cap Provision as a Violation of Equal Protection of the Laws , by Karen Klotz, contains an exhaustive history of the statute, including background on the rationale for civil rights fee shifting statutes in the first place.

The article examines the court rulings that have addressed the constitutionality of the fee cap. The author gives a detailed analysis of the different levels of constitutional scrutiny available to challenge statutes. Even under the standard most favorable to the government, the author convincingly concludes that the fee cap is not rationally related to any legitimate governmental interest.

Any attorney challenging the constitutionality of 42 U.S.C. § 1997e(d) will find the article useful, both for research purposes as well as to persuade any reviewing courts. See: 73 Temple Law Review 759 (2000). To order the article contact: Temple Law Review, (215) 204-7868.

Arizona Judgment Seizure Statute Upheld; Fees Protected

An Arizona appellate court has held that a state law allowing the Arizona Department Of Corrections (DOC) to seize 80% of all money won in prisoner lawsuits is valid under that State's constitution.

Charles Holly, an Arizona prisoner, sued that State after being injured in a fall at an ...

Retaliation Complaint Not Frivolous if Not Irrational or Wholly Incredible

The Seventh Circuit Court of Appeals reversed the District Court's dismissal of Illinois prisoner Terry Johnson's 42 USC §1983 complaint wherein he complained nurse Debbie Stovall filed false disciplinary charges against him in retaliation for his having filed a grievance against her. The District Court had dismissed the complaint as "frivolous."

In reaching its decision, the district court reviewed Johnson's record, noting he had over 20 disciplinary reports resulting in adseg, security increase and credit loss. As to these incidents, Johnson complained his due process rights had been violated. Additionally, he grievanced Stovall for denial of TB meds. Observing the report of a polygraph test he had included, the court noted Johnson had been found not truthful with respect to an assault and battery he allegedly committed on nurse Stovall (striking her hand and burning it with a cigarette).

Upon review of his own evidence, and concluding Johnson had answered deceptively, the court was left with the firm conviction that Johnson's description of Stovall's misconduct fit the definition of frivolous. Accordingly, the court dismissed the case as frivolous, without serving the defendants, pursuant to 42 U.S.C. §1997(e)(c)(1). It further denied ...

Kansas 2-Year Visiting Restriction Unauthorized

The Kansas Court of Appeals held that a 2 year suspension of a prisoner's visiting privileges was not authorized by the visiting rules.

Derrick Davis, a prisoner at Lansing Correctional Facility received two disciplinary reports alleging that he engaged in lewd conduct with his wife in violation of the visiting rules. The first report was dismissed, as it was originally served on the wrong prisoner. The charges alleged in both reports were the same.

Prior to the hearing, Davis requested that several guards be called to testify about the two disciplinary reports being written on the same alleged incident. The hearings officer denied the request because the witnesses had no knowledge of the alleged violation.

The hearings officer found Davis guilty and sanctioned him to a 30day privilege restriction, suspended for 6 months, and a $15 fine. Additionally, the deputy warden of programs suspended Davis' visiting privileges for 2 years.

Davis filed two petitions for habeas corpus, alleging that the hearings officer violated his right to due process by refusing his request to call witnesses and that the 2year visiting suspension was not authorized. The trial court consolidated the petitions and denied relief. Davis appealed.

The court of appeals ...

Retaliation Claim Not Foreclosed by Sandin

The Court of Appeals for the Third Circuit held that a prisoner's civil rights complaint for damages due to administrative segregation placement was not foreclosed by the U.S. Supreme Court's Sandin "atypical hardship" rule, when the administrative segregation placement was alleged to be in retaliation for the exercise of a constitutional right.

Michael Allah had filed civil rights suits against prison officials at S.C.I. Frackville and S.C.I. Graterford. Subsequently, he was transferred to S.C.I. Greene and placed in administrative segregation on July 9, 1997. As of September 9, 1997, he still had never been seen by the Program Review Committee, after three aborted schedules, on their allegation that they had "not had a chance to review [his] records." He alleged in his newest complaint that he was unable to file and produce briefs in his criminal case and unable to conduct discovery in his civil rights cases while in administrative segregation at S.C.I. Greene. He sought, inter alia , compensatory and punitive damages.

The District Court dismissed the complaint on September 29, 1997, for failure to state a claim, relying on Sandin v. Connor, 515 US 472 (1995) for the ...

New York District Court Reversed for Failure to State Legal Reasoning

New York District Court Reversed For Failure To State Legal Reasoning

The Second Circuit Court Of Appeals reversed a district court's dismissal of a pro se prisoner civil rights action. The Second Circuit found that the District Court had not explained why it dismissed the case well enough for the appeal to be decided, and the case was remanded for a written findings of fact and conclusions of law.

Easton Beckford, a New York prisoner, filed the civil rights action against New York prison officials. State attorneys moved for summary dismissal under Fed. R. Civ. P. 56(b). The District Court granted the State's motion and dismissed the case relying on the "alternate grounds articulated in Defendants' memorandum," without further dissertation.

The Second Circuit remanded the case holding that `" [i]f the [lower] court fails to state findings and to give an explanation, and the reason for the [lower] court's ruling is not clear to us, we will remand for findings and an explanation." See: Beckford v. Portuondo , 234 F.3d 128 (2d Cir. 2000).

Washington ISRB May Rescind Parole after Final Discharge

Washington ISRB May Rescind Parole After Final Discharge

In a closely divided opinion, a 5 Justice majority of the Washington Supreme Court held that the Indeterminate Sentence Review Board (ISRB) has jurisdiction and statutory authority to rescind an order of final discharge, revoke previously restored civil rights, and return the discharged parolee to custody. In 1993, the Washington State Legislature amended RCW 9.96.050, requiring the ISRB to discharge from parole any parolee who had successfully spent three consecutive years in the community. The previous version of the statute had granted the ISRB discretion to continue a parolee's parole up to his or her maximum sentence, regardless of time spent successfully in the community.

In July of 1993, having spent three years in the community, Larry Quackenbush was issued an order of final discharge by the ISRB. However, prior to receiving this final discharge, Quackenbush committed several felonies in California.

The ISRB was unaware of the new crimes at the time it ordered Quackenbush's discharge from parole. Upon discovering these violations of law, the ISRB promptly rescinded Quackenbush's final discharge and returned him to custody once his sentences for the California crimes had expired.

Quackenbush subsequently ...

No Due Process for Washington Sex Offender Registration

No Due Process For Washington Sex Offender Registration

The Washington Supreme Court held that sex offenders are not entitled to notice or a hearing prior to being assigned a registration level. In 1990, the Washington State Legislature enacted the Community Protection Act (CPA). The CPA requires any person convicted of a sex offense to register with the sheriff of the county in which he or she resides. Prior to a sex offender's release from confinement, the DOC assigns a registration level to the offender. Sex offenders considered as posing a high risk to the community are given level three status. Offenders considered to be low risk receive level one status. As the offender's level increases, government officials are entitled to release a greater amount of personal information to the community, ultimately culminating in neighborhood and media notification for level three offenders. Sex offenders receive no notice or an opportunity to be heard prior to being assigned a registration level.

Three sex offenders brought personal restraint petitions, arguing that they were entitled to due process before they were assigned their respective registration levels. In other words, the petitioners wanted notice and a hearing before the DOC gave them a ...

News in Brief

Bolivia: On June 4, 2001, prisoners at the Palmasola jail became fed up with a gang of prisoners who called themselves the "smurfs" who beat, assaulted and extorted other prisoners and their visitors at the jail. Taking matters into their own hands, a mob of prisoners killed three and wounded three of the gang members. Armando Megamatsu Justianino, William Mendez and Bismarck Steven Guzman were beaten to death and Ciro Perez Cusi, Henry Garcia Huanca and William Oporto Miranda were severely beaten and stabbed. Since 1997, 15 prisoners have been killed by other prisoners at the jail. Government officials are at a loss to explain why the jail is so unsafe.

CA: On May 11, 2001, 270 prisoners at the High Desert State Prison brawled amongst themselves. According to Chuck Spirk, administrative assistant at the prison, fighting broke out among black, white and Hispanic prisoners and was quelled by 120 guards who fired 39 rounds of ammunition, pepper spray, tear gas, rubber and wooden projectiles to restore order. B Facility, where the brawl occurred, was placed on lockdown pending an investigation. Seven prisoners received knife wounds and other injuries. No staff were injured.

Chile: On May 26, 2001, 26 prisoners ...

DC Prisoner Wins $175,000 in Conditions Case

by David C. Fathi

On January 25, 2001, a federal jury in Washington, D.C. awarded nearly $175,000 to D.C. prisoner Lawrence Caldwell in his challenge to conditions at the District of Columbia's Maximum Security Facility (MSF) in Lorton, Virginia. The award included $25,000 each in ...

Washington Sex Offenders Settle Suit for $150,000

Washington Sex Offenders Settle Suit For $150,000

On January 22, 2001, Washington Special Commitment Center (SCC) officials settled two consolidated civil actions involving seven civilly committed Washington sex offenders. The sex offenders complained that they were not provided treatment for the psychological problems resulting in their civil commitment.

The ...


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