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Prisoner Education Guide

Prison Legal News: September, 2001

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Volume 12, Number 9

In this issue:

  1. Cowboys and Prisoners (p 1)
  2. 'No More Prisons' Graffiti Gets Public's Attention (p 3)
  3. Alabama Ends Chain Gang Experiment (p 4)
  4. From the Editor (p 5)
  5. Racist Knot of Florida Guards (p 6)
  6. Virginia Rent-a-Cell Program Expected to Net $100 Million (p 7)
  7. Suits Claiming Racial Discrimination Plague Florida Prisons (p 8)
  8. Private Prison Woes in Ohio (p 9)
  9. 'Invisible' Prisoner Gets $36,200 for Wrongful Imprisonment (p 10)
  10. Oklahoma Governor Takes Entrepreneur's Bribe (p 10)
  11. BOP Guards Smuggle Sperm (p 10)
  12. FPI Has Sovereign Immunity in Fraud Action (p 11)
  13. Washington Supreme Court Upholds 35% Seizure Law (p 11)
  14. New York Prisoners Prosecuted (p 12)
  15. No Workers' Compensation for Ohio Slave Laborers (p 12)
  16. Former BOP Prisoner Settles Medical Suit for $355,000 (p 12)
  17. CCA Gets Tangled in Financial Quagmire (p 13)
  18. Feds Tally the Death Penalty (p 14)
  19. Environmental Concerns Halt Construction of Pennsylvania Prison (p 15)
  20. Denial of Religious Diet Violates First Amendment (p 18)
  21. Legal Research: How to Find and Understand the Law (p 18)
  22. Summary Judgment Denied on BOP Excessive Force Claims (p 19)
  23. Virginia Excessive Force Claim Set for Trial (p 19)
  24. Snitch Culture: How Citizens Are Turned into the Eyes and Ears of the State (p 20)
  25. Failure to Protect Confidential Informant Not Deliberate Indifference (p 21)
  26. Rhode Island Prison Strip Searches Struck Down (p 21)
  27. $350,000 Verdict in Dirty Dancing Suit; Punitive Damages Vacated (p 22)
  28. Six Month Denial of Exercise Presents Section 1983 Claim (p 23)
  29. PLRA Does Not Apply to Habeas Corpus Actions (p 24)
  30. No Interlocutory Appeal for Good Faith Defense (p 24)
  31. Possibility of Life in Control Unit Doesn't Mitigate Death (p 25)
  32. PAMII Act Requires Release of Mental Health Records (p 26)
  33. Ninth Circuit Reverses Time-Barred Habeas Petition (p 27)
  34. Maryland Court Ruling on Tobacco Smoke Prompts Settlement (p 27)
  35. Ohio Death Row Prisoners Sue Over Last Words (p 28)
  36. Dismissal of Prisoner's Suit for Missing Evidentiary Deadline Reversed (p 29)
  37. News in Brief (p 30)

Cowboys and Prisoners

Trumpeted as the pinnacle of high-tech prison architecture when it opened in 1993, the Federal Correctional Complex in Florence, Colorado, contains two lower security facilities, one maximum security prison, and, since 1994, the Clockwork Orange inspired U.S. Penitentiary Administrative Maximum. The steel and concrete citadels are rimmed by verdant hills covered in dense grass. Hedgehogs and other creatures come and go undisturbed. But, inside the modern maximum security prison, an old-fashioned rodeo of brutality pitted guards (who called themselves "The Cowboys") against prisoners bridled by chains.

According to an indictment filed November 2, 2000, in the U.S. District Court of Colorado, on August 8, 1996, four guards punched, kicked, and body slammed prisoner William Turner. The guards contended Turner, a slightly built 45 year-old robber, stabbed two of them with a sharpened toothbrush. Turner was charged with assault and thrown, still wearing restraints, into a small holding cell. Unable to wash and covered in his own excrement due to injuries suffered in the beating, he pleaded unsuccessfully with medical staff over the next four days to be taken to the infirmary for X-rays and treatment. Turner also told anyone within earshot he didn't stab the guards, but ...

'No More Prisons' Graffiti Gets Public's Attention

It's spreading like wildfire, from New York to Seattle, Chicago to Dallas, and coming soon to an urban setting near you. It's the "NO MORE PRISONS" graffiti movement, a simple form of civil disobedience which requires only a can of spray paint and an unspoiled public canvas (such as the side of an overpass) to get the message out NO MORE PRISONS!

While protests against the prison-industrial complex have drawn upwards of several hundred people, they have largely been ignored by the news media. But, as one graffitist put it, toss up a little paint, and TV channels, alternative weeklies, and even the large daily newspapers begin to pay attention. Tagging public and corporate property with "NO MORE PRISONS" (often accompanied by the anarchy symbol) draws more attention to the prison abolition movement than so-called legitimate forms of protest ever could, the graffitists claim.

"I find it immature and shallow to write `No More Prisons' on an expensive piece of infrastructure owned by all of us and think somehow you're going to make a statement on the prison-industrial complex," said a Columbus, Ohio city official. The "No More Prisons" graffitists disagree, claiming the campaign has been a ...

Alabama Ends Chain Gang Experiment

A federal district court in Alabama has approved a settlement between Alabama state prisoners and the prison system, effectively ending Alabama's flirtation with chain gangs. The court also held that the practice of chaining prisoners to a "hitching post" is unconstitutional, cruel and unusual punishment.

Alabama state prisoners Michael A. Austin, Richard Elliot, Ogie Lee Hayes, Charles Orlander Guess, Warren Leatherwood and Kervin Goodwin filed a class-action civil rights suit under 42 U.S.C. § 1983 against Joe Hopper, the Commissioner of the Alabama Department of Corrections. They alleged that the use of "chain gangs" and "hitching posts" and the denial of visitation and toilet facilities to certain prisoners on chain gang work squads violated the First, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Under the policies challenged in the complaint, prisoners assigned to a chain gang were shackled by leg irons in groups of five with eight feet of chain between them. The prisoners were required to wear white uniforms with "CHAIN GANG" printed in black while they cut grass, picked up litter, and broke rocks, in ten-hour shifts. One or two guards supervised 25 to 40 prisoners who remained shackled to each other ...

From the Editor

September, 2001, marks the 30th anniversary of the modern prisoner rights movement in the United States. In September, 1971, prisoners in Attica, New York, rose up to protest horrendous conditions. The uprising occurred after peaceful means of protest had failed and prisoners refused to be "driven like beasts" any longer. On September 14, 1971, Governor Nelson Rockefeller ordered state police and prison guards to retake the prison, which they did. In the process, 43 people were murdered by police and guards. In the aftermath, an orgy of brutality and sadism ensued against the survivors. PLN has reported the events at Attica in the past so I won't belabor the details.

Attica was a milestone in that the state's brutality was exposed for the world to see. The squalid conditions of Attica were little different from those of hundreds of prisons around the country. "Every prison is Attica, Attica is every prison," was a rallying cry of the day.

Around the country prisoners themselves were organizing and the mass movements for civil rights, feminism, anti-imperialism, etc., supported prisoners in their struggle. The courts also began to get involved after almost 200 years of studied indifference to the plight of ...

Racist Knot of Florida Guards

The fake hunting regulations prominently posted in a Calhoun Correctional Institution colonel's office read, "OPEN SEASON ON PORCH MONKEYS." The daily kill limit was ten according to the sign, Roy Hughes, a black guard, told the St. Petersburg Times December 19, 1999. Fifty-five percent of prisoners in Florida are black, yet seventy percent of the guards are white, and complaints of racism and hate group activities are on the rise.

Dangling from the pockets of many white Florida prison guards is a cord knotted to resemble a hangman's noose. When asked about the cords during an internal probe prompted by articles exposing the activities of a secret group of racist guards in the Florida prison system, white guards claimed they were nothing more than key chains. Others had a different name for them. "I've heard them called `Nigger Knots'. Only certain people get them, and if you're in that group, they'll protect you, whatever you get into," said Captain Willie Hogan, a black guard assigned to Lancaster, who's been in the system 21 years. Hogan refused further comment, saying the department doesn't like guards talking with the media.

Many guards proudly wear the ...

Virginia Rent-a-Cell Program Expected to Net $100 Million

Virginia Rent-A-Cell Program Expected to Net $100 Million

The state of Virginia will pocket an estimated $100 million in 2001 by warehousing out-of-state and federal prisoners for a fee.

About 10% of the Virginia jail and prison population is out-of-state or federal prisoners. During the year 2000, Virginia charged between $60 and $130 per day for each such prisoner incarcerated in Virginia, due to overcrowding in those prisoners' states of conviction. The average daily cost of incarcerating Virginia prisoners in 2000 was $51.14.

In 2000, Virginia netted a tidy $78 million in cell-renting fees. Of this sum, $56 million was used for prisoner expenses, while the remaining $21.3 million went to the state's general fund.

"There is no profit here, per se ," said Dick Hickman of Virginia's Senate Finance Committee. He contends that there is no profit because the additional money goes back into the Virginia prison system.

In any event, it is difficult to understand how charging from $60 to $130 per day to incarcerate prisoners representing only a daily cost to Virginia of $51.14 does not translate into profit for Virginia. How the profit is spent is irrelevant.

Jenni Gainsborough of the Sentencing ...

Suits Claiming Racial Discrimination Plague Florida Prisons

Citing incidents dating back to 1993, over 100 current and past employees are suing the Florida DOC for perpetuating a "long standing custom or policy of racial discrimination." What began as two law suits in December 1999 increased to four suits by March 2000, and now involves the Florida NAACP. Depositions taken as recently as April 2001 suggest that DOC officials have not been as forthcoming as they would like to appear.

Black prison guards allege numerous incidents of verbal, physical and administrative abuse. Louis Brown, a black recreation supervisor at the Lowell Correctional Institution, reports having come to work and finding his office ransacked. Twice the letters "KKK" were spray painted across his bulletin board. Nothing was ever done to address the issue.

Sgt. Paul Patton complained of having to patrol the perimeter of Charlotte Correctional Institution in vehicles that had "Niggers Go Home" carved inside. Reports to his supervisors went unheeded and no record was ever made of his complaints.

At the Union Correctional facility a major was demoted and forced to accept an $18,000 pay cut when he referred to his new black supervisor as "another nigger on the compound."

The scope of the problem is ...

Private Prison Woes in Ohio

Less than two years after it opened, the second privately operated prison in the state of Ohio is already in trouble. CiviGenics, a private prison company out of Massachusetts, has succumbed to pressure applied by the state employees union. On January 10, the director of the Ohio Department of Rehabilitation and Corrections (DRC), Reginald A. Wilkinson, informed CiviGenics that when its contract expired on June 30, 2001, it would not be renewed. CiviGenics lost the contract because of failure to maintain adequate qualified staff and security requirements.

By law, the North Coast Correctional Treatment Facility is obligated to contract with a private operator. Officials for the state employees union feel that the law should be changed. They feel that by combining the 550 bed North Coast facility with the 1,400 bed Grafton Correctional Institution, the state would save between $4 million and $6 million in operating costs. Union staff member Pat Hammel points to the fact that only 500 prisoners are currently housed at the North Coast facility. Under the union proposal, 200 prisoners from the Grafton facility could move in immediately.

North Coast was originally designed as a treatment center for non-violent felons convicted of drunken driving. It ...

'Invisible' Prisoner Gets $36,200 for Wrongful Imprisonment

A Mississippi man who was improperly jailed for nearly 10 months because of a "bureaucratic snafu" was awarded just $36,200 by a federal jury in Jackson, Mississippi in October 2000.

Joseph Jones, a Jackson mechanic, was stopped by a state patrol officer in June 1994, at which time the ...

Oklahoma Governor Takes Entrepreneur's Bribe

Oklahoma officials are investigating the propriety of $240,000 in cash gifts given to that State's governor, Frank Keating. Jack Dreyfus, an entrepreneur who hopes to convince Oklahoma prison officials to use Dilantin (a seizure medication) to control violent prisoners, made the gifts.

After receiving the cash from Dreyfus, Keating arranged meetings between Dreyfus and former Oklahoma Department of Corrections (DOC) Director, Larry Fields. Dreyfus claims that Dilantin is a wonder drug that will control violent prisoners and wanted to pitch the drug's wide-scale use to Fields.

Fields had DOC doctors evaluate Dilantin. They were unimpressed by Dreyfus' claims and refused to prescribe the drug except for seizure control. Although Dilantin has been used in the treatment of Parkinson's disease, it is known to be a highly toxic drug with a number of known adverse reactions to the central nervous system (CNS). Also, many organ systems can potentially be adversely affected by this medication.

Keating later forced Fields out of office in 1997. Keating claims, however, that Fields was forced out because he was too soft on prisoners, not because Dreyfus' prison Dilantin program was rejected.

Keating has since arranged meetings between Dreyfus and the new DOC ...

BOP Guards Smuggle Sperm

In October, 2000, federal prison guards Troy Kemmerer and Todd Swineford were arrested and indicted for accepting money to help smuggle cryogenic sperm kits to a New York City fertility clinic.

The investigation began over two years ago when convicted hit man Kevin Granato sat in visitation at LSCI_Allenwood bragging about a toddler he called "my son." The scene would not have been unusual except that Granato has been locked up since 1988. Ellen Cella, the U.S. attorney who prosecuted Granato, said, "If he has a child less than 10 years old then something funky happened."

A federal agent, posing as a girlfriend of one of the prisoners, approached Kemmerer with an offer of $5,000 to smuggle a sperm kit out of the prison. Kemmerer accepted the money and was arrested and charged with bribery.

"We have a zero tolerance policy for staff misconduct," said Edward Berry, spokesman for the prison. He pointed out that Swineford quit months ago because he was believed to be "very close" to members of organized crime. Swineford is suspected of smuggling various types of contraband into the prison, including food, alcohol, and sperm kits.

Altogether, at least five mobsters are believed to ...

FPI Has Sovereign Immunity in Fraud Action

The D.C. Circuit Court of Appeals has held that Federal Prison Industries, Inc. (FPI) is entitled to sovereign immunity in a qui tam suit brought under the False Claims Act (FCA), 31 U.S.C. §§ 3729 et seq.

Gilbert W. Galvan, a federal prisoner, sued FPI, under the FCA, for falsely certifying cables and weapons parts it produced for the military. The FCA allows a person to initiate a suit in the government's name ( qui tam ) against a party who has committed fraud against the government. Both the government and suing party share in any recovered money.

The government raised two defenses: (1) the court lacked subject matter jurisdiction because the action pitted the executive branch of the government against itself and (2) sovereign immunity. The District Court dismissed the suit for nonjusticiability. Galvan appealed.

In an attempt to circumvent sovereign immunity, Galvan alleged that the FCA and the organic statute which created FPI, 18 U.S.C. § 4121, contained waivers of sovereign immunity. The D.C. Circuit noted that under Lane v. Pena , 518 U.S. 187 (1996), it can only find a waiver of immunity if such a waiver is unequivocally expressed in statutory text and ...

Washington Supreme Court Upholds 35% Seizure Law

Washington Supreme Court Upholds 35% Seizure Law; But Prisoners Entitled To Interest From Mandatory Savings Accounts

The Washington Supreme Court has declared RCW § 72.09.480 to be constitutional. The statute directs the Washington Department of Corrections (DOC) to seize 35% of most funds received by its prisoners, including money sent by spouses, purportedly to offset costs of incarceration.

RCW § 72.09.480(2) distributes the seized funds (i) 5% to a public safety and education account for crime victims' compensation; (ii) 10% to personal prisoner savings accounts; and (iii) 20% to DOC to offset incarceration costs (the 20% COI actually goes to prison industries and results in a subsidy to private business).

Suzanne Dean was the named plaintiff in a class action brought by prisoners' spouses in opposition to the statute. She filed suit after 35% of funds she sent to her prisoner husband was seized by the DOC.

She filed suit in the King County Superior Court, where judge Glenna Hall presided. Judge Hall found that the statute violated the Uniformity Clause of Article VII § 1 of the state constitution and the Takings Clause of both the state and federal constitutions. She further found that the class was ...

New York Prisoners Prosecuted

The prosecution of prisoners in Greene County New York is a high priority for District Attorney Terry Wilhelm. In the first nine months of his tenure, Wilhelm secured 23 indictments from the Greene and Coxsackie Correctional Facilities. His predecessor, Ed Cloke, prosecuted only 13 cases in the two previous years. That amounts to a 73 percent increase for the only two prisons located in Greene County.

The biggest difference between Wilhelm's approach and that of the previous administration is his prosecution of weapons possession violations. Cloke's priority in weapons cases focused on whether a prisoner's intent was aggression or defense. "The guy who just had it for defensive purposes, we may have let go," he said. "That wasn't what I felt we should be spending most of our time on."

Wilhelm feels that the prosecution of all weapons cases is crucial. "I want to make the correctional facilities safer," he said. Wilhelm was an assistant prosecutor under Cloke. When he took over Cloke's office he immediately contacted officials at the Coxsackie and Greene facilities. Prison officials were elated. A spokesman for the Corrections Department says, "D.A. Wilhelm has become a trusted ally to the ...

No Workers' Compensation for Ohio Slave Laborers

An attempt by Ohio prisons to manufacture items for retail business had to be cancelled because it could not provide Workers' Compensation insurance for prisoners. State Inspector General Thomas P. Charles says the state is not at fault. Rather, the intervention of the U.S. Bureau of Justice Assistance has made the project untenable.

For a time, the federal Prison Industry Enhancement Certification Program allowed incarcerated workers to produce items for outside businesses. Daniel L. Dooley filed against the state alleging that the project was not providing workers' compensation for the prisoners. Dooley manages the P.I.E. project at the Women's Reformatory in Marysville, Ohio.

Complications with the project began in 1998 when a federal audit revealed that state employment laws precluded prison compliance. Certification for the project first came in 1995 and prisoners made jewelry from hardware. Later, prisoners manufactured drop cloths and tent packs.

Initially, federal officials who gave the state 28 months to solve the problem overlooked compliance violations. Unable to comply, the state shut down the program in March 2000, a month before its certification was cancelled.

Source: Associated Press .

Former BOP Prisoner Settles Medical Suit for $355,000

The federal government wrote Terry Dean Scearce a check for $355,000 in November, 2000, to settle his claim that he suffered a stroke in 1998 because prison officials did not give him the medicine prescribed to treat his high blood pressure.

Scearce, in his late 50's, was being ...

CCA Gets Tangled in Financial Quagmire

CCA Gets Tangled In Financial Quagmire

Corrections Corporation of America said it is contesting an $8.1 million request for payment from Merrill Lynch & Company related to its hiring of the investment firm in late 1999 for advice on a company restructuring.

In a filing with the Securities and Exchange Commission, CCA also said its insurers have refused to cover damages from lawsuits by employees and prisoners that seek more than $50 million. The lawsuits include one brought by CCA employees in 1998 seeking more than $30 million related to a stock ownership plan and another by a woman demanding $20 million for an alleged assault by two former employees of CCA's TransCor unit. A third suit deals with a jury verdict of more than $3 million stemming from charges of mistreatment against juveniles at a South Carolina prison. All three cases were previously reported in PLN .

In the Merrill Lynch dispute, CCA, then called Prison Reality Trust, and a former sister entity, had both retained the investment firm as they faced problems raising money for growth and a looming deadline to pay a special dividend. CCA said Merrill Lynch claims last year's merger of the company and the affiliate constitutes a restructuring transaction that should have resulted in fees. But CCA said the claims are not valid and it would contest any legal action initiated by Merrill Lynch.

CCA let Merrill Lynch go in 2000, after two proposed transactions for investors to buy stakes in the company in exchange for a cash infusion fell apart. CCA then decided to merge with its affiliate unit on its own.

CCA also reached an agreement in October, 2000, to settle eight shareholder lawsuits for about $123 million. In the separate agreement, CCA is expected to give the plaintiffs an approximated 5 percent stake, or 17.2 million shares, in addition to any shares the plaintiffs already own. The company didn't admit any wrongdoing in connection with the lawsuits, which were combined from about 17 separate shareholder actions filed since mid-1999.

Terms of the settlement agreement call for plaintiffs to receive about $47.5 million in cash, and common stock valued at about $75.4 million by CCA. The company is required to pay additional cash or issue additional shares if its stock price doesn't hit $4.38 by August 31, 2001. The company's shares have recently been hovering around $0.80 to $0.90 per share. That's a major plunge from the per share high in the mid-$40 range back in 1998 when private prison company stocks were a hot Wall Street item.

Barry Holman, policy analyst with the National Center on Institutions and Alternatives, a Washington, D.C. think tank promoting alternatives to prisons, said the state of the private prison industry shows "they haven't been successful at what they're doing, that they haven't done well from a financial savings standpoint, and they haven't done well from prisoner safety and public safety standpoints."

Sources: Bloomberg News ;The Wall Street Journal .

Feds Tally the Death Penalty

In December, 2000, the Bureau of Justice Statistics analyzed the United States' death penalty in a report titled "Capital Punishment 1999." It is an in-depth analysis of how the death penalty was applied in the United States in 1999, plus a preliminary execution report for 2000.

From 1998 to 1999, the number of persons in all jurisdictions sentenced to death rose to 3,527 men and women. The execution tally is 68 in 1998, 98 in 1999, and 85 in 2000. The 1999 executions were second in number only to the 105 executions in 1951. In 1998, 1999, and 2000, Texas led all jurisdictions in executions. According to the report, the 40 persons executed in Texas in 2000 "represents the most executions in a single State in any year since the Federal Government began tracking executions on an annual basis."

While Texas leads in executions, five states _ Texas, Virginia, Florida, Missouri, and Louisiana _ committed 64% of all executions from January 1, 1977, through December 31, 1999. Texas, Virginia, Missouri, Arizona, and Oklahoma were the top five of the twenty states carrying out executions in 1999, with 72% of total executions. Texas also has carried out the most executions ...

Environmental Concerns Halt Construction of Pennsylvania Prison

Environmental Concerns Halt Construction Of Pennsylvania Prison

The wretched and overcrowded conditions at Washington, D.C.'s Lorton Correctional Complex have resulted in Congress giving the federal Bureau of Prisons (BOP) responsibility for housing all D.C. prisoners. Lorton, located in Fairfax, VA, must close by the end of 2001, and all prisoners there transferred to federal or privately operated prisons.

One of the resulting private prisons has been contracted by the BOP for construction by Houston based Cornell Corrections, Inc. on 197 acres of land located in Decatur and Morris Townships, Clearfield County, Pennsylvania. The area is located 250 miles northwest of D.C. It is a region of high unemployment (9.7 percent in 1999) located in the rural Moshannon Valley, where better economic times left with the strip mines which tore up the landscape, re-sculpted it, and gradually disappeared. "It's like they looked at a 300 mile radius, hunted the area with the greatest unemployment and said, `Let's put it there. That's the spot,'" said Pennsylvania state Senator John Wozniak, a Democrat whose district covers eastern Clearfield County.

While it appears that many of the locals are in favor of the new prison (more ...

Denial of Religious Diet Violates First Amendment

The Court of Appeals for the Eighth Circuit held that prison officials' denial of a religious diet violated the First Amendment by substantially burdening a state prisoner's religious beliefs.

Arkansas state prisoner Kelvin Love is a self-proclaimed adherent of the "Hebrew religion." His study of the Old Testament has led him to conclude that it is wrong for him to leave his residence or to work on the Sabbath _ a period which he considers to run from sundown on Saturday to sundown on Sunday. His belief about resting on the Sabbath extends to a belief that he should not benefit from work others perform on the Sabbath. Accordingly, Love believes that he "is neither permitted to eat food prepared by others on the Sabbath, nor to have others serve him through their work on the Sabbath."

To accommodate his beliefs, Love requested that prison officials provide him with peanut butter and bread in his cell on Saturday so that he might prepare sandwiches to consume in his cell on the Sabbath. Prison officials refused to provide Love with food from the kitchen for his Sabbath meals.

Love filed suit under 42 U.S.C. § 1983, alleging the violation ...

Legal Research: How to Find and Understand the Law

by Stephen Elias and Susan Levinkind

Legal Research does exactly what its title indicates; it explains how to find and understand the law. The book is written in easy to understand language, while imparting a vast amount of information in a comprehensive manner.

The book is broken down into sections and subsections which explain all aspects of conducting efficient, effective legal research. For example, readers will find sections on everything from how to properly use a digest or index to the more rudimentary explanations of what a case cite is and what it means.

In addition to teaching the reader how to use and understand conventional research materials commonly found in a law library, the book explains in great detail how to find the same information by using electronic resources, like the Internet. In fact, at the end of every section the reader will find both conventional library and Internet exercises designed to test newly acquired research skills.

Moreover, Legal Research explains in detail how to focus a particular research question, and explains how to identify what authority will be most important to solving the query. The book also explains why a particular source of authority carries greater precedential value ...

Summary Judgment Denied on BOP Excessive Force Claims

The Federal District Court in Kansas has denied summary judgment on a prisoner's claims of excessive force. The Court also held guards were not entitled to qualified immunity on these claims.

In 1997, Felmon Laury was placed in the Special Housing Unit (SHU) in the U.S. Penitentiary at Leavenworth. Three days later, Laury, believing a teacher in the Education Department was responsible for his placement in SHU, wrote a letter to his wife in which he claimed to have had sex with the teacher. The letter contained the teacher's address and phone number with instructions for Laury's wife to contact Internal Affairs. In response to the letter, Associate Warden Carl (or R.C.) Greenfield told Laury that "Before you leave this institution, I'm going to kick your ass."

From here a series of abuses began. Laury's address books were confiscated with one not returned. When he complained, he was beaten. Laury asked to use the phone but received only derogatory comments and racial slurs. When he complained, he was beaten. Laury was fed sack lunches instead of hot meals guards claiming Laury threw his tray at them. Later, using handcuffs as brass knuckles, Laury ...

Virginia Excessive Force Claim Set for Trial

A federal district court in Virginia denied Deputy Sheriff F.C. Bruce's motion to dismiss a claim brought by Kelvin Watford in which Watford complained that Bruce assaulted him, resulting in "bruising, scarring, and swelling." The Court discussed " de minimis injury" and found that Fourth Circuit caselaw appeared to conflict with U.S. Supreme Court rulings.

Watford was a pre-trial detainee at the Virginia Beach Correctional Center in 1999 when he alleges that Bruce removed him from his cell to a nearby room, then beat and choked him without provocation. After exhausting administrative remedies, Watford sued under 42 U.S.C. § 1983, alleging cruel and unusual punishment. Bruce moved to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim for relief. In particular, Bruce argued that Watford's injuries were temporary and are de minimis injuries, and "if the& detainee's injuries [are] de minimis , then the force used to inflict the `injury' is per se de minimis , and no viable cause of action exists."

Following the rule in Haines v. Kerner , 404 U.S. 519, 92 S.Ct. 594 (1972), regarding construction of pro se complaints, the Court held that Watford's ...

Snitch Culture: How Citizens Are Turned into the Eyes and Ears of the State

by Jim Redden, Feral House, 2001, 235 pages

Snitch Culture is a timely examination of how personal and technological snitching is used by the state and by private organizations, in conjunction with informational databases, to obliterate the privacy of Americans. The author, Jim Redden, formerly published PDXS , a quasi-counterculture newspaper in Portland, Oregon.

Judas Iscariot is the most well-known snitch in history. Mr. Redden relates in considerable detail how the state, in general, and its law enforcement network in particular, is dependent on large numbers of people emulating Judas' example of snitching on Jesus Christ for 30 pieces of silver. They are also duly rewarded with enticements that can include a reduced sentence, dropped charges, informant payments and deflecting their guilt onto others.

The state's addiction to snitches is illustrated by the U.S. Supreme Court's decision in 1999 to let stand a lower court ruling in U.S. v. Singleton , that federal prosecutors are exempt from the federal statute prohibiting the bribery of witnesses to testify favorably for the government.

The book also relates a few of the many known horror stories of innocent people who have been victimized by snitches unconcerned with the truth. Their ordeals ...

Failure to Protect Confidential Informant Not Deliberate Indifference

The Court of Appeals for the Second Circuit held that the conduct of a county, when housing a prisoner with another prisoner against whom he had acted as a confidential informant, did not rise to the level of an Eighth Amendment violation.

Neville Rangolan and his wife Shirley brought suit ...

Rhode Island Prison Strip Searches Struck Down

The Court of Appeals for the First Circuit has held that two Rhode Island Department of Corrections (RIDOC) policies routinely subjecting all males committed to the state prison to strip searches and visual body cavity searches are not reasonable under Bell v Wolfish , 441 U.S. 520, 559 (1979). This ruling upholds the decision of the U.S. District Court of Rhode Island.

Craig L. Roberts, Sr., was a passenger in a car stopped for expired registration stickers. A computer check revealed that Roberts had an "outstanding body attachment" from Rhode Island's family court. Although Roberts produced an order from the court revoking the attachment, he was nonetheless taken into custody and transported to RIDOC's Intake Service Center at the Adult Correctional Institution in Cranston, RI. Both while being processed in and, the same day, processed out for release, Roberts was subjected to strip searches and visual body cavity searches. These searches are routine policies of RIDOC, because Rhode Island has a unified prison system that houses and mixes both pretrial detainees and convicted prisoners. The intake center is considered a maximum security prison.

The Court of Appeals observed that Bell holds that "both convicted prisoners and pretrial ...

$350,000 Verdict in Dirty Dancing Suit; Punitive Damages Vacated

AU.S. district court jury in Washington, D.C., awarded female D.C. Jail prisoner Sunday Daskalea $350,000 in compensatory damages and $5 million in punitive damages against the District and the Department of Corrections Director, Margaret Moore, for Daskalea's having been sexually assaulted and forced by guards ...

Six Month Denial of Exercise Presents Section 1983 Claim

An Illinois federal district court ruled that a prisoner's claim that he was denied out-of-cell exercise during a six month prison lockdown "present[ed] a cognizable claim despite the penological justification proffered by the defendants." The Court also ruled that Defendants are not entitled to qualified immunity nor shielded from liability by "bare denials" of personal involvement in the prisoner's loss of exercise.

Glenn Delaney is a prisoner in long-term segregation in the Stateville Correctional Center (SCC). From April 18, 1996, to October 28, 1996, SCC was on lockdown. Before and after lockdown, Delaney had a weekly, five hour out-of-cell exercise period. During lockdown, he was continually confined in his cell, resulting in depression. Delaney filed suit against Warden George DeTella, a unit manager, and five supervisory prison officials under 42 U.S.C. §1983, claiming Cruel and Unusual Punishment. Defendants were sued in their individual and official capacities.

Defendants moved for summary judgment on three grounds: qualified immunity, a legitimate penological justification as to denial of exercise, and (excluding the Warden) lack of personal involvement in restricting Plaintiff's exercise. The Court rejected all defenses and denied summary judgment. In a footnote, the Court deemed most of ...

PLRA Does Not Apply to Habeas Corpus Actions

The Court of Appeals for the Sev-enth Circuit held that the requirements of the Prison Litigation Reform Act (PLRA) do not apply to properly characterized habeas corpus petitions under 18 U.S.C. §§ 2241, 2254, or 2255, finding that those actions are not "civil actions" within the meaning of the PLRA. The court also held that the certificate of appealability requirement that applies to habeas actions does not apply to a state prisoner's action under § 2254 that challenges the results of a prison disciplinary hearing resulting in the denial of good-time credits.

The Court consolidated two cases for purposes of oral arguments and opinion. First was the case of federal prisoner Jimmy Walker, who was disciplined for damaging a cell door and sanctioned to the forfeiture of 14 days of good time credits. He filed a petition for a writ of habeas corpus under § 2241 but the District Court issued a sua sponte dismissal of the action prior to service and Walker appealed.

The second case was that of Indiana state prisoner Joseph Finfrock. Finfrock filed a habeas corpus petition under § 2254, attacking five separate disciplinary decisions, three of which resulted in the retraction of good-time credits. Frinfrock's ...

No Interlocutory Appeal for Good Faith Defense

The Court of Appeals for the Seventh Circuit held that the requirements of the Prison Litigation Reform Act (PLRA) do not apply to properly characterized habeas corpus petitions under 18 U.S.C. §§ 2241, 2254, or 2255, finding that those actions are not "civil actions" within the meaning of the PLRA. The court also held that the certificate of appealability requirement that applies to habeas actions does not apply to a state prisoner's action under § 2254 that challenges the results of a prison disciplinary hearing resulting in the denial of good-time credits.

The Court consolidated two cases for purposes of oral arguments and opinion. First was the case of federal prisoner Jimmy Walker, who was disciplined for damaging a cell door and sanctioned to the forfeiture of 14 days of good time credits. He filed a petition for a writ of habeas corpus under § 2241 but the District Court issued a sua sponte dismissal of the action prior to service and Walker appealed.

The second case was that of Indiana state prisoner Joseph Finfrock. Finfrock filed a habeas corpus petition under § 2254, attacking five separate disciplinary decisions, three of which resulted in the retraction of good-time credits. Frinfrock's ...

Possibility of Life in Control Unit Doesn't Mitigate Death

Possibility of Life In Control Unit Doesn't Mitigate Death

The Court of Appeals for the Seventh Circuit has held that the possibility of life imprisonment in a control unit is not a mitigating factor in a federal death penalty case.

Darryl Lamont Johnson, a federal prisoner, is allegedly a high-ranking member of the Gangster Disciples, a large Chicago street gang. Johnson was convicted of ordering the murder of two Gangster Disciples who were cooperating with federal authorities in an investigation of the gang. During the trial, the judge refused to allow the defense to introduce evidence of the possibility of life imprisonment in the federal control unit at Florence, Colorado, as a reason for the jury not to assess the death penalty. Johnson received the death penalty and appealed.

During Johnson's trial, in rebuttal, the government called a former assistant warden from Florence. The warden testified that the Bureau of Prisons (BOP) is forbidden by law to confine a prisoner for life in a control unit on the basis of evidence presented at his trial. The Seventh Circuit noted that although this testimony was an improper statement of law by a witness, the defense failed to object to ...

PAMII Act Requires Release of Mental Health Records

A federal district court in Louisiana has held that federal law requires prison officials to release a prisoner's mental health records for investigation of claims of mistreatment.

Prisoner William Ford sent a letter to the Advocacy Center complaining that he has a history of mental illness for which he was receiving treatment and medication, and claimed a new physician had taken him off his medication. Ford believed the medication was necessary to control his symptoms and that the discontinuation of the medication resulted in his condition deteriorating.

The Advocacy Center sent two requests for Ford's mental health records accompanied by a consent form and waiver of confidentiality signed by Ford. After the second request Kelly Ward, the Warden of David Wade Correctional Center, stated that prisoners' records would only be released to a court for in camera inspection, pursuant to Louisiana law.

The Advocacy Center filed a 42 U.S.C. § 1983 action alleging the Defendants violated its rights to act under the Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U.S.C. § 10801 (PAMII Act). Under the PAMII Act, eligible protection and advocacy systems receive certain allotments if they (1) protect and advocate ...

Ninth Circuit Reverses Time-Barred Habeas Petition

The Ninth Circuit Court of Appeals, sitting en banc , reversed a district court's dismissal of a federal habeas petition as time barred, and remanded the case to the district court to develop the record regarding whether the prisoner was entitled to a finding of an "impediment" under 28 U.S.C. § 2244(d)(1)(B), or to equitable tolling.

State prisoner Anthony Whalem/Hunt filed a pro se petition for habeas corpus in the district court on October 28, 1998. Because his direct appeal became final on July 23, 1996, the Court dismissed the petition as being time-barred. Whalem/Hunt appealed and a panel of the Ninth Circuit affirmed. Whalem/Hunt v. Early , 204 F.3d 907 (9th Cir. 2000). The entire Court ordered that the case be reheard en banc and directed that the panel opinion not be cited as precedent. Whalem/Hunt v. Early , 218 F.3d 1078 (9th Cir. 2000).

On rehearing, Whalem/Hunt argued that his petition is not time-barred because: (1) the unavailability of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in the prison law library before June 1998 was an "impediment" to his filing under Section 2244(d)(1)(B ...

Maryland Court Ruling on Tobacco Smoke Prompts Settlement

A Maryland federal district court's ruling denying summary judgment in an "environmental tobacco smoke" (ETS) case has prompted the Maryland Department of Public Safety and Correctional Services (DOPSACS) to ban tobacco, matches, and lighters at all Maryland state prisons, effective June, 2001, according to published reports. As quoted in news reports, Plaintiffs' attorney Andrew Freeman said, "[Prisoners] are supposed to be sentenced to a period of incarceration, not to death by lung cancer or heart attacks." The settlement effectively ends seven years of litigation.

The case began as multiple, separate claims by prisoners against DOPSACS officials and later became consolidated as a class action. The lead representative plaintiff was Carol Ann McIntyre. The plaintiffs alleged that they had been repeatedly, involuntarily exposed to ETS during their incarceration, resulting in both present health problems and the potential for future, grave health problems. They further alleged that ETS was present in Maryland prisons despite existing DOPSACS policies prohibiting smoking in specified areas of the prisons. Plaintiffs brought actions against DOPSACS under 42 U.S.C. § 1983, alleging Eighth Amendment violations, and under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, et seq , and the Rehabilitation Act (RA), 29 ...

Ohio Death Row Prisoners Sue Over Last Words

An Ohio federal district court refused to dismiss a challenge to an Ohio policy prohibiting condemned prisoners from giving last statements. The Court also discussed the PLRA's administrative exhaustion requirements and mootness concerns.

Ohio Death Row prisoner Fred Treesh and another (unnamed) prisoner have challenged the State of Ohio's policy, SOCF W-05-94, which bars prisoners from making a final audible statement to spectators. The policy permits the condemned to write a final statement six hours prior to execution, which will be typed and distributed following the prisoner's death. The warden has unfettered power to censor or edit the prisoner's last words.

The policy challenge asserts, first, that condemned prisoners have an affirmative First Amendment right to make a final, oral statement, and, second, that the policy, as applied, violates the First Amendment. The plaintiffs seek to prohibit enforcement of the policy and to restore the right to make a final oral statement. In two opinions, the defendants lost on a motion to dismiss due to mootness and lack of ripeness and won non-prejudicial dismissal of Count I of Plaintiffs' claims for failure to exhaust administrative remedies.

The State argued for dismissal on mootness and ripeness because ...

Dismissal of Prisoner's Suit for Missing Evidentiary Deadline Reversed

The Court of Appeals for the Seventh Circuit has reversed the dismissal of a prisoner's pro se civil rights suit for missing a single pre-trial deadline. Bobby Ray Long, an Indiana state prisoner, filed a civil rights suit in federal court under 42 U.S.C. § 1983, alleging that prison officials failed to protect him from other prisoners while he was incarcerated. During a time period of over one year of representing himself, Long never missed a deadline or asked for an extension of time. During the same period, on multiple occasions, the defendants asked for extensions of time to file their answer and to file discovery responses.

Following a telephonic conference, a scheduling order was issued. The order required the defendants to serve Long with a final proposed settlement by February 5, 1999, and instructed Long to file his list of witness, exhibits, and contentions by April 2, 1999. On February 1, 1999, defendants filed a motion for summary judgment.

Defendants refused to file a proposed settlement, filing instead a statement that they would file a proposed settlement after the District Court ruled on their motion for summary judgment. Believing that the motion for summary judgment had suspended ...

News in Brief

Brazil: On June 29, 2001, former police colonel Ubiratan Guimaraes, 58, was convicted of killing 102 prisoners in 1992 when he commanded the police takeover of Carandiru Prison after an uprising by prisoners. Officially 111 prisoners were killed in the uprising, including 9 stabbed to death by other prisoners, but some human rights groups say the death toll was closer to 300. Most of the prisoners were gunned down in their cells after police retook the prison. Guimaraes was sentenced to 632 years in prison, but under Brazilian law, the maximum he can serve is 30 years. Guimaeres vowed to appeal and remains free on bond. He told the court: "I have a clear conscience." Guimaraes is the first government official ever to be convicted of killing a prisoner in Brazilian history.

Brazil : On July 8, 2001, 105 prisoners escaped from the enormous Carandiru Prison in Sao Paulo by digging a tunnel from the prison to the city's sewer system. The escape took place in mid-afternoon with the escaped prisoners disappearing into the streets of the city. The prison lies blocks from the city's downtown and holds more than 10,000 prisoners.

CA: On June 9, 2001, Karen ...

 

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Disciplinary Self-Help Litigation Manual