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Prisoner Education Guide

Prison Legal News: January, 2002

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Volume 13, Number 1

In this issue:

  1. ALEC in the House: Corporate Bias in Criminal Justice Legislation (p 1)
  2. From the Editor (p 5)
  3. Private Prison Lobbying Group Founded (p 6)
  4. Ohio Eliminates Prison Oversight Committee; Reduces Prison Funding (p 6)
  5. Corrections Corporation of America Announces Closing of Youngstown Prison (p 7)
  6. World Court Upholds Foreigners' Right to Contact Their Embassies (p 7)
  7. Iowa Law Library Consent Decree Terminated Under PLRA (p 8)
  8. Michigan Prisoners Awarded Nearly $7,000 for Retaliatory Transfers (p 8)
  9. West Virginia Supreme Court Fails to Cure Prison Overcrowding - Again (p 9)
  10. Escapes Are Violent Crimes Under U.S. Sentencing Guidelines (p 10)
  11. CCA Guard is "Public Official" Under Bribery Statute (p 10)
  12. Complaint Claims Texas Psychiatrist Molested Prisoner Patients (p 11)
  13. Missouri and Benetton Settle Lawsuit Over Death Row Advertisements (p 11)
  14. Tarrant County (Texas) Jail's 'God Pod' Unconstitutional (p 12)
  15. Philadelphia City Prison Fined $1 Million (p 13)
  16. Released NYC Prisoners Win Mental Health Benefits (p 14)
  17. Attorney Seeks Answers in Aftermath of New Mexico Riot (p 14)
  18. Denial of Clothing to Arrestees States Claim for Relief; Suit Settles for $31,500 (p 15)
  19. Pennsylvania Court Upholds Part of Prisoner's Request for Public Records (p 15)
  20. Colorado ACLU Settles Restraint Board Suit (p 16)
  21. California Pays for Guard's Sexual Misconduct (p 17)
  22. BOP Smoking Suit Dismissed (p 19)
  23. $250,000 in Hawaii Beating Death (p 19)
  24. Indiana Prisoners Riot in CCA Prison (p 19)
  25. Colorado Restraint Board Death Case Settled (p 20)
  26. Texas Gives $2 Million to Proselytizing Prison Program (p 22)
  27. Ohio Appellate Court Holds No Privacy Right in Urine (p 23)
  28. Damages Awarded in Ohio Disciplinary Suit (p 24)
  29. Washington DOC Suffers Yet Another Multi-Million Dollar Negligent Supervision Settlement (p 25)
  30. No Refund or Cancellation of Filing Fees on Appeal (p 26)
  31. Indigent Texas Prisoners Subject to 31 Day Statute of Limitations (p 26)
  32. Michigan Disciplinary Hearing Class Action Settled (p 27)
  33. Eighth Circuit Applies Turner Test to Control Unit Conditions Case (p 28)
  34. New Trial Ordered in Excessive Use of Force Suit (p 28)
  35. En Banc Third Circuit Rules on PLRA Three Strikes (p 29)
  36. Prisoners Entitled to Hearing Before Consent Decree Termination (p 29)
  37. New Jersey Prisoners Exempt from Exhaustion Requirement (p 30)
  38. U.S. Marshal's Conviction for Raping Prisoners Affirmed (p 30)
  39. PLRA Screening Applies Regardless of Fee Status (p 30)
  40. News in Brief (p 31)

ALEC in the House: Corporate Bias in Criminal Justice Legislation

The past twenty years have marked a dramatic shift to more harsh criminal justice policies. While it is common knowledge that politicians beat the "tough on crime" drum to win elections, one has to wonder where they find the time to draft the reams of draconian legislation passed in recent years. Wonder no more.

Hundreds of remarkably similar pieces of criminal justice legislation were introduced in cookie-cutter fashion in states throughout the country in the mid-1990's. Their origin can be clearly traced to the influence and work of one conservative organization: the American Legislative Exchange Council (ALEC).

ALEC is a Washington, D.C.-based public policy organization that supports conservative legislators. Launched in 1973 by Paul Weyrich (a founder of the ultra-conservative Heritage Foundation), ALEC exemplifies the cozy relationship between big business and politicians that so often results in pro-business, anti-human legislation.

With over 40 percent of state legislators as members, ALEC represents a formidable force in state capitols across the country. Of the more than 6,000 state legislators in the United States, approximately 2,500 are members of ALEC, including scores who hold key leadership positions. About 70% of these legislators are Republicans; the remainder are primarily ...

From the Editor

Welcome to the New Year. This will mark PLN's thirteenth year of publishing, and we hope to make significant strides in terms of increasing both PLN 's circulation and its size. We need an additional $500 per month to add four pages to PLN . As soon as we get that we will expand to 40 pages to bring you still more news and information.

By now subscribers should have received PLN 's 2001 fundraiser and reader survey. If you haven't donated to PLN's matching grant campaign, please do so. Those donations and the matching grant campaign cover PLN's operating expenses to bring you this magazine each month. To date, we have raised $ 5,684. We need to raise an additional $ 9,316 in order to qualify for the full $15,000 matching grant amount. We need to raise the additional funds by March 31, 2002, to qualify.

I'd like to encourage readers to answer our reader survey. The last survey we did was in 1999. I remember one subscriber who said she had thrown hers away because "no one reads the answers to those things." I can't speak for other publications but both I ...

Private Prison Lobbying Group Founded

A group of private prison has formed an alliance to promote the growth of the private prison industry and to further develop prisoners as a marketable commodity. Among the founding members of the Association of Private Correctional and Treatment Organizations (APTCO) are industry giants Corrections Corporation of America, Wackenhut Corrections Corp., and Houstonbased Cornell Corrections, Inc., along with fourteen other service providers with a stake in the private prison industry.

The private prison industry as a whole has been battered by various scandals and lawsuits the past few years, which has resulted in a worsening public image for the companies. [PLN has reported on these events as they have unfolded.]

John O. Ferguson, CEO of CCA, attributes part of the industry's image problem to "misinformed statements" that could be addressed by a trade group. In other words, the industry has found it's in need of unified spin control.

According to Steve Logan, CEO of Cornell and president of the newly formed trade group, "APTCO provides a good platform to speak in one voice." Among the goals listed by the organizers are pooling data on issues such as reduction in the return rate of prisoners to private prisons (it ...

Ohio Eliminates Prison Oversight Committee; Reduces Prison Funding

The Ohio legislature reduced funding for the state prison system that will result in the elimination of 1,100 jobs within the Department of Rehabilitation and Correction (DORC). The May 2001 legislative action also eliminates a prison oversight committee.

Ohio prison officials began hiring hundreds of prison guards after a deadly 11-day uprising at the Southern Ohio Correctional Facility near Lucasville in April 1993. Now they are poised to offer a $22.5 million buyout to eliminate hundreds of jobs around the state. The DORC calculated that about 1,300 employees would be eligible for the buyout, with an estimated 741 (57%) expected to accept the offer.

The Ohio Civil Service Employees Association, the union representing prison workers, predicted there will be serious incidents involving staff and prisoners as a result of the job cuts.

The deal will cost the state about $22.5 million, but is claimed to ultimately save $60 million in payroll costs, according to Thomas J. Stickrath, assistant DORC director. The alleged savings is contradicted, however, by the enormous expenditures on overtime payments for state employees, including prison workers. A Columbus Dispatch computer analysis of state employee payroll records found that during the year 2000, over ...

Corrections Corporation of America Announces Closing of Youngstown Prison

Corrections Corporation of America (CCA) announced it would close its Youngstown, Ohio prison on August 18, 2001. The shutdown means the loss of more than 500 jobs. So much for the recession-proof industry.

The 2,016-bed Northeast Ohio Correctional Center last housed 350 prisoners from the District of Columbia. The Nashville-based CCA said the decision to close the prison was made after the District of Columbia decided not to renew its contract. The U. S. Bureau of Prisons is taking over jurisdiction of the D.C. prison system and plans to use other prisons.

Some laid-off employees might be offered jobs at CCA locations elsewhere, according to the company, but no specific numbers were mentioned. CCA runs 65 prisons with about 61,000 beds.

The Youngstown prison, which at one time housed up to 1,500 D.C. prisoners, has faced various problems over past years, which we have highlighted previously in PLN (see PLN March 2000). These problems include the 1997 stabbing deaths of two prisoners by other prisoners, a prisoner class-action lawsuit alleging excessive use of force by guards, and a 1998 prison escape.

Youngstown Mayor George McKelvey said the closing would be devastating economically to the city ...

World Court Upholds Foreigners' Right to Contact Their Embassies

Gerardo Valdez, a Mexican citizen who had been scheduled for execution this fall in Oklahoma, was granted an indefinite stay by the Oklahoma Court of Criminal Appeals in September due to a recent decision from the International Court of Justice, sometimes known as the World Court. That decision extends our famous right of the accused to retain counsel, but this time, the right is extended to foreigners to contact their embassy.

The World Court, the United Nations' highest judicial tribunal, ruled that the United States broke international law in 1999 by executing Karl and Walter LaGrand following their convictions for murder during a botched robbery in Arizona. The Court found that police had failed to inform the two German citizens that they had the right to contact their embassy for help.

Now, lawyers for many of the 100 plus foreigners sitting on death row in the U.S. are seeking new trials because their clients weren't told of their right to seek embassy help. The condemned prisoners must now show that World Court decisions are enforceable in U.S. courts.

Amnesty International is calling on prosecutors to withdraw their objections to new trials when suspects can prove their Vienna ...

Iowa Law Library Consent Decree Terminated Under PLRA

A federal district court in Iowagranted prison officials' motion for termination of a consent decree requiring the maintenance of law libraries, pursuant to the Prison Litigation Reform Act, (PLRA).

In 1973 Charles Martin, a prisoner of the Iowa State Penitentiary (ISP), filed suit alleging that he was denied access to the courts because ISP provided no legal assistants to help indigent prisoners with their legal work and the prison's library was inadequate.

On January 25, 1974, the district court issued an order determining that the legal assistance and materials available at ISP were inadequate. The court ordered prison officials to submit a comprehensive plan to ensure indigent ISP prisoners constitutionally adequate access to the courts. On August 15, 1974, the court entered an order modifying portions of the plan and retaining jurisdiction for continued supervision of the plan and defendants' compliance.

In February 1999 the Iowa Department of Corrections instituted a policy of ceasing to update legal libraries and of contracting with the Iowa Public Defender's Office for legal services to state prisoners. On February 22, 1999, prison officials moved for termination of the 1974 consent decree under Section 3626(b)(2) of the PLRA.

The district court ...

Michigan Prisoners Awarded Nearly $7,000 for Retaliatory Transfers

In February 2001, a federal judge ruled that two Michigan prisoners are entitled to almost $7,000 in damages after they were unjustly punished by the state Department of Corrections when they were transferred to highersecurity prisons. The transfers came after the prisoners exercised their First Amendment right to free ...

West Virginia Supreme Court Fails to Cure Prison Overcrowding - Again

West Virginia's Supreme Court took notice of the overcrowded state prison system, acknowledged that over 850 convicted felons are lodged in county jails and elsewhere while awaiting transfer to state prison, discharged the current Special Master, appointed a new Special Master, but stopped short of ordering meaningful sanctionsdaily, highdollar fines, for exampleto cure the prison overcrowding problem.

West Virginia prisoners housed in county jails filed a petition for Writ of Mandamus to compel their transfer to state prison. The state Supreme Court acknowledged that prisoners thus housed were being denied their state constitutional and statutory right to rehabilitation and found that the state had a nondiscretionary duty to house sentenced prisoners in prison.

In 1988, the Court ordered the Division of Corrections (DOC) to build a new prison by July 1992. That obligation has yet to be met, declared the Court.

In this latest round of the interagency war of attrition, the Court ordered a new Special Master to create a complete, longrange plan for the transfer of prisoners to DOC facilities and submit the plan to the Court as soon as practicable.

See: State of West Virginia ex rel. Sams v. Kirby , 542 S.E.2d 889 (WVA ...

Escapes Are Violent Crimes Under U.S. Sentencing Guidelines

Escapes are Violent Crimes Under U.S. Sentencing Guidelines

The Court of Appeals for the Eighth Circuit held that prison and jail escapes are considered "crimes of violence" for purposes of the U.S. Sentencing Guidelines (USSG).

Larry Nation was convicted in federal court in Arkansas of being a felon in possession of a firearm and sentenced to 65 months in prison. The government sought to increase his offense level, which would have increased his sentence, by arguing that Nation's 1995 escape from an Arkansas jail when he was facing charges in an unrelated matter, was a "crime of violence." The district court denied the government's request. The appeals court affirmed Nation's conviction and remanded his case for resentencing.

The appeals court held that for purposes of § 4B12(a)(2) of the USSG, escapes are always to be considered "crimes of violence" and defendants must, accordingly, have their sentences enhanced as a result of any prior escapes they may have been convicted of.

"We believe that every escape, even a socalled `walkaway' escape, involves a potential risk of injury to others. ... Every escape, therefore, `is a powder keg, which may or may not explode into violence and ...

CCA Guard is "Public Official" Under Bribery Statute

CCA Guard is "Public Official" Under Bribery Statute

The Fifth Circuit Court of Appeals affirmed a prison guard's bribery conviction, finding that he was a "public official" for purposes of the federal bribery statute.

Shannon Thomas was employed as a guard at a private prison in Texas, owned and operated by Corrections Corporation of America, (CCA). He performed the same duties and had the same responsibilities as a federal prison guard.

Charged with bringing cigarettes to detainees in exchange for money, Thomas was indicted for accepting a bribe in violation of 18 U.S.C. § 201(b)(2). He moved to dismiss the indictment, arguing that he was not a "public official" under § 201(b)(2). The district court denied the motion and Thomas entered a conditional guilty plea, reserving the right to appeal the "public official" issue. He was sentenced to 60 months probation and fined $2,000.

On appeal, Thomas renewed his argument that he was not a § 201(b)(2) "public official". The Court observed that it had never addressed the scope of § 201(b)(2) "public officials" but that several other courts had concluded that persons with duties similar to Thomas' were "public officials." The ...

Complaint Claims Texas Psychiatrist Molested Prisoner Patients

A complaint has been filed in the 87th Judicial District Court of Anderson County, Texas, alleging that John W. Goodman, M.D., a former prison psychiatrist at the Gurney Unit of the Texas Department of Criminal Justice (TDCJ), sexually assaulted many of his prisoner patients. The complaint, filed by eleven prisoners who were Goodman's patients, alleges that Goodman breached his professional duty of care to the prisoners while performing professional services at the Gurney Transfer Unit.

According to Charles E. Pool, Sr., one of the plaintiffs, Goodman, who is an employee of the University of Texas System University of Texas Medical Branch (UTMB), touched and manipulated the genitalia of prisoners who sought treatment from him. UTMB is the health care provider for TDCJ. Prisoners complained of Goodman's actions and, on May 4, 1998, Dr. Tom Brittain, a UTMB prison psychiatrist at the TDCJ Beto Unit, wrote Dr. Suzanne Ducate, Director of Mental Health Services for UTMB, and Mr. Billy Burleson, Northern Regional Psychology Director, expressing his concern about Goodman's conduct in touching the genitals of patients while performing psychiatric medical services. Despite these warnings of Goodman's misconduct, no action was taken to determine whether the allegations ...

Missouri and Benetton Settle Lawsuit Over Death Row Advertisements

On June 15, 2001, Missouri Attorney General Jay Nixon announced that Italian clothes making company Benetton had agreed to settle a lawsuit filed by the state of Missouri by paying $50,000 to a victims compensation fund. In February 2000, Nixon filed suit after Benetton ran an international advertising campaign ...

Tarrant County (Texas) Jail's 'God Pod' Unconstitutional

by Matthew T. Clarke

The Texas Supreme Court has held that the Chaplain's Education Unit (CEU) at the Tarrant County Jail unconstitutionally violates the separation of church and state.

In 1992, former Tarrant County (Texas) Sheriff David Williams initiated the CEU program, known to prisoners as the "God Pod." Prisoners who volunteered for the program spent 120 days studying what Williams and former Tarrant County Jail Chaplain Hugh Atwell called "orthodox Christianity." Participants had to accept the Bible as infallible truth, believe in Jesus Christ as a deity, and be "born again" to attain salvation. Williams and Atwell would not allow the discussion of any other religious beliefs. Prisoners participating in the program were housed under significantly better conditions than the rest of the jail population.

Ruth Maree Lara and Lee Huff, former jail prisoners who were not fundamentalist Christians, and Dr. Ronald Flowers, a Tarrant County taxpayer, filed suit in state court under 42 U.S.C. § 1983 and state law, claiming the CEU violated the Establishment, Free Exercise, and Equal Protection clauses of the Texas and U.S. constitutions. The district court ruled that the program was constitutional and plaintiffs appealed.

The Court of Appeals reversed the ...

Philadelphia City Prison Fined $1 Million

The Commonwealth Court, Pennsylvania's intermediate appellate court, upheld a trial court order for the City of Philadelphia to pay more than $1 million in fines for failure to provide prisoners with sufficient clothing, laundry access, services, social workers, and vocational training.

In 1971, five prisoners in Philadelphia's city prison system filed suit complaining that conditions of confinement amounted to cruel and unusual punishment. Thereafter, the prisoners and the City entered into a series of consent decrees which impose obligations on the City and empower the trial court to levy monetary fines for noncompliance.

In November 1995, prisoners filed a contempt motion complaining that the City failed to comply with certain terms of the consent decree. The trial court, after reconsideration, found the City to be in contempt and levied a fine of $1,095,000. The City appealed and, on remand from the Pennsylvania Supreme Court in February 2000, the Commonwealth Court upheld the trial court rulings and the amount of the fine.

The first violation was the City's failure to provide sufficient social workers. Social workers were able to respond to services requests within the required 72 hours only 25 to 30 percent of the time ...

Released NYC Prisoners Win Mental Health Benefits

Prisoners in New York City jails who received treatment for mental illness won class certification and a preliminary injunction requiring defendants to provide written discharge plans for prisoners who, during their confinement, received treatment for mental illness.

Plaintiffs sought certification of the class defined as those consisting of themselves and all others (a) who are or will be confined in New York City jails, (b) whose period of confinement lasts 24 hours or longer, and (c) who, while confined are receiving or will receive treatment for mental illness.

Plaintiffs further sought a preliminary injunction enjoining defendants, the City of New York, et al, to provide them and the class with adequate discharge planning in compliance with accepted psychiatric standards.

Defendants challenged class certification arguing that the definition was overly broad and that plaintiffs could not adequately represent themselves because of their mental health problems.

To cure the "overly broad" problem, the court proposed narrowing the class definition to exclude those who received mental health treatment only once or twice while confined. In disposing of defendants' final objection to class certification, the court said, "If any of the plaintiffs cannot adequately present his or her claims and/or that of the ...

Attorney Seeks Answers in Aftermath of New Mexico Riot

Prisoners at the Western New Mexico Correctional Facility in Cibola County staged a riot on April 27, 2001. The prisoners reportedly set small fires and backed up toilets after refusing to return to their cells for an evening lockdown. Prison guards allegedly regained control of the unit when they used tear gas on the 63 prisoners said to have been involved in the incident. Officials are claiming that there were no injuries resulting from the incident. However, in its aftermath, there are conflicting theories as to the motivation behind the riot.

Prison officials claim that the riot began after the prisoners became angry over a lack of water pressure. There was no further explanation forthcoming as to why prison officials believe that low water pressure was sufficient enough to spark the riot.

An attorney representing the prisoners in a class action suit, Mark Donatelli, theorizes that the riot was the result of the overcrowded conditions to which the prisoners are being subjected. If Donatelli's theory is correct, the state could be in violation of a federal consent decree that was lifted because the state has been in compliance for several years. It would also help to explain how something ...

Denial of Clothing to Arrestees States Claim for Relief; Suit Settles for $31,500

A Michigan Federal District Court has ruled that arrestees detained in a city jail without any clothing or covering for between six and eighteen hours as a suicide prevention method, with limited exposure to viewing by members of the opposite sex, stated claims for relief under the Fourth and Fourteenth ...

Pennsylvania Court Upholds Part of Prisoner's Request for Public Records

A Commonwealth Court in Pennsylvania has partially upheld a state prisoner's request for medical information under the state's Right-to-Know Act. The opinion and order affirms in part, and reverses in part, the denial of information by the Pennsylvania Department of Corrections (PADOC).

Julian Heicklen petitioned PADOC to inspect a document titled "Protocol for Hepatitis C Identification and Treatment," to review the results of a survey by PADOC on the number of state prisoners with hepatitis C, and "to review or copy medical documentation of inmates under the care of the Department." An oral request and a later written request were both denied by PADOC on the grounds that the requested information was either not "public records" as defined in 65 P.S. §§ 66.1 _ 66.4 (the Right-to-Know Act), or was exempted from disclosure by, the Act. After the denials, Heicklen petitioned the court for the information.

The court began its opinion by discussing what a "public record" is in Pennsylvania, and what records are exempted from disclosure pursuant to 65 P.S. § 66.1(2). PADOC argued that none of the requested information contained an "actual agency determination fixing rights or duties or form[ing] the ...

Colorado ACLU Settles Restraint Board Suit

A monitoring agreement was reached between the ACLU Foundation of Colorado, the El Paso County Board of County Commissioners (BOCC), and the El Paso County Sheriff's Office (EPSO) regarding EPSO's use of a restraint board and Level 3 restraints on jail prisoners. The January 31, 2000, agreement also ...

California Pays for Guard's Sexual Misconduct

by W. Wisely

California taxpayers must pay $154,212 in damages to a former female prison guard sexually harassed on the job, according to the Sacramento Bee . Ray Collie, the lieutenant who couldn't seem to control his urges, owes just $75,000 in punitive damages out of his own ...

BOP Smoking Suit Dismissed

A federal district court in New York has dismissed a civil complaint filed by 435 federal prisoners against tobacco manufacturers and prison officials.

The complaint alleged that tobacco manufacturers and Federal Bureau of Prisons (BOP) director, Kathleen Hawk, conspired to sell as many cigarettes as possible to federal prisoners, with deliberate indifference to the associated health risks of nonsmoking prisoners. The prisoners showed that the manufacturers hid the medical harm of tobacco and that federal prisons are permeated with tobacco smoke.

However, the complaint failed to state facts showing a conspiracy between the manufacturers and BOP officials to expose prisoners to unacceptable environmental tobacco smoke.

The court held that the complaint failed to invoke the court's jurisdiction and dismissed the case. See: Nwanze v. Phillip Morris, Inc., 100 F.Supp. 2d 215 (S.D.N.Y 2000).

$250,000 in Hawaii Beating Death

In May 2001, the Hawaii prison system paid $250,000 to settle a lawsuit stemming from a prisoner being beaten to death by prison guards. In 1999 Antonio Revera, 26, was serving a 10 year sentence for rape in the Halawa Correctional Facility. While being transferred out of the prison ...

Indiana Prisoners Riot in CCA Prison

On July 6, 2001, hundreds of Indiana state prisoners held at the Otter Creek Correctional Complex in Wheelwright, Kentucky, rioted. The prison is owned and operated by the private, for profit, Corrections Corporation of America. The riot lasted nine hours and involved prisoners throwing televisions, sinks and toilets out of windows and burning clothes, bedding and mattresses. No one was seriously injured but the remote mountain prison was extensively damaged.

Indiana prison officials said the riot, which began in a recreation area and then spread, was "under investigation" and three prisoners suspected of "prompting the disturbance" have been moved back to Indiana. No reason or motive for the uprising was given in media accounts.

On July 12, 2001, CCA announced the prison warden, William Wolford, had been fired and on July 14, Wolford's top assistant, David Carrol, was also fired. The reason for the firing were unspecified "various policy violations." The firings came shortly after Indiana prison officials met with CCA officials. During the uprising, 75 Kentucky state police troopers and 15 Floyd county sheriff's deputies surrounded the prison to prevent escapes.

Source: Lexington Herald Leader.

Colorado Restraint Board Death Case Settled

by Bill Trine, esq.

A§ 1983 civil rights lawsuit and medical/healthcare negligence lawsuit was brought by the mother of 54 year old Michael Lewis, who died on May 7, 1998, after being placed on a "restrainer board" while incarcerated as a pre-trial detainee at the El Paso County Criminal ...

Texas Gives $2 Million to Proselytizing Prison Program

by Matthew T. Clarke

The Texas Legislature appropriated an additional $1.5 million to expand the Interchange Freedom Initiative (IFI) to include prisoners who expect to be paroled to the DallasFort Worth area. Sponsored by Prison Fellowship Ministries, an organization founded by bornagain Christian and former Watergate coconspirator, Chuck Colson, IFI is based out of the Carroll Vance Unit of the Texas Department of Criminal Justice (TDCJ) and is currently limited to prisoners who expect to be paroled to the Houston area.

IFI is a "controversial, Christ centered, Biblebased program" that seeks to "rehabilitate convicts by pumping them full of Jesus, 24_7." In 1997, then governor George W. Bush signed onto this first- ofitskind program and used it politically to help him define himself as a "compassionate conservative" who sought faithbased alternatives to government programs.

IFI already received a $500,000 annual operating budget from the legislature. Additionally, TDCJ paid for the food, housing, medical needs, and security of the prisoners in the program. With this funding, IFI provides an eighteen-month inprison program followed by a sixmonth outofprison aftercare program in which the parolee receives assistance in finding a job and mentoring. According to IFI official Phillip Dautrich, before being ...

Ohio Appellate Court Holds No Privacy Right in Urine

The highly influential Tenth District Court of Appeals of Ohio has ruled that prisoners "have no reasonable expectation of privacy in the items they possess in a prison or in the activities in which they engage while incarcerated. This loss of privacy and personal control is basic to our presentday system of corrections." The Court also held that prisoners representing themselves in litigation "should be granted some leeway as to compliance with strict pleading requirements."

Ronald Larkins, Duane Frazier, and Rifat Abuhilwa, proceeding pro se , filed a declaratory judgment action in the Franklin County Court of Common Pleas seeking to have random urinalysis drug screenings conducted by the Ohio Department of Rehabilitation and Correction (DORC) declared illegal. Inadvertently, the three failed to comply with Ohio Revised Code section 2969.25, which requires that prisoner litigants submit affidavits detailing their past and present litigation history. Although they sought to amend their pleading to include the affidavits, the Court of Common Pleas dismissed the action. The plaintiffs appealed, assigning as error both the dismissal itself and the question that initially precipitated the action.

The Court of Appeals held that pro se prisoner litigants must be given leeway in complying with strict filing ...

Damages Awarded in Ohio Disciplinary Suit

A federal district court in Ohio held that a trial was required to determine if a prisoner was improperly denied the right to call witnesses at a disciplinary hearing. The Court also held that the suit was not barred by the PLRA or the Heck/Edwards doctrine. A jury later ...

Washington DOC Suffers Yet Another Multi-Million Dollar Negligent Supervision Settlement

On May 16, 2001, the State of Washington and King County agreed to pay $5.5 million to the family of a man stabbed to death by a mentally ill man who was mistakenly released from the King County (Washington) jail.

On August 24, 1997, 64 year old Ross Stevenson ...

No Refund or Cancellation of Filing Fees on Appeal

The Court of Appeals for the Second circuit held that prisoners who proceed in forma pauperis (IFP) on appeal, and later choose to dismiss their appeals before a ruling issues, are not entitled to a refund of the filing fees paid nor a cancellation of the debt they incurred under the Prison Litigation Reform Act (PLRA) for the remainder of the filing fee. The case involves consolidated appeals by two New York state prisoners.

Warren Goins appealed the dismissal of a civil rights lawsuit. He received IFP status as allowed under 28 U.S.C. § 1915. He later withdrew his appeal and filed a motion for a refund of the appellate filing fees he had already paid and a cancellation of his debt for the remaining balance.

The appeals court noted that fee-paying litigants are not entitled to a refund of their filing fees if they decide to withdraw their appeals. The Court declined to make an exception for indigent prisoner litigants and held that doing so would be contrary to Congress' intent in enacting the PLRA, which was to cut down on prisoner litigation by imposing financial disincentives to file suit. The Court denied Goins' motion.

Tyrone Houston appealed ...

Indigent Texas Prisoners Subject to 31 Day Statute of Limitations

In two recent cases, Texas state restrictions on the filing of civil lawsuits, codified at Chapter 14 of the Texas Civil Practice and Remedies Code (TCPRC), in Texas state court have been upheld. One restriction includes a 31day statute of limitations following the denial of the statutorallymandated prison system administrative grievance.

Roscoe Wallace and Lonnie James Sanders are Texas state prisoners who sued the prison system and ran afoul of the statutes restricting lawsuits by indigent prisoners, the Texas state version of the PLRA, Chapter 14, TCPRC. Sanders's suit was dismissed for failure to comply with the 31day statue of limitations in § 14.005(b), TCPRC. Wallace's suit was dismissed for failure to exhaust administrative remedies, as required by § 14.005(a), TCPRC.

Wallace challenged the requirement of exhaustion of administrative remedies, the 31day statute of limitations, and the requirement, codified at § 14.004, TCPRC, that prisoners filing a lawsuit in forma pauperis also file an affidavit detailing the facts, issues, and dates of their previous lawsuits in state and federal court, except those brought under the Family Code, as violating the Equal Protection Clauses of the federal and Texas constitutions because they apply to indigent prisoners and ...

Michigan Disciplinary Hearing Class Action Settled

A federal district court in Michigan has approved a proposed settlement agreement in a classaction lawsuit against the Michigan Department of Corrections (MDOC). The Court also modified class representation.

In 1996, Richard Heit and two others filed a complaint on behalf of themselves and all persons similarly situated alleging that MDOC's procedures for disciplinary hearings before administrative law judges (ALJs) were unconstitutionally biased. Specifically, the complaint alleged that MDOC kept statistical records of wins and losses before ALJs, had an unwritten (but widely known) policy that instructed ALJs not to reach a not guilty/dismissal finding in more than 10% of cases, and used ex parte communications and threats to pressure ALJs to maintain this limit. The suit was eventually certified as a class action representing 45,879 prisoners.

Between the close of discovery and the start of trial, the parties' counsels came to a proposed settlement agreement. Objections were allowed, and 824 class members timely filed objections. Although he orally agreed to the proposed settlement initially, class representative Heit also timely filed written objections and stated absolute opposition to settlement. Class counsel then moved to withdraw representation of Heit and to add a new representative.

The proposed settlement ...

Eighth Circuit Applies Turner Test to Control Unit Conditions Case

In the first case to apply the "Reasonable Relationship" Test of Turner v. Safley , 482 U.S. 78, 107 S.Ct. 2254 (1987), to a conditions of confinement case, the Eighth Circuit Court of Appeals remanded a district court's decision finding constitutional violations in relation to longterm segregation, for reconsideration under Turner .

In 1990 George Goff, a prisoner of the Iowa State Penitentiary (ISP), filed a complaint alleging that the harsh disciplinary sanctions associated with lockup at ISP were violating his Eighth and Fourteenth Amendment rights.

In 1994 Goff filed a preliminary injunction request, asking the court to prohibit prison officials from denying lockup prisoners a timecut from their lockup time. The district court granted the injunction and prison officials appealed. The Eighth Circuit stayed the appeal until the district court issued its final ruling in the case.

The district court granted class certification in 1995 and a trial was held in 1996. After extensive evidentiary proceedings, the district court filed a 118page order setting forth findings of facts and conclusions of law relating to constitutional violations at the ISP.

The district court found four constitutional violations: 1) the violation of substantive due process resulting from the extraordinarily long ...

New Trial Ordered in Excessive Use of Force Suit

A federal district court in New York has ordered a new trial in a civil rights excessive use of force suit. Prisoner Milton Ruffin filed suit against Sullivan Correctional Facility guard Van Fuller for an incident which occurred on October 19, 1998. Ruffin was confined in the Special Housing Unit and had just been handcuffed with a waist chain to be taken for his daily shower.

Ruffin testified at trial that as he was backing out of his cell Fuller called him "a bitch," and, when he turned to respond to the comment, a struggle ensued. Ruffin then got on his knees and voluntarily laid on the ground as instructed by the guards. While on the floor in restraints, two other guards held Ruffin down, and Fuller kicked him in the face three or four times. Two of the kicks landed directly in Ruffin's mouth breaking his teeth. Another prisoner, Michael Howell, testified he saw Fuller kick Ruffin in the mouth.

The three guards testified that Ruffin was not kicked in the mouth by Fuller, or anyone else. The guards did not dispute Ruffin's teeth were injured in the incident, they could not recall, however, how the injury ...

En Banc Third Circuit Rules on PLRA Three Strikes

In a 134 en banc decision, the Third Circuit Court of Appeals abandoned its prior interpretation of the "imminent danger" exception to the PLRA's "three strikes" rule, 28 U.S.C. § 1915(g), and adopted the interpretation given to the phrase by the Fifth, Eighth, and Eleventh Circuit Courts of Appeals. In so doing, the appellate court upheld a district court's denial of in forma pauperis (IFP) status to a Delaware prisoner with a long history of frivolous litigation.

The "three strikes" rule in 28 U.S.C. §1915(g) disallows IFP status to any prisoner who has previously had three or more federal civil actions dismissed as frivolous, malicious, or failing to state a claim for relief. The exception to this rule is if the prisoner is in "imminent danger" of physical harm. Previously, in Gibbs v. Roman , 116 F.3d 83 (3rd Cir. 1997), the Third Circuit held that "imminent danger" referred to the time when the alleged incident happened, whether or not the danger had passed. Subsequently, using the "Plain Meaning Rule" of statutory interpretation, other circuits held that the "imminent danger" exception applied when the complaint was filed and not to past harm.

In ...

Prisoners Entitled to Hearing Before Consent Decree Termination

by John E. Dannenberg

The U.S. District Court's (D.N.H.) PLRA based termination of a 1975 New Hampshire state prison consent decree was vacated and remanded to permit the prisoners an opportunity to demonstrate if there were any "current and ongoing" Constitutional violations that weighed against such termination.

Jaan Laaman led a class action 42 USC §1983 civil rights action in 1975 against the New Hampshire prison authorities that resulted in a sixteenpart order specifying relief from substantial Eighth Amendment violations ( Laaman v. Helgemoe , 437 F.Supp. 269, 323330). A consent decree was approved by the court in 1978 and amended by a second consent decree in 1990. The second decree extended court jurisdiction until July 1, 1993, to ensure compliance.

Although the prisoners complained of ongoing violations prior to July 1, 1993, and gained an evidentiary hearing, no court order ever issued. After the original judge died in February 1999, the newly assigned judge implemented the lately enacted PLRA termination provisions of 18 USC §3626(b)(2,3) and terminated the decree on June 15, 1999, claiming "plaintiffs have failed to demonstrate that a basis currently exists for finding that the decree `extends no further than ...

New Jersey Prisoners Exempt from Exhaustion Requirement

New Jersey Prisoners Exempt From Exhaustion Requirement

A federal district court has held that New Jersey prisoners are not required to exhaust institution implemented grievance procedures before filing a civil rights suit. New Jersey prisoners Victor Concepcion and Anthony Ways filed suit alleging excessive use of force by prison guards during two separate incidents that occurred on August 18, 1997. The Defendants sought summary judgment on the grounds that the prisoners did not exhaust their administrative remedies or, in the alternative, the force was not excessive.

The New Jersey Department of Corrections (NJDOC) has not promulgated or implemented an administrative grievance procedure. The New Jersey State Prison (NJSP), where the events occurred, has implemented an Administrative Remedy. This Remedy is promulgated by the "Inmate Handbook" at NJSP. The court found this was an issue of first impression in New Jersey courts.

The court examined the history of the requirement for prisoners to exhaust administrative remedies before bringing a civil rights action. The Prison Litigation Reform Act (PLRA) substantially changed the law and requires a prisoner to exhaust "such administrative remedies as are available." Prison officials argued the NJSP administrative remedy was available to the prisoner plaintiffs and they failed to ...

U.S. Marshal's Conviction for Raping Prisoners Affirmed

The Fifth Circuit Court of Appeals affirmed a United States Marshal's conviction and sentence for raping female detainees and a court security officer in a federal courthouse.

As a Deputy United States Marshal, Richard Urrabazo supervised detainees in the cell block of the U.S. Marshals' Service office located in the John Wood Federal Courthouse in San Antonio, Texas. The cell block primarily houses federal prisoners while they await court appearances.

A grand jury returned a seven count indictment against Urrabazo charging him with abusive sexual conduct with female detainees and a court security officer. At trial, Urrabazo did not dispute that the alleged violations occurred. Instead, he filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the cell block in the federal courthouse was not a federal "prison" under 18 U.S.C. Section 2246(1). The court denied the motion and a jury convicted Urrabazo on all counts. The court then sentenced him to serve 51 months in federal prison.

Urrabazo appealed, again arguing that the district court did not have subject matter jurisdiction over the prosecution because the cell block of the federal courthouse does not constitute a "prison" since it does ...

PLRA Screening Applies Regardless of Fee Status

The Tenth Circuit Court of Appeals held that the Prison Litigation Reform Act (PLRA) screening and dismissal provisions apply even when the prisoner is not proceeding in forma pauperis .

Federal prisoner Gerald Plunk filed a Bivens action alleging that he was denied due process in a prison disciplinary proceeding. The district court dismissed Plunk's complaint pursuant to 28 U.S.C. § 1915A(b) on the ground that the complaint was legally frivolous. Plunk appealed, arguing that the district court erred in dismissing the complaint pursuant to § 1915A because he was not proceeding in forma pauperis.

The Court of Appeals rejected Plunk's argument, noting that it is at odds with the plain language of § 1915A. The Court concluded that it was joining "the Second, Fifth, Sixth, and Seventh Circuits in holding that 1915A applies to all prison litigants, without regard to their fee status, who bring civil suits against a government entity, officer or employee."

The Court also rejected Plunk's argument that he was entitled to a hearing before the district court dismissed his complaint under § 1915A. Following the reasoning of the Second Circuit, the Court noted that the procedure required by § 1915A is a screening process to ...

News in Brief

California: On October 24, 2001, a riot at the Santa Clara County Jail in San Jose left 22 prisoners and one guard injured. Guards broke up a fight between four prisoners and placed them in holding cells. Twenty-four prisoners then barricaded themselves in a recreation room to demand the prisoners' release, during which time one guard was hit on the head with a pencil sharpener. Riot clad jail guards then stormed the room and "subdued" the prisoners. Apparently it was a one sided battle because no guards were injured while 22 of the 24 prisoners required medical treatment afterwards. Twelve prisoners were taken to a local hospital, and ten prisoners were treated by the jail's medical staff. This was the jail's most significant "incident" since 1989.

Colombia: On September 24, 2001, Jesus de los Reyes and Angel Lopez, leaders of the Ejercito de Liberacion Nacional (ELN), a Marxist guerrilla group, escaped from the Barranquilla Modelo jail. News reports did not specify how the escape occurred.

Connecticut: On September 16, 2001, an unidentified 15-year-old boy, imprisoned while awaiting trial at the Mason Youth Institution in Cheshire, committed suicide by hanging himself with bed sheets. The boy was facing an ...


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