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Prisoner Education Guide

Prison Legal News: October, 2002

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Volume 13, Number 10

In this issue:

  1. Into the Twilight Zone (p 6)
  2. From the Editor (p 7)
  3. Represent Yourself in Court: How to Prepare & Try a Winning Case, 3rd Ed. (p 7)
  4. Supreme Court Upholds Forced Confessions in Kansas Sex Offender Treatment (p 8)
  5. CMS Overdoses Five Boston Jail Prisoners (p 10)
  6. Danish Security Firm Buys Out the Wackenhut Corporation (p 10)
  7. Washington Good Time Depends on When Crime Occurred (p 11)
  8. Supreme Court: No Punitive Damages Allowed Under RA and ADA (p 12)
  9. German Economics Minister Comments on U.S. Prison Labor (p 13)
  10. Credit for Time Served Required in Idaho Commute to Work Release (p 13)
  11. Habeas Hints: Editor's Choice (p 14)
  12. Exoneration of Conviction a Prerequisite to Legal Malpractice Claim in California (p 16)
  13. Attorney Fee Award Upheld in Washington Excessive Force Case (p 16)
  14. Exhaustion Not Mandatory for Kansas Habeas Petitioners; Retained Counsel at Disciplinary Hearings is Discretionary (p 17)
  15. Washington District Court Grants Preliminary Injunction for Kosher Meals (p 18)
  16. California Prison Law Libraries Survive (p 19)
  17. Guards at New York Juvenile Center Charged with Extortion (p 19)
  18. New York Guards Sentenced in Animal and Prisoner Killings (p 20)
  19. Texas Sex Slave Sues Prison System for Failure to Protect (p 20)
  20. Remand to Determine if TDCJ Grooming Policy Unconstitutional (p 21)
  21. Connecticut District Court Orders Post-Judgment Monitoring Fees (p 21)
  22. Ball Park Franks Fiasco: 21 Dead, $200,000 Fine (p 22)
  23. Honolulu Police Officers Indicted in Jail Food Scandal (p 23)
  24. Summary Judgment Denied in Colorado Hepatitis-C Treatment Suit Based on Lack of Internet Access (p 24)
  25. All Things Censored by Mumia Abu Jamal (p 25)
  26. Jailers Liable for Foreseeable Prisoner Suicide (p 25)
  27. Florida Prisoner Dies in CCA Jail (p 26)
  28. Ohio Nearly Closes 100 Year Old Asylum/Prison (p 27)
  29. Georgia Lawmaker Indicted for Aiding Prisoner Transfer (p 28)
  30. Oklahoma Rejects Prisoner Mail Box Rule (p 28)
  31. Sixth Circuit Upholds Denial of Prison Doctor's Qualified Immunity (p 29)
  32. Nominal Damages Not Automatic (p 29)
  33. News in Brief (p 30)
  34. Mexican Sweatshops Go Behind Bars (p 32)

Into the Twilight Zone

by Mumia Abu Jamal

With the seizure of the person (one can't say "arrest," for the government has announced it has no intention of prosecuting) of the American citizen alleged to have been planning "dirty bomb" strikes against U.S. targets, Abdullah AlMuhajir (formerly Jose Padilla), the government goes down a dark and long road, the destination of which can only bethe Twilight Zone (with apologies to the late Rod Serling).

A charge, under AngloAmerican jurisprudence, is only a charge, and remains so only until a duly constituted selection and decision of one's peers a jury decides otherwise. This is the boast that Americans have used for over two centuries, to hold their noses higher than the rest of the allegedly uncivilized world, as an expression of their trust in the wisdom and insight of the average American citizen to decide the fate of their fellows.

Under the present Bush regime, however, there is a marked perception that the American public, and more importantly, the institutions erected in their names, are not to be trusted.

This view was apparently one of long standing. Let us go back, backway back to the days of the 2000 election for the ...

From the Editor

The connection between felon disenfranchisement and mass imprisonment is rarely explored. In this month's cover story we discuss the correlation between the two. In many ways, the more things change the more they remain the same. Today's convicts effectively pad voter numbers when legislative districts are drawn which begs the question of just how representative is a representative democracy when millions are disenfranchised, millions more are moved around to artificially create conservative districts and give still more political power to rural, conservative and mostly white districts.

But this is nothing new and has been the case for most of American history. During the slavery era slaves were tallied up in creating legislative districts and apportioning votes in Congress even though obviously slaves couldn't vote. This effectively gave the slave owning Southern states a congressional veto and otherwise expanded their political power. In next month's issue of PLN we will examine how the census further exploits America's prison chattel and turns them into cash cows for government hand outs for those towns who opt to become prison centers.

We have been getting a very good response to our subscription madness campaign. If you would like to ...

Represent Yourself in Court: How to Prepare & Try a Winning Case, 3rd Ed.

Represent Yourself in Court: How to Prepare & Try a Winning Case, 3rd Ed.

By Attorneys Paul Bergman & Sara BermanBarrett, Nolo Press, 2001 (528 pages)

Reviewed by Sam Rutherford

The third edition of Represent Yourself in Court is a plainenglish guide to handling a civil case from start to finish, including cases involving bankruptcy, divorce and child custody, personal injury, breach of contract, small business disputes, and more. This informative, easy to understand book is intended for the novice as well as those experienced in civil litigation.

For beginners, the book opens with an overview of the different courts in the United States and the various roles of the litigants, judges and clerks. The book also provides several chapters devoted to assisting the reader in deciding whether they have a valid claim and, if so, which court has jurisdiction to entertain it. Of course, Represent Yourself in Court includes several chapters dealing with the preparation of complaints, answers, and other pleadings associated with the initial stages of a civil case.

One of the most useful aspects of the book is its discussions of discovery and settlement negotiations. Represent Yourself in Court takes the reader through depositions, interogatories, and other discovery devices ...

Supreme Court Upholds Forced Confessions in Kansas Sex Offender Treatment

In a 54 decision, the United States Supreme Court has decided that a convicted sex offender's Fifth Amendment privilege against compulsory selfincrimination is not violated by a treatment program that requires admitting to all past sexual behavior. In a plurality opinion, Justices Kennedy, Rehnquist, Scalia, and Thomas found that the program and its consequences for nonparticipation do not combine to create a compulsion to self incrimination. Justice O'Connor, although troubled by the Court's failure to reach a comprehensive theory of the selfincrimination privilege, nevertheless agreed with the decision. Dissenting Justices Stevens, Souter, Ginsburg, and Breyer declared this a watershed case in that a person who has asserted the Fifth Amendment privilege may now be sanctioned for disobeying an order to selfincriminate.

Although maintaining that the sex was consensual, Robert G. Lile, a Kansas state prisoner, was convicted in 1982 of raping a high school student. He was ordered in 1994 to participate in the Kansas Department of Corrections Sexual Abuse Treatment Program (SATP). Participation requires signing an Admission of Responsibility form accepting responsibility for the crime for which the prisoner was convicted. An additional form with a detailed sexual history including illegal sexual conduct is also required ...

CMS Overdoses Five Boston Jail Prisoners

Five prisoners at Boston's Suffolk County jail in Massachusetts were rushed to a nearby hospital after receiving the wrong medication. Jail guards found the five prisoners unconscious on the morning of September 23, 2001, after other prisoners alerted the guards by raising a commotion in their cells. Thomas Burke, Shawn Fitzpatrick, and Benjamin Neal were hospitalized after consuming Elavil, (an antidepressant with sedative effects) instead of their prescribed Viracept, (an antiviral medication for HIV treatment). The other two prisoners' complications weren't severe enough to warrant hospitalization.

St. Louis Missouri, based Corectional Medical Services (CMS) is the nation's largest private for profit prisoner health care service, which has applied for a medical service contract with the Mass. Dept. of Corrections, but MA DOC spokesman Justin Latinia said that their decision was still pending. The medical staff that distributed the wrong medication work for this firm. CMS was only a quarter of the way through a threeyear, $12 million contract which provides medical attention within the jail itself says Richard Lombardi who is Suffolk County Sheriff Richard J. Rouse's spokesman.

Jail officials commented that they were not sure how long it took for these prisoners to receive proper ...

Danish Security Firm Buys Out the Wackenhut Corporation

Danish Security Firm Buys Out The Wackenhut Corporation

In 1954, former FBI agent George Wackenhut and three FBI buddies formed a private detective firm in Miami. In 1955, the firm moved into the security guard business after winning a contract with National Airlines. In 1958, Wackenhut bought out his partners and incorporated as The Wackenhut Corporation. Thereafter, the company continued to grow in the security business. Today, with 68,000 employees worldwide, corporate revenues in 2001 reached $2.81 billion.

In 1901 in Denmark, Philip Sorensen founded the company that was to become Group 4 Falck. Joergen PhilipSorensen, Chairman of Group 4, is the grandson of the founder. Group 4 has grown into the world's second largest security firm with operations in 50 countries, 140,000 employees, and 2001 revenues of $2.47 billion.

In March 2002, Group 4 Falck of Copenhagen and Wackenhut Corporation of Palm Beach Gardens, Florida, reached agreement where Group 4 would pay $573 million to acquire Wackenhut. The Danish company agreed to pay $33 per share for all of the Class A and Class B shares of Wackenhut stock.

After 48 years, George Wackenhut, still active in daytoday corporate operations, will cash out with ...

Washington Good Time Depends on When Crime Occurred

A Washington state appeals court held that the amount of good time credits a prisoner received depended on when the underlying crime occurred, in a case where the good time available to prisoners convicted of certain offenses had changed. Washington, like most states, has repeatedly changed its good time eligibility statutes so that the amount of time by which prisoners can reduce their sentences depends not only on the crime they committed, but when they committed it.

Dennis Hartzell pled guilty to two counts of first degree child molestation, for molesting a girl between 1987 and 1991, from the time the girl was five years old. Prior to July 1, 1990, first degree child molestation was a class B sex offense, after that date it became a class A sex offense. Class B sex offenders are entitled to a one third reduction of their sentence for good behavior, while class A sex offenders are only entitled to a 15% reduction. Based on Hartzell's Judgment and Sentence (J&S) showing an ending date of 1991 for the offense, the Department of Corrections concluded that he must serve a two year term of community placement (parole) and was limited to a ...

Supreme Court: No Punitive Damages Allowed Under RA and ADA

In a unanimous opinion, the United States supreme court held that punitive damages are not allowed under the Rehabilitation Act, (RA), 29 U.S.C. § 794 (a) or the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132. Jeffrey Gorman is a wheelchair bound paraplegic who lacks control over ...

German Economics Minister Comments on U.S. Prison Labor

In February 2002, German economics minister Werner Mueller was questioned by reporters about Germany's unemployment rate, which is over 10%. Many observers believed that Germany's unemployment rate hurt the reelection chances of German chancellor Gerhard Schroeder. Mueller responded that Germany's unemployment rate would be 1.5 percentage points lower "if so many people were sitting in jail as in the United States."

Mueller is referring to the fact that if the 2 million people currently sitting in U.S. prisons and jails were included in U.S. unemployment statistics, those numbers (already the subject of creative accounting to give artificially lower numbers) would be much higher. They would be higher still if the people employed as guards, administrators, etc., of the prison industrial complex were factored in as well. [See the October 2000, issue of PLN for a discussion of mass imprisonment and labor markets].

Conservative commentators claimed the remark was "cynical" and that Mueller should be working to create jobs, not making speeches. Right wing newspaper Bild , stated "But to compare the jobless with jail inmates does go a step too far. None of Germany's 4.3 million jobless is helped by such stupid, blustering ...

Credit for Time Served Required in Idaho Commute to Work Release

The Idaho Court of Appeals has held that a judge does not have discretion to disallow credit for time served when commuting a prison sentence to a work release program.

Jason Albertson was sentenced to three years in prison with a one and a half year minimum for felony driving without privileges. After six months, the sentencing court placed Albertson on probation. Albertson violated probation multiple times and reached a disposition whereby he would have his probation reinstated on the condition he serve 74 days in jail with credit for 63 days previously served.

After further violations, a new agreement was reached whereby the Court would commute the original sentence to one-year in the county jail work release program. The Court allowed only the 11 days jail confinement credit from the previous agreement.

Albertson filed for credit for all the time he had served in connection with this case. The Court denied the motion finding that it was extending leniency by commuting the sentence in the first place.

On appeal, the Court found Idaho Code §18-309 mandates credit for incarceration time prior to sentencing and after sentencing, with the exception of time spent in jail as a condition of probation ...

Habeas Hints: Editor's Choice

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

EDITOR'S CHOICE

Recently I received some suggestions for column topics from Paul Wright, editor of the Prison Legal News . This column addresses some of those suggestions.

Appointment of counsel in habeas corpus cases.

In state court, appointment of counsel is required on "direct appeal", but not on state habeas. Therefore, prisoners must research, investigate, and file state habeas petitions with retained counsel, or on their own. The only exception is if the court grants an evidentiary hearing, which very rarely occurs in state court. However, in California and most states, if an evidentiary hearing is ordered, counsel will be appointed.

The rule in federal court is more favorable in theory, but not in practice. Habeas corpus cases are civil in nature. Hence, unlike criminal cases where appointment of counsel for a person without funds is required, appointment of counsel in habeas corpus cases is "discretionary" with the court. See 28 ...

Exoneration of Conviction a Prerequisite to Legal Malpractice Claim in California

The California Supreme Court held that when criminal defendants sue their defense lawyer for legal malpractice, they cannot use the civil proceeding to prove their innocence. Rather, they must first gain either a reversal of their conviction or other exoneration by postconviction relief.

Nicholas Coscia, a former attorney, pled guilty in federal court to conspiracy to violate federal securities laws. He later sued his criminal attorney for failing to have presented his offer to snitch on others in exchange for a plea bargain that would have reduced his charge to a misdemeanor which would have permitted Coscia to continue to practice law.

The civil trial court sustained the demurrer to his suit without leave to amend based on a theory of collateral estoppel (i.e., one cannot relitigate a criminal conviction in civil court). The California Court of Appeal reversed (95 CaR2d 605 (2000)), holding that exoneration by postconviction relief was not a prerequisite to recovery by Coscia.

The California Supreme Court affirmed the appellate court, but on different grounds. In a similar ruling to Heck v. Humphrey, 512 US 487 (1994) [reversal of conviction or habeas relief is a prerequisite to suing under 42 USC § 1983 for civil rights ...

Attorney Fee Award Upheld in Washington Excessive Force Case

The Washington State Supreme Court, sitting En Banc, held that the Superior Court did not abuse its discretion in awarding attorney fees against a police officer on an excessive force claim. This ruling is useful for prisoners bringing federal claims in state court.

Aaron Ermine sued the City of Spokane ...

Exhaustion Not Mandatory for Kansas Habeas Petitioners; Retained Counsel at Disciplinary Hearings is Discretionary

The Supreme Court of Kansas held that prisoners are not required to exhaust administrative remedies before petitioning for a writ of habeas corpus. The court also held that neither due process nor regulations of the Department of Corrections (DOC) entitle prisoners to representation by retained counsel during prison disciplinary proceedings.

Michael Pierpoint, a prisoner of the Kansas DOC was charged with violating a DOC rule prohibiting "Unauthorized Dealing and Trading," a class II offense. Pierpoint retained counsel to represent him in the prison disciplinary proceeding but the prison warden denied the request.

Prior to the disciplinary hearing Pierpoint filed a habeas corpus petition requesting that the prison be restrained from conducting further proceedings unless his retained attorney could be present. The same day, the district court issued a temporary order restraining the prison from taking action against Pierpoint in the disciplinary proceeding unless his retained counsel appeared in all phases of the proceedings and assisted him in the preparation of his defense. The state appealed to the Court of Appeals and the case was expedited and transferred to the Supreme Court.

The Court rejected defendants' argument that Pierpoint was not entitled to an injunction because he failed to exhaust administrative ...

Washington District Court Grants Preliminary Injunction for Kosher Meals

The United States District Court for the Eastern District of Washington has ordered a preliminary injunction (PI) granting a state prisoner kosher meals in accordance with tenets of Orthodox Judaism.

Roland Pitre is a state prisoner at Airway Heights Correctional Center (AHCC) in Washington. Though not of Jewish descent, nor a convert to Judaism, Pitre sincerely believes in and practices Orthodox Judaism, and has been doing so since March 28, 1999, when he informed AHCC officials of his beliefs and requested kosher meals.

AHCC initially approved, then revoked, Pitre's request for a kosher diet. AHCC officials rejected the request because Pitre was not racially Jewish nor a formal convert to Judaism. Pitre repeatedly asked AHCC officials for kosher meals and was denied. He lost 25 pounds while seeking administrative remedies because the AHCC general population diet is not kosher.

Pitre filed suit under 42 U.S.C. §1983 claiming that AHCC officials violated his First and Fourteenth Amendment rights. He then moved for a PI to compel AHCC to provide him with a kosher diet while the action was pending. AHCC argued that a PI should not issue because Pitre was unlikely to prevail on the claims' merits and ...

California Prison Law Libraries Survive

The California Department of Corrections (CDC) stipulated to ending its motion under the Prison Litigation Reform Act (PLRA) [18 USC §3262(b) et seq.] to terminate a 1976 consent decree which mandates prison law libraries in CDC prisons. In August 2002, the Ninth Circuit US Court of Appeals reversed the district court's grant of CDC's motion that terminated prospective relief of earlier consent decrees beginning in 1970 (Gilmore v. Lynch, 319 F. Supp. 105 (N.D. Cal. 1970)). The district court was ordered to conduct an evidentiary hearing to determine whether the earlier decree was still necessary and whether it was sufficiently narrowly tailored. See: Gilmore v. California, 220 F.3d 987 (9th Cir. 2000) [ PLN , Feb. 2001.]

On remand, the district court had scheduled a case management conference for May 3, 2002. However, on April 16, 2002, the parties entered into a court approved stipulation to take the matter off calendar, while allowing CDC to consider what, if any, future changes in the law libraries it might seek.

"After informal negotiation between the parties, the CDC now recognizes that it needs additional time to determine the efficacy of various options to provide adequate law library resources. The ...

Guards at New York Juvenile Center Charged with Extortion

Two guards at the Nassau County Juvenile Detention Center in New York were arrested and charged with seconddegree grand larceny. The guards, Bobby Stewart and Sean Bourne, are accused of extorting "protection money" from the parents of boys at Nassau. Bourne was arrested at work while Stewart was caught in a sting operation, both in February 2002. Relatives of the boys had been paying Stewart and Bourne as much as $200 a week.

One mother, who asked not to be identified for fear of retaliation against her son, said Stewart sometimes followed her out to the parking lot after her visits and instructed her where to leave the money. She also said Stewart and Bourne smuggled in pornographic material, alcohol and cigarettes, which they sold. Cigarettes went for $50 a pack. The two guards, she says, even sold the boys time on their cell phones.

State inspectors have found numerous problems at the facility in the past few years including unsanitary conditions, dangerously low staffing levels, and even instances of child abuse. Some of the youths tell how they were forced to urinate in milk containers because the guards would not open their cell doors at night so they could ...

New York Guards Sentenced in Animal and Prisoner Killings

A New York prison guard was given a one-year sentence for crushing five kittens to death. In another New York case, a county jail guard received a three month sentence after being convicted of kicking a mentally ill prisoner to death.

On March 22, 2002, former Sing Sing prison guard Ronald Hunlock, 47, was given a one year sentence after being convicted of five counts of aggravated cruelty to animals and one count of attempted aggravated cruelty to animals.

The convictions stemmed from an incident in March 2001 when Hunlock discovered a litter of five newborn kittens and one adult cat while he was searching a prisoner's cell.

Hunlock had ordered the prisoner to place the cats in a box. However, the prisoner refused and Hunlock took the box to the prison trash compactor and crushed all five kittens to death. The mother cat escaped by jumping out of the compactor just before her litter was killed.

When Hunlock was first charged and arraigned in this case, his escort out of the courtroom consisted of several out-of-uniform fellow prison guards, who were said to completely surround Hunlock "like rugby players." Hunlock was rendered nearly invisible to the peaceful animal ...

Texas Sex Slave Sues Prison System for Failure to Protect

For more than a year, Roderick Johnson was regularly and brutally raped and sexually abused while confined in a Texas state prison. In April 2002, Johnson filed a lawsuit under 42 U.S.C. §1983 where he complained that prison officials not only condoned sexual slavery and widespread gang rape but refused Johnson's repeated requests to be housed in protective custody.

Johnson, a 33yearold U.S. Navy veteran, is a black homosexual from Marshall, Texas. While serving time at the 2800man James V. Allred State Prison in Iowa Park (Texas) on a bad check charge, Johnson was subjected to an organized system of gangrun sexual slavery. He was routinely bought and sold as chattel, raped and degraded daily, and threatened with death if he resisted.

In a lurid 25page complaint filed in U.S. District Court, Wichita Falls (Texas) Division, Johnson named Gary Johnson (no apparent relation), the Executive Director of the Texas prison system, and 19 other prison officials as defendants. Plaintiff Johnson alleged that from September 2000 until April 2002 at the Allred prison, he was brutalized by a prisonerrun system of sexual slavery where gang members bought and sold him for as little as $5. In ...

Remand to Determine if TDCJ Grooming Policy Unconstitutional

Remand To Determine If TDCJ Grooming Policy Unconstitutional

by Matthew T. Clarke

The Fifth Circuit has remanded a case for the district court to hold an evidentiary hearing and determine whether the policy of the Texas Department of Criminal Justice (TDCJ) forbidding prisoners from growing beards unconstitutionally violates Muslim prisoners' equal protection rights.

Maurice Taylor, a Texas state prisoner, filed suit against TDCJ officials, alleging the TDCJ policy forbidding beards on prisoners infringed on the requirement of his Muslim beliefs that he wear a one-quarter inch beard and that the policy violates his equal protection rights because it allows prisoners to wear a three-quarters of an inch beard for medical purposes, but does not allow any beards for religious reasons. The district court dismissed the suit as frivolous. Taylor appealed.

In a "motion for reconsideration" filed more than ten days after the judgment was entered and after Taylor filed his notice of appeal, Taylor argued that the policy also violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc. The district court denied the motion.

The Fifth Circuit upheld the dismissal of the free exercise claim as frivolous. The identical issue had been decided against ...

Connecticut District Court Orders Post-Judgment Monitoring Fees

The United States District Court, District of Connecticut, has awarded the Connecticut Civil Liberties Union Foundation (CCLUF) attorneys' fees in the amount of $67,445.88, and costs in the amount of $1,044. The award arises from on-going, postjudgment monitoring by the CCLUF after obtaining a consent decree in a conditions of confinement (42 U.S.C. §1983) suit over the Connecticut Correctional Institution in Niantic, Connecticut.

The CCLUF was previously compensated in 1993 for attorneys' fees and costs related to post-judgment monitoring. When awarding fees and costs then, the court held that the CCLUF was the prevailing party and that the CCLUF was incurring compensable expenses in post-judgment monitoring. From 1993 to 2000, the CCLUF did not request fees and costs, but filed in 2000 for all fees and costs from 1993 through 2000.

The defendants objected, raising the defense of laches. Laches is the doctrine that unreasonable delay or negligence in pursuing a right or claim results in prejudice against the defendant. Reviewing the evidence submitted by all parties, however, the court held defendants have not shown definitive prejudice sufficient to justify denial of the fee application.

On the matter of rates, the CCLUF sought to receive ...

Ball Park Franks Fiasco: 21 Dead, $200,000 Fine

by Russell Mokhiber and Robert Weissman

Let us now have a moment of silence for the victims of the Ball Park Franks fiasco.
Thank you.

This is the situation: Bil Mar Foods is a unit of the Chicagobased giant Sara Lee Corporation, the maker of pound cakes, cheesecakes, pies, muffins, L'Eggs Hanes, Playtex and Wonderbra productsyour typical food and underwear conglomerate.

Bil Mar makes hot dogs Ball Park Franks hot dogs. You've seen them when you go to a baseball game at Tiger Stadium in Detroit and elsewhere. Sara Lee recently pled guilty to two misdemeanor counts in connection with a listeriosis outbreak that led to the deaths of at least 21 consumers who ate Ball Park Franks hot dogs and other meat products. One hundred people were seriously injured. The company paid a $200,000 fine.

According to Kenneth Moll, a Chicago attorney representing the families of the victims, this is what happened: Bil Mar has a hot dog facility in Zeeland, Michigan. The company shut down the facility over the July 4th weekend of 1998 to replace a refrigeration unit that was above the hot processing facility. The hot dogs are heated at one end and ...

Honolulu Police Officers Indicted in Jail Food Scandal

From January 1995 to September 2000, while prisoners at the Honolulu Police Department were eating peanut butter and jelly sandwiches and prepackaged, reheatable meals, their captors were eating top sirloin and rib eye steaks at taxpayers' expense. Assistant Police Chief Rafael Fajardo and Major Jeffrey Owens are accused of using money budgeted for prisoner meals to buy extravagant food items for consumption by police officers and jail guards.

Among the foods allegedly purchased by Fajardo and Owens are 39 pounds of rack of lamb, 174 pounds of top sirloin, 70 pounds of rib eye steaks, 87 pounds of pork loins and 100 pounds of cocktail smokies. Also purchased were chopsticks and plastic forks, which the prisoners are not allowed to use for security reasons. According to one investigator, the illegal purchases may have cost taxpayers as much as $21,000.

One witness, Sgt. Margaret Hirakawa, became suspicious after being told the arsenal was out of storage space. What she found was "boxes on top of boxes [of food]...and it was all for the kitchen." The kitchen, however, was supposed to contain only convection ovens used to reheat the airlinetype meals prisoners received. Special equipment had to be brought in ...

Summary Judgment Denied in Colorado Hepatitis-C Treatment Suit Based on Lack of Internet Access

The Colorado Federal District Court has denied summary judgment for the Colorado Department of Corrections (CDOC) in a suit seeking treatment for a prisoner infected with the hepatitisC virus (HCV). Several prisoner cases were then ordered consolidated. The ruling is one of the first to apply evidentiary rules to internet websites.

Tim Fenner, a CDOC prisoner, was initially diagnosed with HCV in 1999. Rather than perform a liver biopsy to confirm the existence of the virus and the extent of the liver damage, the CDOC immediately halted all services until Fenner completed a minimum of one year of drug and alcohol therapy. But Fenner had already completed the requisite therapy and had the documentation to prove it. The CDOC response was to refuse treatment until Fenner repeated the therapy, despite having contracted the virus many years earlier and well before the last round of therapy.

HCV is a progressive disease which is fatal if left untreated. The standard treatment protocol consists of six months of Interferon shots, which positively affect about 15% to 20% of those infected. If the Interferon fails, Ribavirin is added to the mix. This regimen was approved by the FDA in 1998. Despite its approval and ...

All Things Censored by Mumia Abu Jamal

Seven Stories Press, 335 page paperback, $14.95

Review by Gary Hunter

For nearly two decades Mumia Abu Jamal has defied the deathgrip of Pennsylvania's death row. For nearly two decades he has revealed secrets that our nation's most powerful leaders do not want the public to hear. For nearly two decades he has proven to be quicksilver in the hands of a rabid institution that clamors for his death.

All Things Censored takes its name from a National Public Radio news magazine All Things Considered, which initially embraced Jamal's work but later, under pressure from the federal government, suppressed it. It is a collection of sensitive and sobering essays about prison life, the judicial system, and especially life on death row. It is a drop of Jamal's quicksilver blood that has slipped through the cracks of a sociopathic penal system, a system that has broken every rule and violated every ethic in an effort to keep him silent. All Th ings Censored : a plague of fiery hail for some and manna from heaven for others.

There are no statistics in All Things Censored ; Jamal has put a face on every single number caged within the ...

Jailers Liable for Foreseeable Prisoner Suicide

The Supreme Court of Alaska held that a jailer owes its prisoners the duty of reasonable care to protect them from foreseeable harm, including self-inflicted harm.

Rudolph Joseph was arrested in Nome, Alaska on. May 11, 1996 and committed to the Anvil Mountain Correctional Center. At the time of his arrest, Joseph was intoxicated but allegedly never mentioned or alluded to suicide. He was placed in a cell with a video camera.

Approximately three hours later, a guard noticed that the camera lens had been obscured but took no responsive action. Ten to fifteen minutes later, another guard found Joseph slumped on the floor of his cell with a nylon cord around his neck. The cord was suspended from a shelf support in Joseph's cell. Guards attempted to resuscitate him but he was pronounced dead shortly after his arrival at the hospital.

The nylon cord Joseph used to hang himself was the drawstring from his sweat pants that had not been discovered or taken from him when he arrived at the jail.

Joseph's parents sued the state on behalf of his estate for negligently failing to prevent his suicide. A jury returned a verdict for the state and ...

Florida Prisoner Dies in CCA Jail

On February 26, 2002, the family of a prisoner who died as a result of medical neglect at the privately-run Bay County jail in Florida filed formal notice that they intend to sue the jail, as well as the Bay Medical Center where the prisoner was treated, for failure to properly care for him when he became violently ill in a jail holding cell on Feb. 15, 2002.

The story began when Justin Sturgis, 21, was booked into the jail, which is operated by the Corrections Corporation of America of Nashville (CCA), and charged with driving under the influence. When Sturgis was pulled over he reportedly swallowed 10 hits of Ecstasy to avoid police finding the drug on him when he was arrested. Sturgis arrived at the jail and repeatedly told guards that he had swallowed the drugs and that he needed medical treatment.

However, according to former Bay County jail nurse Jerry Militich, the jail's medical staff was under constant pressure from jail custody staff to avoid sending sick prisoners to the hospital. This inhumane cost-cutting venture eventually led Militich to resign in protest over this practice. Sturgis was brought to see a jail nurse who did call ...

Ohio Nearly Closes 100 Year Old Asylum/Prison

In April 2002, state budget cuts threatened to force the closure of Orient Correctional Institution near Columbus Ohio. Orient originally opened as a mental asylum in 1902 and was converted to a prison in 1984. The closing would have relocated 1,747 prisoners and displaced 533 employees. Eliminating Orient's $41.9 million annual operating cost was supposed to offset a $19 million budget shortfall and would have been the first Ohio prison ever to close due to money problems. For a time the facility seemed doomed.

Prison chief Reginald A. Wilkinson had originally considered closing one of the state's private prisons that do not employ state workers. He changed his mind, however, when Ohio Civil Service Employee's Association (OCSEA) would not negotiate a concession on "roll-call" pay.

For 15 years guards who show up 10 minutes early for their shift have received 30 minutes overtime called roll-call pay, an entitlement which costs the state $21 million a year. Officials argued that the concession would easily have covered the shortfall and was necessary to keep the prison open. However, employees were only willing to give up one hour of pay weekly.

Lawmakers and union officials decried the closing ...

Georgia Lawmaker Indicted for Aiding Prisoner Transfer

On January 8, 2002, a Fulton County, Georgia grand jury indicted state senator Van Streat on four counts of violation of oath of office and one count of making a false statement. Both charges stemmed from Streat's alleged involvement in influencing the transfer of a state prisoner from whom he indirectly received political contributions.

The indictment handed down in Atlanta details that Streat twice influenced the Department of Corrections to transfer prisoner Ronald Gaither from close security prisons to lower security institutions. These transfers took place only after Streat received $4,500 in contributions from people with ties to Gaither.

Streat was suspended from his office by Gov. Roy Barnes following the recommendation of a special Senate committee. Streat becomes only the second Georgia legislator to be removed from office since 1984, when provisions for removing a state official were added to the state's constitution.

The indictments and suspension culminated a nearly twoyear investigation by the Georgia Bureau of Investigation (GBI). The investigation found that Gaither, who is serving a life sentence after being convicted of murdering a man in 1983 as part of a plan to collect $60,000 in life insurance, was transferred several times, at ...

Oklahoma Rejects Prisoner Mail Box Rule

The Oklahoma State Court of Ap peals held that the "Prisoner Mail Box Rule" is not available to Oklahoma prisoners and that "filing" means when a proper petition is delivered to the proper court.

The Tenth Circuit Court of Appeals certified a question of law to the Oklahoma Court of Appeals concerning whether the "Prisoner Mail Box Rule" applies to filings in Oklahoma district courts pursuant to the Oklahoma Post Conviction Procedure Act.

The Court of Appeals answered the question "by stating that the `prisoner mail box rule' does not apply to these filings, because" the definition of `filing' means when a document is delivered to the proper court for the purpose thereof; and "the clear and unambiguous language of the statute does not provide for any other means of filing." The court also conclude that since there is no statutory time limitation for filing a post-conviction relief application in non-capital cases, "policy considerations do not require the adoption of a `prisoner mail box rule.'" See: Moore v. Gibson , 27 P.3d 483 (Okla.Crim.App. 2001).

Of course, this ruling fails to take into consideration that there is now a one (1) year time limitation for filing a federal ...

Sixth Circuit Upholds Denial of Prison Doctor's Qualified Immunity

The Sixth Circuit Court of Appeals has upheld denial of qualified immunity to a state prison doctor by the Federal District Court in Michigan. Richard LeMarbe is a Michigan state prisoner. In 1996, he was treated for chronic gallbladder problems by Dr. Jerome Wisneski, a general surgeon. Two days after surgery to remove his gallbladder, LeMarbe began experiencing nausea, pain, and abdominal distension. Tests suggested bile in his abdomen.

Dr. Wisneski performed exploratory surgery on LeMarbe. He found five liters of bile fluid in LeMarbe's abdomen and evidence of a bile tract leak. Unable to locate the source of the leak, Dr. Wisneski closed the incision. LeMarbe was discharged a few days later.

Two weeks later, LeMarbe was again in pain and his abdomen distended. A different doctor referred LeMarbe to specialist Blaine Tacia. Dr. Tacia performed exploratory surgery that revealed 3 gallons of bile fluid in LeMarbe's abdomen along with serious bile tract and abdominal damage. The cause of the leak was discovered to be a surgical clip left by Dr. Wisneski. LeMarbe required numerous surgeries over two years to fully repair the damage.

LeMarbe filed a 42 U.S.C. §1983 suit alleging Eighth Amendment violations ...

Nominal Damages Not Automatic

The Court of Appeals for the Eleventh Circuit has held that nominal damages are not automatic when a jury renders a verdict for excessive use of force, but fails to award compensatory or punitive damages. Temporary detainee George B. Oliver filed a civil rights action asserting state law claims for assault and battery and the Eighth Amendment excessive use of force claim, for guards' actions while he was at Florida's Dade County Jail.

Oliver testified at trial guard Renzo Falla grabbed him by the throat, slammed him against a wall, and threw him to the floor. Falla then grabbed Oliver and ran him into a wall. While Falla was applying pressure point techniques to cause Oliver pain, another guard joined the attack. Several minutes later, another guard stopped the attack. Oliver stated he suffered a cut knee, broken glasses, and pain to his neck and back. However, he presented no corroborating evidence or medical expenses to support his injuries. Naturally, Falla and the on duty guard denied Oliver was beat.

On appeal, Oliver claimed the district court should have automatically awarded nominal damages after the jury rendered its verdict of excessive force without awarding damages. The Eleventh Circuit held ...

News in Brief

Alabama: Faced with a state budget crunch that had led the state parole board to discontinue Thursday hearings and to consider laying off staff, in July, 2002, governor Don Siegelman found $438,000 in state and federal money to give the parole board to hire four new hearing officers and resume Thursday hearings. Siegleman claims the new hearing officers will release non violent prisoners from prison and free space for the state to accept sentenced prisoners from county jails. The state parole board faces a budget shortfall for the fiscal year beginning in October, 2002, and the state has been fined $2.16 million to reimburse counties for having to house sentenced prisoners that have not been taken to state prisons within 30 days of being sentenced.

Arizona: In May, 2002, a jail prisoner at the Maricopa county jail in Phoenix informed police of an alleged plot by Mormon jail chaplain Robert Bradford, 65, Donald Cochran, 78, an unregistered sex offender and Danny Warner, 43, a "career criminal" who were allegedly plotting to abduct governor Jane Hull, stuff her into a trunk and not release her until she pardoned Cochran at which point they would kill her and bury her ...

Mexican Sweatshops Go Behind Bars

For years U.S. citizens have screamed about losing jobs to cheap overseas labor. Now it seems that U.S. prisoners are in danger of losing jobs to even cheaper prison labor in Mexico. In an effort to stimulate its economy, Mexico is allowing maquiladoras to open up shop in its prisons.

Maquiladoras are foreign owned manufacturing plants in Mexico that assemble imported parts into products for export. With no unions, employees typically work long hours for ridiculously low pay in unsafe conditions. They are part of the worldwide system of low wage sweatshops that feed U.S. markets.

With the recent economic downturn, many maquilas were closing down. Moving their operations to prisons lowers labor costs even further, allowing them to remain profitable.

The current initiative of placing manufacturing plants in Mexican prisons comes under the guise of reforming prisoners. "We are initiating a new type of reform" said Manuel del Riego de los Santos, prison director for the state of Tamaulipas. However, Mexican prisons are noted for human rights abuses such as mistreatment of prisoners and poor living conditions.

De los Santos recently met with the mayor of Reynosa, just across the border from McAllen, Texas, to sign ...

 

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