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Prisoner Education Guide

Prison Legal News: November, 2002

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Volume 13, Number 11

In this issue:

  1. Prisoners, Politics, Money and the Census (p 1)
  2. Supreme Court Holds No Immunity for Alabama Hitching Post (p 6)
  3. Attorney Ghost Writing Must Be Disclosed (p 7)
  4. The Parents' Project Advocacy for Incarcerated Fathers: What's Missing? (p 8)
  5. From the Editor (p 9)
  6. Michigan Visiting Ruling Upheld (p 10)
  7. A Sentence of Their Own (p 11)
  8. New York's Revised "Son of Sam" Law Leads to $100 Million Verdict Against Cop Killer (p 12)
  9. Illinois Jail Guards Acquitted in Killings; California Jail Guard Acquitted in Beating (p 12)
  10. $275,000 Awarded in Stun Belt Settlement (p 13)
  11. No Fundamental Right to Fee Waiver for Civil Rights Action (p 14)
  12. Bureau of Justice Statistics Analyzes Parole Trends (p 14)
  13. Virginia Sheriff Investigated for Misuse of Prisoner Funds (p 15)
  14. Pennsylvania Jail Settles Retaliation Suit for $10,000 (p 16)
  15. Escapes Plague Texas Jails (p 16)
  16. PLRA Attorney Fee Cap and Local Cost Recovery Rules Upheld in New York Hepatitis C Case (p 17)
  17. Texas Extends 6th Amendment Right to Prisoners: Confidential Attorney Calls Allowed (p 18)
  18. Ingram v. Scott Reversed: TDCJ-ID in Compliance with Section 501.008 (p 18)
  19. Settlement Agreement Reached in Wisconsin Supermax Suit (p 19)
  20. $32,500 Florida Jail Accident Settlement (p 20)
  21. PLRA Attorney Fee Cap Applies to Fees on Fees (p 20)
  22. $1 Damages and $1.50 Attorney Fees in Guard Brutality Suit (p 21)
  23. New York Prisoner's Denial of Exercise Claim Set for Trial (p 23)
  24. Washington Pretrial Detainees Have Right to Access Courts (p 24)
  25. District Court Sets Prisoner's "Deliberate Indifference" Hepatitis C Claims for Trial (p 24)
  26. Prison Disciplinary Boards Not "Courts" for Habeas Corpus Purposes (p 25)
  27. Prison Guards Can Be Liable for Prisoner Suicide (p 26)
  28. Administrative Exhaustion Required But Unprejudiced; Dismissal and Equitable Tolling (p 26)
  29. Defendants' Convenience Justifies Transfer of Venue (p 27)
  30. Plaintiff's Disability Impacts Venue (p 27)
  31. Advocacy Groups Challenge Arizona Internet Communications Ban (p 28)
  32. Judge Approves $9.6 Million Settlement in DC Jail Employees' Sexual Harassment Suit (p 29)
  33. News in Brief (p 30)
  34. Mexico Bars Extradition of Criminals Facing Life Sentences (p 32)

Prisoners, Politics, Money and the Census

It's a standing joke that the Texas economy has been grounded in the 3 C's: cattle, crude, and convicts. But while Texas gets most of the publicity for its massive prison build-up, the human-warehousing trend is literally sweeping the countrysideand it is extremely profitable. Colorado, Kentucky, Georgia, and Virginia have joined Texas, New York, and California in using prisons as tools to bolster small-town economies.

In census year 2000, Minnesota prisoners were paid $1 apiece just for filling out the census form. Wardens from the state's eight prisons unanimously approved the measure in an effort to achieve the goal of 90 percent participation set by the Census Bureau. Tom Beaver, who was in charge of coordinating data collection in six states, said that the idea of paying prisoners was "unique to Minnesota."

Prison officials were quick to point out that the money does not come from taxpayers. Prisoners were paid from a fund set aside to buy recreation equipment. Revenue for the canteen is generated from prisoner payroll deductions. Jim Bruton, warden of Oak Park Heights prison said, "It seems to be a fair way to do it and not spend taxpayer money."

Why is so much ...

Supreme Court Holds No Immunity for Alabama Hitching Post

by David M. Reutter

The U.S. Supreme Court has reversed an Eleventh Circuit Court of Appeals ruling that held government officials are entitled for qualified immunity unless there exists previous case law that is "materially similar" to the facts at issue. The Supreme Court held that there need only exist cases that give officials a "fair and clear warning" that their conduct violates the constitution, and when such cases exist the officials are not entitled to qualified immunity.

In 1995, Alabama was the only state that followed the practice of chaining its prisoners together on outside work squads. The Alabama Department of Corrections (ADOC) was also the only prison system in the nation that permitted use of "hitching post" to punish its prisoners for misbehavior or refusing to work on the chain gang. The hitching post is a horizontal bar that is 45 to 57 inches from the ground, and prisoners were to be handcuffed on the bar at face level. Over long periods of time from being hitched, a strain on the muscles would result from having to stand for so long and arms raised in a stationary position. In addition, prisoners would endure exposure to sunburn, dehydration ...

Attorney Ghost Writing Must Be Disclosed

The Tenth Circuit has held that participation by an attorney in drafting otherwise pro se appellate briefs is per se substantial legal assistance and must be acknowledged by the attorney's signature. The case arose as a landowner's dispute wherein Arthur Duran sued Dean Carris claiming Carris' land development actions violated the RICO Act. The District Court granted Carris' motion to dismiss. On appeal, the Tenth Circuit upheld the dismissal and addressed Carris' request for sanctions that alleged that Duran's pro se brief was actually ghostwritten by his former attorney, Harry Snow. The Court issued an order to Duran and Snow to show cause why they should not be sanctioned and subsequently admonished Snow but did not impose sanctions.

Noting the signature requirement of Fed.R.Civ.P. 11(a), the Court found that Snow's authoring of pleadings without signing them or entering an appearance for Duran was substantial legal assistance. This afforded Duran the benefit of the liberal construction afforded pro se litigants while shielding Snow from accountability for his actions.

The Court also quoted at length from a recent law review article which found that the "failure to disclose ghostwriting assistance to courts and opposing ...

The Parents' Project Advocacy for Incarcerated Fathers: What's Missing?

Denise Johnston & Michael Carlin

T.L. had a son with a woman who lived in another part of his home state. He had little contact with the woman after the baby's birth, and never met her family. When his son was 3 months of age, T.L. was arrested. Two years later, facing a life sentence, T.L. has attempted to write and call the boy's mother without success. There is no one by her name living in the city where they met.

I.G. was sentenced to 10 years in a state prison; their mother refused to bring his children to the prison to visit, but I.G. had weekly telephone calls with his daughters. Then, during the second year of his sentence, I.G.'s daughters and their mother moved to another part of the country without leaving a forwarding address. I.G. wants to see his daughters or at least talk to them on the phone, but he doesn't know how to find them.

In 1990, the Center for Children of
Incarcerated Parents created the Child Custody Advocacy Services [CHICAS] Project to help the families of prisoners retain custody of their children. We assumed that the greatest child custody problem facing incarcerated parents was loss of their children to the child welfare system, and during the first 5 years of the project this was true of CHICAS clients. During the period 1990-95, a total of 70% had active cases in the Juvenile Dependency Court, compared to 15% with cases in Family Court and 15% who had child custody problems without court involvement. At the time of this study, 76% of incarcerated CHICAS clients were moms and 24% were dads.

Now, eight years later, our CHICAS caseload looks ...

From the Editor

Subscribers should soon receive PLN's annual fund-raiser mailing. If you can afford to make a donation to help sustain and expand PLN's work, please do so. PLN relies almost exclusively on reader support to continue publishing. Subscriptions account for only a portion of the income needed to keep publishing.

The past year has seen significant achievements by PLN, including the completion of our comprehensive index system and the publication of our new book Prison Nation by Routledge Press. With your support we can continue our work. One project we are seeking funding for is to expand PLN 's size to 40 pages to bring readers still more news and information each month. Our fundraiser goal for this year is $35,000. Please donate what you can and don't think that a small donation doesn't help. They do and every little bit helps make a difference.

PLN has been expanding its book selection. We now offer several new dictionaries, self help legal books and cutting edge critiques of the criminal justice system, including several that we recently reviewed in PLN . Check out our book listings on pages 34-35 for more information on these exciting new titles. If ...

Michigan Visiting Ruling Upheld

In an opinion as strongly worded as the District Court opinion it reviewed, the Sixth Circuit Court of Appeals has upheld a Federal District Court ruling striking down the Michigan Department of Corrections (DOC) severe visiting restrictions as unconstitutional. PLN reported the District Court decision in the June 2002 issue.

Michigan DOC, responding to explosive prison population growth and other perceived problems, severely restricted prison visiting in all DOC prisons. The restrictions, enacted in 1995, banned visits from all minor relatives of prisoners except children and grandchildren; banned all visits by prisoners' children when parental rights had been terminated, whether termination was voluntary or involuntary; banned all visits by former prisoners except immediate family; required that all visiting children be accompanied by a parent or legal guardian; and permanently banned all visits, excluding attorneys and clergy, for prisoners who had two or more violations of DOC's drug abuse policies.

Prisoners challenged the ban under 42 U.S.C. §1983, claiming various constitutional violations. The DOC argued the ban applied only to contact visits and that prisoners have no absolute right to contact visits. The district court ruled for DOC, and the appeals court affirmed. However, as the appeals court ...

A Sentence of Their Own

Directed and Produced by Edgar A. Barens (2001), 64 minutes, VHS video, $125

Review by Hans Sherrer

Produced in the form of a home video, A Sentence of Their Own documents the negative impact of a man's 1996 seven-year prison sentence on his wife and son. The most obvious effect was the man's family was deprived of the emotional and financial support he provided. The family was further impacted by his imprisonment over 1,000 miles from home. They couldn't afford to visit him in New Hampshire more than once a year for a few days, and they couldn't afford to talk with him on the phone more than 30 minutes per month.

A Sentence of Their Own provides food for thought to people who haven't experienced imprisonment as a family member. The video can help those people become aware of the harmful side effects of the sentence concurrently served by a prisoner's family.

A Sentence of Their Own is an excellent consciousness raising tool suitable for children of all ages, churches and activist groups. For information write:

Edgar A. Barens
Columbus Circle Station
P.O. Box 20843
New York, NY 10023

The video ...

New York's Revised "Son of Sam" Law Leads to $100 Million Verdict Against Cop Killer

New York's Revised "Son of Sam" Law Leads to $100 Million Verdict Against Cop Killer

by Lonnie Burton

The 2001 revisions to New York's so-called "Son of Sam" law, which now allows crime victims to sue their perpetrators and confiscate their money anytime they receive in excess of ...

Illinois Jail Guards Acquitted in Killings; California Jail Guard Acquitted in Beating

Sgt. Patricia Pultz and deputies Lawrence Koscianski and William Spatz of the Cook County, Ill. sheriff's dept. were acquitted on March 12, 2002 in the murder of Louis Schmude. Prosecutors allege Schmude's death on May 7, 2000, was the result of a beating by the guards on May 5th in a holding cell at the Bridgeview courthouse.

Defense attorneys claim Schmude died from a fall he suffered in the jail infirmary, where he was transferred after the May 5 beating. They cite as evidence Schmude's death certificate that lists the cause of death as a beating sustained on May 7th. Deputy medical examiner Mitra Kalelkar, who supervised the autopsy, testified that Schmude's death was a direct result of the beating he received May 5th. After the trial, Cook County Medical Examiner Edmond Donoghue said the date on the death certificate "was a mistake."

Judge Ronald Himel apparently disregarded Kalelkar's testimony and took just four minutes to acquit the guards, even though he admitted some of the testimony was "consistent with the defendant's being guilty." Prosecutors say he was biased from the beginning.

On April 11, 2002, in an unrelated incident, El Dorado County Jail ...

$275,000 Awarded in Stun Belt Settlement

The Ninth Circuit Court of Appeals partially reversed a preliminary injunction order that had enjoined the Los Angeles County Sheriff from using a stun belt on prisoners. After remand, a settlement for $275,000 and a change in policy was reached.

Ronnie Hawkins, a prisoner in the L.A. County ...

No Fundamental Right to Fee Waiver for Civil Rights Action

No Fundamental Right to Fee Waiver for Civil Rights Actions

The Court of Appeals for the Eighth Circuit has upheld the PLRA's three strikes rule, and overturned a case which found that rule unconstitutional. The opinion in this case contains combined appeals brought by the defendants sued by Arkansas prisoners Ray Higgins and Reginald Early. Higgins had previously filed three actions against city and police officials in Little Rock relating to his arrest, which were dismissed as frivolous.

This time he sued the city attorney for concealing the police officers' misconduct. Early filed suit for the denial of exercise in confinement after having six previous actions dismissed for failure to state a claim. The district court, based upon the ruling in Ayers v. Norris, 43 F. Supp. 2d 1039 (E.D. Ark. 1999), granted Higgins and Early in forma pauperis status.

The Ayers court held 28 U.S.C. §1915(g) unconstitutional when it undertook a strict scrutiny review of the statute. The Eighth Circuit concluded the analysis in Ayers was incorrect because §1915(g) need survive only a rational basis test, not a strict scrutiny test. The court overturned Ayers holding the three strikes rule does not impinge ...

Bureau of Justice Statistics Analyzes Parole Trends

The Bureau of Justice Statistics has issued a report analyzing changes in parole and the resulting effects. The report compared the two types of parole releases (discretionary and mandatory) and their effects on parole populations in the United States. Discretionary parole is release determined by a parole board. Mandatory parole is release determined by statute; an offender usually serves a stated prison term followed by supervised release.

"By the end of 2000, 16 States had abolished discretionary release from prison by a parole board for all offenders. Another four States had abolished discretionary parole for certain violent offenders or other crimes against a person." Mandatory parole is now the most common form of release from prison. Nonetheless, there has been a 3-fold increase in the number of persons under parole supervision from 1980. In 2000, about 312 adults per 100,000 adult U.S. residents were on parole supervision, compared with 121 per 100,000 in 1980. Nationwide the annual growth in State parole was 10% from 1980 to 1992 and 0.7% since 1992.

Much of the change from discretionary to mandatory parole is because of the 1994 Crime Act. That Act established the Violent Offender Incarceration and Truth-in-Sentencing ...

Virginia Sheriff Investigated for Misuse of Prisoner Funds

When prisoners at the Richmond, Virginia jail buy goods from the inmate store, the profits were supposed to be used for the benefit of the prisoners. Instead, an investigation has revealed that Richmond's sheriff, Michelle B. Mitchell, has been spending the money on social club memberships, photographs of herself, and parties and gifts for her deputies.

Virginia state law mandates that store profits "shall be used within the facility for educational, recreational or other purposes for the benefit of the inmates." The store, or canteen, sells food, toiletries and clothes to prisoners. Much of the spending of the store profits did go for items that clearly benefited the prisoners, such as newspapers, fans, and television equipment.

But expense reports show that Mitchell also spent $834 for meals and a membership at a local social club and restaurant, $596 for pictures of herself for use in her re-election campaign, and $525 to buy a Palm Pilot. Mitchell also donated $5,000 of store profits to the Historic Richmond Foundation, in return for which she and other jail official received free tickets to a dinner.

The FBI and Virginia State Police are conducting the investigation into Mitchell's expenditures, which was ...

Pennsylvania Jail Settles Retaliation Suit for $10,000

In April, 2000, the Schuylkill County Prison in Pennsylvania, paid $10,000.00 to settle a law suit filed by pro se prisoner, Michael Andrew Spina. Spina complained that he was retaliated against by jail officials and other staff for filing a previous law suit against the prison. Spina also ...

Escapes Plague Texas Jails

A rash of escapes have plagued Texas jails over the past year. On January 28, 2002, four prisoners used a homemade knife to overpower two guards and force their way out of Montague County jail near the Texas/Oklahoma border. The four were eventually captured together eight days later in southern Oklahoma, not far from the jail.

Jail overcrowding was cited as the major security issue leading to the escape. Montague jail had been "decertified" prior to the escape for exceeding the maximum prisoner to guard ratio of 48 to 1. The day of the escape the ratio was 55 to 1. In 2001 Texas had over 140 escapes, compared to 116 in 2000 and only 74 in 1976. While most of America heard about the daring daylight escape of the Texas 7, few were aware of an equally dramatic escape that took place last October.

On October 11, 2001, five prisoners escaped from the Grayson County Jail. They jimmied the doors of their maximum security cells, crawled through an air vent, and made their way to a dirt floor basement. From there they tunneled their way to freedom. Two were recaptured Friday afternoon and a third was taken into ...

PLRA Attorney Fee Cap and Local Cost Recovery Rules Upheld in New York Hepatitis C Case

by John E. Dannenberg

The U.S. District Court (S.D. N.Y.) upheld the Constitutionality of the Prison Litigation Reform Act's (PLRA) attorney fee cap limitations and applied local rules to cost recovery, limiting fee recovery to $22,500 and costs to $3,001 in a prisoner 42 ...

Texas Extends 6th Amendment Right to Prisoners: Confidential Attorney Calls Allowed

On December 14, 2001, Texas finally released its stranglehold on the right to confidential phone calls between prisoners and attorneys. Texas had been the only state that monitored attorney phone calls. Even then the American Civil Liberties Union had to pry every last finger off the receiver.

In a letter dated October 16, 2001, Yolanda Torres, Litigation Director for the ACLU of Texas, pointed out that when questioned about its abusive policy regarding the confidentiality of phone calls between prisoners and their attorneys TDCJ had dodged the issue for over a year. She outlined in depth the various ways in which Texas was out of step with the rest of the nation's state and federal prisons. Even conservative states like Florida, Louisiana, Oklahoma, and Oregon have long forbidden prison officials to monitor properly placed phone calls between prisoners and their attorneys.

Carl Reynolds, Esq., Special Counsel to the Executive Director of TDCJ, tried to justify the draconian practice under the thin guise of prison security. His arguments included the need to verify an attorney's identity; the need to guard against non-legal conversation; and the danger that an attorney might engage in criminal activity.

However, Ms. Torres quickly pointed ...

Ingram v. Scott Reversed: TDCJ-ID in Compliance with Section 501.008

by Matthew T. Clarke

On appeal following remand, a Texas court of appeals has held that the instructions on a grievance form bring TDCJ-ID into compliance with the requirement in section 501.008, Texas Government Code, that the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) provide procedures to assist prisoners in identifying evidence to substantiate the prisoner's claim.

As reported in the May, 2002, PLN , Chester William Ingram, Jr., a Texas state prisoner, filed a state court petition for a writ of mandamus alleging that TDCJ-ID had failed to comply with section 501.008. The district court granted TDCJ-ID's motion for summary judgment. The court of appeals reversed, holding that TDCJ-ID's claim it had unidentified "unwritten" procedures which complied with the section was unproven and absurd, reversed the judgment and ordered the district court to grant Ingram summary judgment and issue the writ of mandamus against TDCJ-ID.

On rehearing, the court of appeals continued to hold that TDCJ-ID's claim that it needed and had no written policy "flies in the face of common sense." It also held that TDCJ-ID was not shielded by official or sovereign immunity against a mandamus action seeking to enforce a statutory ...

Settlement Agreement Reached in Wisconsin Supermax Suit

by John E. Dannenberg

Wisconsin Department of Corrections (DOC) officials settled the 42 USC § 1983 class action civil rights suit brought by seriously mentally ill prisoners housed in the Boscobel, WI Supermax state prison by agreeing not to house the mentally ill there, by substantially reducing "barbaric" conditions and by implementing programs and services consistent with other high-security Wisconsin prisons. Additionally, the two principal plaintiffs were awarded $3,500 each in damages.

After the prisoners won a substantial preliminary injunction (PI) on October 11, 2001 prohibiting the housing of such mentally ill prisoners at Supermax [ Jones v. Berge , 164 F. Supp.2d 1096 (W.D. Wis. 2001)], and after prison officials lost a procedural end-run maneuver on September 18, 2001 alleging failure to exhaust administrative remedies [ Jones v. Berge , 172 F.Supp.2d 1128 (W.D.Wis. 2001)], defendant prison officials quietly entered into a settlement agreement on January 24, 2002 that permanently altered the "Supermax" concept.

The Agreement, which went to the heart of the problem by eliminating the name "Supermax" and by eliminating the labeling of its prisoners as the "worst of the worst," set forth specific minimum standards (details listed below), all of which were subject to ...

$32,500 Florida Jail Accident Settlement

On October 30, 2001, the Broward County jail in Ft. Lauderdale, Florida, settled a prisoner's work accident suit for $32,500. Edward Beal, 47, a prisoner at the county jail was assigned to a jail work program at the Dania Beach facility. While cutting trees, Beal fell seven to ...

PLRA Attorney Fee Cap Applies to Fees on Fees

by John E. Dannenberg

In a case of first impression, the Fifth Circuit US Court of Appeals ruled that the Prison Litigation Reform Act (PLRA) fee cap limiting recovery of a prevailing prisoner plaintiff's attorney fees to 150% of a $2 nominal damages award also applied to attorney fees ...

$1 Damages and $1.50 Attorney Fees in Guard Brutality Suit

by John E. Dannenberg

The Eighth Circuit US Court of Appeals affirmed the award of $1 nominal damages for guard brutality in violation of the Eighth Amendment and limited the prevailing prisoner plaintiff's attorney fees to $1.50

Robert Foulk, a state prisoner at the Moberly, MO Correctional Center ...

New York Prisoner's Denial of Exercise Claim Set for Trial

The United States District Court for the Southern District of New York has denied summary judgment in part to high-ranking officials of the New York Department of Correctional Services (DOGS) and to a prisoner plaintiff and has set for trial the prisoner's claim that DOCS officials denied him meaningful exercise while he was in a DOC Special Housing Unit (SHU).

Rahsaan Williams is a DOCS prisoner at the Clinton Correctional Facility. While at the Sullivan Correctional Facility, Williams was ordered confined to SHU for 90 days after being found guilty in a disciplinary hearing of various rules violations. Williams administratively appealed his infraction and SHU confinement. His infraction was reversed after 75 days, and Williams was transferred to general population in Clinton.

SHU prisoners are entitled to one hour of daily exercise confined in a one-person cage. While in SHU, Williams was found guilty of harassing a guard who Williams alleges denied him exercise. For the harassment, Williams was ordered confined for 28 days in personal restraints (handcuffs attached to a waist chain) whenever he was out of his cell, including for exercise. Williams argued that the restraints prohibited him from engaging in meaningful exercise.

After exhausting his administrative ...

Washington Pretrial Detainees Have Right to Access Courts

The Washington State Court of Appeals held that Washington prisoners have a greater right to access to the courts than the federal constitution provides, and that right extends to pro se pretrial detainees.

Matthew Silva was charged with taking a car without permission and attempting to elude police. He remained in custody pending trial. The trial court granted Silva's pretrial motion to proceed pro se, but appointed standby counsel. "In numerous pretrial motions, Silva insisted that he enjoyed a constitutional right of physical access to a law library or a person trained in the law to perform research services for him. He also argued that he should have an investigator/runner appointed for him to interview witnesses and serve subpoenas. It appears that the trial court expected that the public defender would provide these services to Silva."

"But the public defender . . . steadfastly maintained that his role was only to offer technical assistance during court proceedings and to step in as counsel should Silva change his mind and request representation. Counsel refused to provide investigative, research, or runner services for Silva, arguing that such a responsibility could expose the public defender's office to unfounded research requests and other unreasonable ...

District Court Sets Prisoner's "Deliberate Indifference" Hepatitis C Claims for Trial

A Connecticut Federal District Court has ordered that a state prisoner's Eighth Amendment claims arising from Connecticut Department of Corrections (CDOC) officials' deliberate indifference of his severe medical conditions be severed and that some of the claims proceed to trial. The court deferred ruling on the claims not ordered to trial.

Booker Torrence is a CDOC prisoner suffering from hepatitis C virus (HCV) infection, diabetes, and complications from both diseases. In January 1994, Torrence was confined at CDOC's Cheshire Correctional Facility, where medical staff examined him and determined he had no health problems. In May 1995, Torrence began reporting daily to Cheshire's medical staff requesting medical attention for serious, painful symptoms. Dr. Steven Stein, a CDOC physician at Cheshire, saw Torrence but did not examine him or provide any care. Torrence finally collapsed and was diagnosed with "severe diabetic ketoacidosis/insulin dependent diabetes mellitus" and HCV infection. Torrence was never formally informed or advised of his HCV status. Moreover, on multiple occasions from 1995 - 1997, Torrence was given the wrong dosage of insulin, endangering his health.

Torrence filed his initial pro se complaint in February 1996 under 42 U.S.C. §1983, alleging Eighth Amendment violations due ...

Prison Disciplinary Boards Not "Courts" for Habeas Corpus Purposes

Prison Disciplinary Boards not "Courts" for Habeas Corpus Purposes

The Seventh Circuit Court of Appeals has held conclusively that prison disciplinary boards lacking a true judicial review process are not "courts" within the meaning of 28 U.S.C. §2254(d), as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA). The ruling disapproves contrary dicta in several prior Seventh Circuit cases and conflicts with unexplained, contrary behavior in other federal circuits. This is the first definitive ruling on the meaning of the word "court" in relation to prison disciplinary boards since AEDPA took effect.

Former Marion County [Indiana] Jail prisoner Phil White was accused of drug trafficking with a jail employee and her daughter. An Officer Thompson investigated the charge and presented his evidence (a confidential investigative file and a videotaped interview with the employee) to the Conduct Adjustment Board (CAB). At the close of evidence, Thompson remained with the CAB during deliberations. White was infracted for trafficking, stripped of good time, and had his parole delayed six months. White appealed administratively, but his infraction was upheld.

White petitioned for a writ of habeas corpus, 28 U.S.C. §2254, in federal district court, claiming denial of due ...

Prison Guards Can Be Liable for Prisoner Suicide

The Seventh Circuit Court of Appeals has reversed and remanded the dismissal of a 42 U.S.C. §1983 suit against Wisconsin prison officials. In so ruling, the court held that prison guards can be held liable under Eighth Amendment "deliberate indifference" claims for failing to take reasonable steps to prevent the death of a prisoner known to be at substantial risk of suicide.

Matt Sanville was a Wisconsin prisoner with a history of multiple mental illnesses "characterized by a history of suicide attempts, hospitalization, and drug treatment...." Upon admission to prison in 1998, Martha Sanville, Matt's mother, notified prison psychiatric staff of his mental illnesses. She re-notified doctors at Waupun Correctional Institution (WCI) when he was transferred there.

Prison doctors failed to diagnose any particular mental illnesses, misdiagnosed Matt's appendicitis, and despite his increasingly bizarre and threatening behavior, allowed Matt to go off his psychotropic medications. While off medication, Matt's behavior landed him in segregation, where he was fed "nutri-loaf." He refused to eat, claiming it was disgusting. During his stay at WCI, Matt lost forty-five pounds, twenty-five during the last month of his life.

Matt wrote alarming letters to his mother, who notified WCI officials ...

Administrative Exhaustion Required But Unprejudiced; Dismissal and Equitable Tolling

The 5th Circuit court of appeals, in accord with a recent U.S. Supreme Court decision, held that administrative exhaustion is required in all prisoner cases, regardless of the relief sought. It held that cases pending at the time of this decision should be dismissed without prejudice and with the statute of limitations tolled to allow for administrative exhaustion and refiling of the suit.

Mark Eric Wright, a Texas state prisoner, brought a § 1983 action against Gayle Hollingsworth, a registered nurse at the Telford prison unit. Wright alleged deliberate indifference to his medical needs and sought monetary damages for pain and suffering stemming from inadequate treatment of a ruptured eardrum.

Hollingsworth filed a motion to dismiss claiming that Wright failed to exhaust administrative remedies prior to bringing the § 1983 action. The district court -granted -the motion and dismissed the suit; Wright appealed the judgment.

TDCJ offers administrative remedies to prisoners in the from of a two-step grievance procedure. Wright alleged that filing a Step-1 grievance was sufficient to put the state on notice of his § 1983 action and that filing a Step-2 grievance was unnecessary since he only sought monetary damages, which is not an available remedy under the grievance ...

Defendants' Convenience Justifies Transfer of Venue

California Department of Corrections (CDC) defendants successfully moved to transfer the original venue of a prisoner's civil rights lawsuit to another district - based upon convenience.

Lisa Williams, a prisoner at Valley State Prison for Women (VSPW) near Fresno, CA sued prison officials for alleged sexual abuse she suffered at the hands of prison physician Dr. Robert Bowman. She alleged that during four medical appointments, Dr. Bowman made inappropriate sexual remarks, manipulated her genitalia during pelvic exams, fondled her breasts, exposed his erect penis, forced her to touch his penis and attempted to force her to orally copulate him. She sued Bowman under 42 U.S.C. § 1983, with pendant state common law claims for assault, battery and sexual battery - filing her suit in the US District Court, Northern District of California (San Francisco).

Citing convenience factors pursuant to 28 U.S.C. §1404(a), defendants moved to transfer venue approximately 100 miles away to the Fresno Division of the Eastern District of California. The question presented here is the court's balancing of factors relating to the convenience of both sides. As the moving party, defendants bore the burden of showing that transfer was appropriate - and not merely the ...

Plaintiff's Disability Impacts Venue

A federal district court in New York held that a plaintiff's physical disabilities were relevant in deciding which court should hear his case. Ambroz Nikac is a wheelchair bound paraplegic who was arrested on federal weapons and stolen property charges. He spent ten months in the Westchester county jail in Valhalla, New York, before the charges were resolved. Nikac filed suit claiming the jail was vermin infested, had inadequate ventilation and bathing facilities. He also claimed he was denied adequate medical care and as a result developed bedsores, infections and intestinal problems.

Nikac filed suit in Manhattan but local court rule 21(a) designates White Plains as the federal court to hear claims arising from Westchester County. The defendants filed a motion to transfer the case to White Plains, which the court denied. The court held that Nikac's disability and the fact that it was easier for him to access the Manhattan courthouse via public transportation from his home in the Bronx was a relevant consideration. Weighing the relative burdens on the parties, the court held that the travel burden on Nikac outweighed any minor inconvenience to the defendants. The court also held that, at this stage of ...

Advocacy Groups Challenge Arizona Internet Communications Ban

On July 18, 2002, the Canadian Coalition Against the Death Penalty(CCADP), Citizens United for Alternatives to the Death Penalty(CUADP) and Stop Prisoner Rape(SPR), filed a federal law suit against Terry L. Stewart Director of the Arizona Department Of Corrections(ADOC) pursuant to 42 U.S.C. § 1983. The suit was filed to challenge the constitutionality of four Arizona statutes: Ariz.Rev.Stat. § 31-235(c)(d), §31-242(a)(b), § 411604(a)(9), and § 13-3001(3)(12). The statutes prohibit and criminalize prisoners communicating with, or having personal, legal or any other type of information posted on the Internet, by advocacy groups or any other legal or non-legal web sites. See: "Arizona Prisoners Can't Access Internet, and Net Accesses Them" in the February 2001 issue of PLN .

The CCADP, CUADP and SPR, post information on their sites about prisoners' criminal cases, including newspaper articles and links to other legal documents, poetry, art, requests for correspondents and appeals for legal assistance. The plaintiffs claim in their suit that the purpose of the statutes is to suppress the flow of information from prisoners to the outside world and to prevent the advocacy of plaintiffs and any other advocacy or anti ...

Judge Approves $9.6 Million Settlement in DC Jail Employees' Sexual Harassment Suit

In January 2002 U.S. District Judge Royce C. Lamberth gave final approval for disbursement of $9.6 million from the settlement of a class-action sexual harassment lawsuit brought by female employees of the Washington D.C. Department of Corrections.

The case, which began with a 14-page handwritten complaint by ...

News in Brief

Brazil: On September 15, 2002, the state of Sao Paulo closed the notorious Catandiru prison in Sao Paulo. The 46 year old prison had been Latin America's largest, with more than 8,000 prisoners held in a space designed for 3,250. Its long history of violence included a 1992 police massacre that left 111 prisoners dead, plus ongoing riots, hostage takings, escapes, murders and other events. Jesus Ross Martins, the prison's last warden said "Detencao [the prison] is like a person with so many illnesses that the only solution is to issue the death certificate."

California: In August, 2002, prisoners Nicholas Nabors, 25, and his cellmate, David Martinez, 31, allegedly got into a fight with prison guards Tom Case and Thomas Vazquez. Case had his jaw broken and sinus cavity damaged while Vazquez was stabbed in the head several times with a kitchen food utensil. After Martinez and Nabors were subdued other prisoners allegedly attacked Sergeant Michael Ayala and knocked him out. The incident occurred in the dining hall of the Lancaster State Prison near Los Angeles. The guards used tear gas and batons to subdue the combatants and other prisoners in the mess hall. The injured ...

Mexico Bars Extradition of Criminals Facing Life Sentences

A ruling by the supreme court of Mexico has blocked the extradition of more than 70 murderers, drug smugglers and organized crime figures who face life sentences in U.S. prisons.

The high court's decision, handed down in October 2001 and published two months later, flows from an interpretation of Mexico's constitution that provides that all people can be successfully rehabilitated. A life sentence, said the court, is contrary to that concept. In Mexico, the maximum prison sentence is 40 years, although a 60-year term can be imposed in special circumstances. Mexico does not have the death penalty.

In a 6-2 opinion, Justice Roman Palacios wrote: "It would be absurd to hope to rehabilitate the criminal if there were no chance of his returning to society." Consequently, a life sentence would be inimical to the Constitution's spirit of rehabilitation.

Because the high court's decision is based on the constitution, neither Mexico's president nor its legislators can change it.

In January 2002, a lower court judge in Mexico invoked the Supreme Court ruling to bar the extradition of Augustin Vasquez, charged with the 1994 murder of Richard Fass, a U.S. Drug Enforcement Agent in Arizona ...


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