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Prisoner Education Guide

Prison Legal News: December, 2002

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Volume 13, Number 12

In this issue:

  1. Medical Care Still Deficient in Texas Prisons (p 1)
  2. Pro Se Tips and Tactics (p 6)
  3. Ohio Prisons Make Almost $5 Million in Improper Food and Education Payments (p 8)
  4. Correctional Medical Services Pays Out Another $1 Million in 1997 Ohio Escape, Murder (p 9)
  5. HUD Leases Must Evict Innocent Tenants for "Any" Drug Activity (p 10)
  6. Unnamed Class Members Can Object to Settlement (p 10)
  7. Jail Over Detention From Lack of Release Policy Actionable Under Section 1983 (p 10)
  8. Complaint Needs Only Short, Plain Statement of Claim (p 10)
  9. Good Time Allowed on Washington Weapon Enhancements (p 12)
  10. From the Editor (p 13)
  11. Colorado Sex Offenders Freed from Mandatory Parole (p 14)
  12. Private Employer Must Pay $841,000 Back Wages to 167 California Prisoners (p 16)
  13. Texas May Not Revoke Parole Without a Hearing (p 16)
  14. Washington Gift Publication Ban Not Clearly Unconstitutional Before Crofton (p 17)
  15. Louisiana Sheriff Pays $1.35 Million Settlement in Death of Diabetic Prisoner (p 18)
  16. Prisoner Allowed Discovery in Mail Destruction Case (p 18)
  17. 2003 Political Prisoner Calendar Available (p 19)
  18. Fatal Overdoses: Drugs and Death in Prison (p 20)
  19. Georgia Supreme Court Bans Use of the Electric Chair (p 20)
  20. Ex-Georgia Sheriff Convicted in Ambush Killing of Successor (p 21)
  21. Prisoner's Medical Information Privacy Right Established in Third Circuit (p 22)
  22. The Unmourned Death of Felony Murder by Assault in Washington (p 22)
  23. Alaska Prison Design Case Settles for $1 Million (p 23)
  24. Washington DOC Pays $2,306.22 in Prisoner PDA Suit (p 24)
  25. Dismissal of Legal Mail and Retaliation Claims Reversed (p 24)
  26. Furniture Makers Challenge UNICOR (p 25)
  27. Son of Sam II Law Enacted in California (p 26)
  28. California's "Son of Sam" Law Held Unconstitutional (p 26)
  29. Washington Sex Offender Community Placement Dilemma (p 27)
  30. Summary Judgment Denied on New York Medical Isolation Conditions (p 28)
  31. Florida Prisoner Sues for Contracting HIV (p 28)
  32. Texas Cannot Use Enhancement to Deny Mandatory Supervision (p 29)
  33. Failure to Treat Ruptured Tendon; Qualified Immunity Denied (p 29)
  34. News in Brief (p 30)

Medical Care Still Deficient in Texas Prisons

Deficient medical care at the unit level has Texas prisons incubating a new, more virulent strain of HIV. Dr. William Obrien is one of the most noted doctors on staff with the University of Texas Medical Branch. (UTMB) Over a year ago he discovered that "patients in the Texas prison system infected with (HIV) frequently have a drug-resistant form of the virus." He links this occurrence with the "inconsistent administration of medication" at the unit level. Such inconsistent treatment produces "diminished responses to drug therapy." Obrien has determined that the source of the problem is what Texas prisoners call "the pill window."

On Texas prison units, drugs are administered in basically two ways. The preferred and most effective method is a cardboard package of pop-out pills called KOP, an abbreviation for "keep on person." The obvious advantage to KOP packs is the consistency with which medication can be taken, a consistency that is vital for the effective treatment of AIDS.

However, as with most bureaucracies, the preferred method is not necessarily the most common. A 1998 audit showed that since UTMB took over health care at the Texas Department of Criminal Justice (TDCJ) in 1993, KOP medication was reduced from ...

Pro Se Tips and Tactics

The Supreme Court recently decided a case that may affect where you want to file a lawsuit against state defendants. There are some circumstances in which you may want to file your claims, including your federal claims, in state court.

1. The Lapides Case

The recent case is Lapides v. Board of Regents , 122 S.Ct. 1640 (2002). Lapides sued the State of Georgia and some of its officials in state court, and made claims under both state law and also made "§1983" claims of violation of federal law. But he could also have filed this suit in federal court; he had a choice.

If a lawsuit raises only state law claims, it cannot be brought in federal court (except in cases where the plaintiffs and defendants reside in different states, which is beyond the scope of this column). But if you raise federal "§1983" claims, or both state and federal claims, you can file in either state or federal court. You can file some purely federal law cases in state court because, as you probably know, in most states you can sue under 42 U.S.C. § 1983 in state court, you are not required to go to federal ...

Ohio Prisons Make Almost $5 Million in Improper Food and Education Payments

After receiving an anonymous tip about billing irregularities, the Ohio State Auditor conducted a special audit of the two state prisons: the Noble Correctional Institution (NCI) at Caldwell and the Belmont Correctional Institution (BCI) in St. Clairsville.

Released in November, 2001, the auditor's report showed that NCI's private food service contractors had knowingly over-billed the state $2.08 million for meals not served while NCI, BCI and other Ohio state prisons had paid over $2.8 million for college classes that prisoners did not, or were not eligible to, attend.

Dining for Dollars

In 1998, NCI executed a two year contract with Aramark , a private, for profit food service company based in Oakbrook, Illinois. Beginning November 1, 1998, Aramark was contracted to purchase, cook and serve all daily meals to the 2,200 prisoners at NCI. The contract called for Aramark to be paid $1.24 for each breakfast, lunch, dinner, snack and emergency meal served. The number of meals was to be determined by dining hall entry turnstile counts or the totals from scanners that read the prisoners' meal cards.

During the first six months of the contract, the actual counts showed an average of only 63 ...

Correctional Medical Services Pays Out Another $1 Million in 1997 Ohio Escape, Murder

The family of Charles Dials, who was carjacked and killed by prisoner Alva Campbell during an escape attempt in April 1997, was awarded a $1 million default judgment against CMS in Franklin County (OH) Common Pleas Court on March 6, 2002. This verdict comes after CMS and Franklin County have ...

HUD Leases Must Evict Innocent Tenants for "Any" Drug Activity

HUD Leases Must Evict Innocent Tenants for "Any" Drug Activity

Four tenants of Oakland Housing Authority (OHA), public housing subsidized by the U.S. Department of Housing and Urban Development (HUD), faced eviction proceedings from their apartments because of the "drug-related criminal activit[ies]" of their children or grandchildren. OHA and HUD claimed that the eviction of innocent tenants, not just the offenders, was required by the Anti-Drug Abuse Act of 1988, 42 U.S.C. §11901(3). A California U.S. District Court enjoined the eviction, holding that innocent tenants could not be evicted for drug activity they did not know about, could not foresee, or could not control. An en banc Ninth District Court of Appeals affirmed the District Court.

The U.S. Supreme Court reversed the appeals court. Analyzing the statute, the Court found that all tenants must be evicted for "any' drug-related criminal activity on or off [the] premises." Innocence is no defense to eviction. The lease conformed to the statute; eviction should have been permitted. See: Dept. of Housing and Urban Development v. Rucker , 122 S.Ct. 1230 (2002)

Unnamed Class Members Can Object to Settlement

Robert Devlin, a pensioner and unnamed class member in a class action suit involving his company pension, attempted to intervene to block a proposed class settlement. The Maryland Federal District Court barred intervention as untimely and accepted the settlement. Devlin appealed, and the Fourth Circuit Court of Appeals affirmed, holding that unnamed class members have no right nor any standing to challenge a class settlement.

The U.S. Supreme Court reversed, holding that all class members have standing to intervene and appeal a class settlement. Further, the Court distinguished this case from Marino v. Ortiz , 484 U.S. 301 (1988), which barred non-class members from intervening. The Court rejected Government arguments that permitting unnamed class members to intervene would violate Federal Rules of Civil Procedure and multiply litigation. See: Devlin v. Scardelletti , 122 S.Ct. 2005 (2002).

Jail Over Detention From Lack of Release Policy Actionable Under Section 1983

An Indiana county jail's lack of policy for the eventual release of detainees arrested pursuant to a Body Attachment raised sufficient facts to defeat the sheriff's motion for summary judgment, thus allowing an overdetained prisoner's civil rights complaint to proceed to trial.

Shakidi Johnson was arrested pursuant to an Allen County Court Body Attachment for minor misdemeanors which required him to serve a total of 40 days in jail. However, he wasn't released until 18 days after his time had been served.

He sued for this overdetention under 42 U.S.C. § 1983, citing the Fourteenth Amendment's Due Process Clause. At issue was what caused his extended stay, and whether that cause rose to the level of a constitutional violation.

Allen County Sheriff James Herman had authority under the court's writ of attachment to arrest Johnson and bring him to court. Herman, however, had no intrinsic authority to otherwise detain Johnson. After Johnson appeared and was sentenced, Herman had authority to hold him for 40 days, but not 58 days. But despite 14 written inquiries from Johnson to Herman as to when his release date was, or why he was still incarcerated, he got ...

Complaint Needs Only Short, Plain Statement of Claim

Akos Swierkiewicz, a 53 year old Hungarian working for Sorema N.A., sued the company under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA). The District Court for the Southern District of New York dismissed, and the Second Circuit Court of Appeals affirmed, holding that McDonnell Douglas v. Green , 93 S.Ct. 1812 (1973), required a plaintiff to establish a prima facie case of discrimination in pleadings. Swierkiewicz appealed to the Supreme Court.

The Supreme Court ruled that the lower courts holdings were too rigid, contrary to the Supreme Court's intent in McDonnell Douglas , and violated Rule 8 of the Federal Rules of Civil Procedure. The Court held "that an employment discrimination plaintiff need not plead a prima facie case of discrimination;" a short, plain statement of the claim and the grounds for the claim will suffice. The case resolves a circuit split and applies to all civil cases. See: Swierkiewicz v. Sorema, N.A. , 122 S.Ct. 992 (2002).

Good Time Allowed on Washington Weapon Enhancements

The Washington Supreme Court recently held that prisoners are entitled to good time credits for time served in presentence detention, even if they receive a firearm or other deadly weapon sentence enhancement following conviction. Understanding the Court's ruling first requires a brief discussion of Washington's firearm and deadly weapon enhancement laws, as well as the Department of Corrections (DOC) policies implementing them.

In 1995, Washington citizens passed the "Hard Time for Armed Crime" initiative. The law requires that any person convicted of a felony committed while armed with a firearm or other deadly weapon receive a sentence enhancement, meaning that additional prison time is added to the base sentence for the underlying offense. The length of the sentence enhancement depends upon the type of weapon used and the seriousness of the crime committed. See generally, RCW 9.94A.510(3)-(4) (formerly codified at RCW 9.94A.310(3)-(4)).

Under the initiative, prisoners sentenced to such enhancements "shall not receive any good time or earned early release time for that portion of his or her sentence." RCW 9.94A.728(1)(formerly codified at RCW 9.94A.150(1)). However, the statute also provides that prisoners are ...

From the Editor

This is the last issue of PLN for the year. We would like to thank all of our readers for your continued support which makes PLN possible. PLN's office staff notes that many readers send letters to our office that do not have the author's name and address on the letter and sometimes the letter becomes separated from the envelope, making it impossible to contact the author. If you write PLN make sure that your name and address is on the letter.

PLN frequently gets letters requesting legal advice, representation and other forms of assistance. Unfortunately, PLN lacks the resources to do more than we are doing which is publish the magazine and ensure that readers actually get it. We have no lawyers on staff. If you need specific cases on a given topic you should buy our index which lists all cases we have reported through 2001, broken down by more than 500 subjects. Because we can't provide direct representation or other forms of assistance we strive to give readers the tools they need to help themselves.

I would like to thank those readers who continue sending PLN newspaper clippings and information about prison and jail ...

Colorado Sex Offenders Freed from Mandatory Parole

In one of the most criticized and widely reported rulings in Colorado history, the state Supreme Court has held that the state's mandatory parole laws do not apply to sex offenders whose crimes were committed on or after July 1, 1993, but before November 1, 1998. Shock waves rippled across the state as the attorney general (AG), victim advocate groups, and prisoncrats scrambled to make sense of the decision and forestall the release of sex offenders through any possible means.

Vance Martin, serving a four-year sentence plus five years mandatory parole for sexual assault on a child, sought post-conviction relief claiming that imposition of mandatory parole was invalid. The motion was summarily denied then affirmed by the Court of Appeals which held that allowing discretionary parole would defeat the legislative purpose behind mandatory parole. Reversing, the Supreme Court held sex offenders whose crimes were committed on or after July 1, 1993 but before July 1, 1996 were subject to a separate discretionary parole statute.

David Cooper, serving a five-year sentence plus five years mandatory parole for second degree sexual assault committed in July of 1996, sought post-conviction relief claiming he was not advised of mandatory parole during his plea ...

Private Employer Must Pay $841,000 Back Wages to 167 California Prisoners

( A San Diego California Superior Court judge ordered CMT Blues, a garment manufacturer, to pay 167 prisoners it had employed at the R.J. Donovan Correctional Facility state prison to pay $841,000 in back wages for the workers' underpaid overtime, late wages and for their unpaid 30 day training ...

Texas May Not Revoke Parole Without a Hearing

The Texas Court of Criminal Appeals has held that the Texas Board of Pardons and Parole's (BPP's) policy of revoking the parole of a parolee in an Intermediate Sanctions Facility (ISF) without a hearing was unconstitutional.

Kevin Todd Catham, a Texas state prisoner, was granted parole in 1999. In 2000, the Board held a hearing on revoking his parole. Instead of revoking the parole, the Board changed the conditions of the parole, sending Catham to an ISF. While at the ISF, Catham was involved in a fight with another ISF prisoner and received a disciplinary case. The ISF disciplinary hearing officer recommended proceeding with revocation and the Board later revoked Catham's parole without a hearing.

After arriving in prison, Catham filed a habeas corpus action under Article 11.07, Texas Code of Criminal Procedure, alleging a denial of due process by the Board's revocation of parole without a hearing. The Court agreed that the Board's interpretation of Sections 508.201 and 508.203 of the Texas Government Code to allow it to revoke paroles without a hearing ran afoul of the federal constitution and the U. S. Supreme Court's decision in Morrissey v. Brewer ...

Washington Gift Publication Ban Not Clearly Unconstitutional Before Crofton

The Ninth Circuit Court of Appeals held that prior to its opinion in Crofton v. Roe, 170 F.3d 957 (9 th Cir. 1999) it was not clearly established that prison bans on gift publications were unconstitutional.

In 1996 a federal court in Washington state issued two unpublished opinions holding that the Washington Department of Corrections (WDOC) policy banning gift publications was unconstitutional Crofton v. Ocanaz, No. CY-953142-LRS (E.D.Wash. Dec. 17, 1996), aff'd. sub nom Crofton v. Roe, 170 F.3d 957 (9 th Cir. 1999); and Crofton v. Spalding, No. CS-94-208-CI (E.D.Wash. May 14, 1996). [ PLN ,February 1998]. But WDOC officials continued to apply the rule to reject gift publications.

In June, 1997, WDOC officials rejected a complimentary copy of The Partner that was sent to Washington prisoner Ross Sorrels by Doubleday publishing company. Sorrels exhausted his administrative remedies related to the rejection and sent a letter to prison officials, advising them of the Ocanaz and Spalding decisions. Prison officials responding to Sorrels' letter "distinguished the cases and noted that the Ninth Circuit had not yet ruled on the issue."

Sorrels brought suit against prison officials, challenging the rejection of his gift publication. The ...

Louisiana Sheriff Pays $1.35 Million Settlement in Death of Diabetic Prisoner

On January 6, 2002, Orleans Parish criminal sheriff Charles Foti agreed to pay $1.35 million to settle a lawsuit filed by the family of a diabetic female prisoner who died at the parish prison in April 1999.

JoAnn Johnson, who was diabetic, was arrested in April 4, 1999 on ...

Prisoner Allowed Discovery in Mail Destruction Case

The Second Circuit court of appeals has reversed summary judgment in a case involving the destruction of legal materials in a package mailed to a prisoner to allow the prisoner discovery to determine the name of the person who received the package at the prison.

The mother of Nathaniel Jackson, a New York state prisoner, mailed Jackson a package of legal documents Jackson needed to seek state and federal post-conviction remedies. The package arrived at was received by "R. Provost," but was subsequently returned to Jackson's mother torn and mutilated, with some of the contents destroyed. Jackson filed a complaint with assistant warden William Burke. The missing documents caused Jackson to miss several filing deadlines.

Jackson filed suit against Burke and guard Ronald Provost, alleging due process, equal protection and access to courts violations due to the document destruct ion. Defendants. filed motions for summary judgment based on the fact that Ronald Provost had been assigned to a guard tower the day the package arrived at the prison, his signature differed noticeably from the one on the receipt, and Burke had begun an investigation but terminated it when Provost was transferred to another prison.

In response, Jackson admitted that ...

2003 Political Prisoner Calendar Available

As 2002 ends, the need for a calendar for the coming year becomes more apparent. Activists in Canada have published the Free Political Prisoners and Prisoners of War 2003 Calendar. The eye catching and well designed calendar is filled with slick graphics and plenty of information of leftist and nationalist political prisoners held in U.S. and Canadian prisons.

It also contains plenty of information on issues affecting all prisoners, ranging from control units, medical neglect, art and writing by prisoners, organizing by prisoners, parenting from prison, the death penalty and plenty more. It also contains commentary on the "War on Terrorism" and solidarity with liberation struggles in Palestine and elsewhere. The calendar itself was designed by New York political prisoners and long time activists David Gilbert, Herman Bell and Robert Seth Hayes.

In addition to noting politically significant events, the calendar notes Jewish, Muslim and Pagan holidays. The only drawback to this otherwise great calendar is that it does not denote U.S. state and federal holidays when courts are closed or there is no mail delivery, which is necessary to calculate court and mailing deadlines, among other things. 8-1/2 x 11 inches when folded, the calendar is ...

Fatal Overdoses: Drugs and Death in Prison

On April 27, 1997, at Ohio's Trumbull Correctional Institution, Daniel Ray Williams died by lethal injection. Williams, then 37, was not on death row; the lethal injection was a self-administered dose of heroin. Robert Baksi, a Trumbull prisoner who reportedly had a beef with Williams, had delivered a "hot shot," a syringe filled with a deadly dose of heroin, to Williams' cell. Hours after injecting the drug, Williams was dead.

Williams was but one of 188 convicts who died of drug overdoses in state prisons between 1990 and 2000 according to "On Dope Row," the title of a recent national survey published by Insight magazine. The actual number of deaths is likely far higher.

More than half of the states surveyed had no data on prisoner overdoses prior to 1995, only 40 of the 50 states provided any data at all, and data from some states was incomplete, said Timothy Maier of Insight. Alabama, for example, reported 69 prisoner deaths but labeled 52 as "unexplained." Virginia said no information was available. Maryland could not produce records prior to 1998. The District of Columbia refused to cooperate.

Fatal overdoses are caused by two broad categories of drugs: prescription medications dispensed ...

Georgia Supreme Court Bans Use of the Electric Chair

In a 4-to-3 decision, the Supreme Court of Georgia upheld a trial court and ruled that death by electrocution violated the state's constitutional protection against cruel and unusual punishment. The high court ordered that all future executions in Georgia will be carried out by lethal injection.

Considering the question of whether electrocution constituted cruel and unusual punishment, the Georgia Supreme Court heard testimony from experts who explained that there is a likelihood that Georgia's electric chair does not produce instantaneous unconsciousness. One expert asserted that although very high voltage is applied, the brain is shielded from much of the electricity by the skull. The expert further claimed that the alternating current used in electrocutions would repetitively activate the brain causing a perception of excruciating pain and a sense of extreme horror.

Another expert testified that the primary mechanism of death by electrocution is the cooking of the brain from the heat created by the passage of electricity through the brain tissue.

Noting that cruel and unusual punishment is not a static concept but instead changes with the evolving standards of decency, the court found that death by electrocution as used in Georgia since 1924 involves lingering death, bodily ...

Ex-Georgia Sheriff Convicted in Ambush Killing of Successor

Former Georgia Sheriff Sidney Dorsey was convicted on July 10 for ordering the assassination of his political rival, a man who defeated him for sheriff in the 2000 elections.

Dorsey was convicted of first-degree murder for the slaying of Sheriff-elect Derwin Brown. Brown ran against Dorsey in the 2000 elections and defeated him. However, three days before he was to take office, Brown was shot 12 times and killed by a man who popped out of the bushes lining Brown's driveway.

Dorsey, who is 62, was elected in 1996 as DeKalb County's first black sheriff. As sheriff, Brown's sole duty was to run the county's 3,700-bed jail, its $50 million budget and 750 employees. In addition to the murder charge, prosecutors also say that Dorsey ran his department to suit his personal needs, i.e., making deputies run personal errands for his private business, forcing women to submit to sex, and demanding bribes.

In fact, before being charged with Brown's murder, Dorsey was already under investigation on charges of bribery, thefts-and violation of his oath of office. In addition to being convicted of murder, Dorsey was also found guilty of 11 counts relatin gto ...

Prisoner's Medical Information Privacy Right Established in Third Circuit

by Matthew T. Clarke

The Court of Appeals for the Third Circuit has established that prisoners have a right to privacy in their medical information albeit not to the same extent as a free citizen. However, the Third Circuit dismissed the case due to qualified immunity as the right was not clearly established prior to this decision.

John Doe is the litigation alias of a former Pennsylvania state prisoner who filed suit under 42 U.S.C. § 1983 alleging that practices of the Pennsylvania Department of Corrections (DOC) caused the disclosure of his medical information in violation of his right to medical privacy under the Fourteenth Amendment and the Pennsylvania Confidentiality of HIV-Related Information Act, 35 P.S. § 7601, et seq. The district court granted the DOC medical personnel defendants' motion for summary judgment on the grounds that state prisoners have no federal constitutional right to medical information privacy. Doe appealed.

The practices Doe complained of included medical staff informing escorting guards of his HIV status when he went for sick call appointments, medical staff keeping the examining room door open during physician appointments so that guards and prisoners could hear what transpired therein, and nurses announcing his medication loudly ...

The Unmourned Death of Felony Murder by Assault in Washington

by Suzanne Lee Elliott and David B. Zuckerman

For at least 36 years, Washington has permitted defendants to be convicted of felony murder in the second degree when the underlying felony is assault. Prisoners rightly complained that this led to absurd and unfair results. Every homicide involves an assault. Why should a defendant who only meant to fight get the same sentence as one who intentionally kills? Shouldn't the first defendant be charged with manslaughter?

On October 24, 2002, the Washington State Supreme Court thoughtfully abandoned its previous precedent and declared that assault could no longer serve as a predicate for felony murder. In re Andress , #71170-4 (filed 10/24/02). The Court found that none of its prior decisions addressed the effect of the 1976 amendment to the felony murder statute.

"It is nonsensical to speak of a criminal act _ an assault _ that results in death as part of the res gestae of that same criminal act since the conduct constituting the assault and the homicide are the same."

This is great news to the hundreds of Washington prisoners serving time for felony murder based on assault. Those who still have appeals or personal restraint petitions ...

Alaska Prison Design Case Settles for $1 Million

In August, 2001, the state of Alaska settled a lawsuit involving faulty prison design which resulted in serious injury to a prisoner for $1,000,000. In February, 1994, Carry Johnson was returning to his cell at the Ketchikan Correctional Center in Alaska. When he reached the top of the ...

Washington DOC Pays $2,306.22 in Prisoner PDA Suit

On October 17, 2001, the Washington Department of Corrections ("DOC") agreed to settle a suit filed against it pursuant to Washington's Public Disclosure Act ("PDA") for $2,306.22. The PDA, like its federal counterpart the Freedom of Information Act, requires all state agencies to disclose documents requested by ...

Dismissal of Legal Mail and Retaliation Claims Reversed

by Matthew T. Clarke

The Court of Appeals for the Eighth Circuit has reversed the district court's dismissal of claims that prison officials violated a prisoner's right of access to courts and retaliated against him for litigating against them.

William R. Cody, a South Dakota state prisoner, filed suit in federal court under 42 U.S.C. § 1983 alleging that prison officials read and photocopied his privileged legal mail outside of his presence and without his permission, thus violating his Sixth Amendment right of access to courts. Cody also alleged that prison officials retaliated against him for his litigation by delaying his attorney visits, filing false disciplinary charges against him, punishing him more harshly than other prisoners for rule violations, providing defamatory information on him to a news reporter who broadcast the information, and subjecting him to deplorable conditions of confinement. The defendants filed a motion for summary judgment which the district court granted, dismissing the suit. Cody appealed.

The Eighth Circuit held that the district court erred in holding that Cody had failed to allege an injury caused by the unauthorized reading and photocopying of his legal mail and legal documents. "In his amended complaint, Cody does ...

Furniture Makers Challenge UNICOR

The Coalition for Government Procurement brought charges against the Federal Prison Industries alleging nine violations of the Administrative Procedures Act between 1991 and 1995. Legislation on this topic had been pending for several years. On August 18, 2001 the U.S. District Court for the Western District of Michigan heard the case in which the Coalition accused FPI of illegal production expansion, illegally practicing pass through" sales, and illegally forcing private sector businesses to purchase FPI furniture. Both sides brought motion for summary judgment, The Court granted summary judgment on all nine counts in favor of FPI.

FPI, established in 1934, is a government corporation that provides work programs for federal prisoners. The Coalition consists of about 300 businesses which are in some way affected by FPI. Under 18 USC § 4122, FPI is prohibited from any significant product expansion without first getting approval from the FPI Board. Then it is required to produce a written analysis on the effect expansion will have on outside industry, make their proposal known to private vendors, and invite those vendor's comments.

FPI is faced with three primary concerns. 1) They must employ the greatest number of prisoners possible; 2) they must maintain a ...

Son of Sam II Law Enacted in California

Son Of Sam II Law Enacted in California

In a legislative move designed to circumvent a recent California Supreme Court ruling holding that California's "Son of Sam" law (which prohibited prisoners from profiting from their crime stories) was unconstitutional, Senate Bill 1887 was passed and signed into law effective September 17, 2002.

The court had held in Keenan v. Superior Ct., 27 Cal.4 th 413 (2002) (PLN, 2 002) that the earlier "Son of Sam" law violated the First Amendment because its unmistakable effect was to suppress free speech.

The new law, amending §340.3 of the California Code of Civil Procedure, was described by Governor Davis as "an ingenious way of getting the same result." It permits prisoners to still write about their crimes, but extends the time period for victims to sue them for their profits to ten years after the prisoner is discharged from parole.

In Keenan, the celebrated kidnapper of Frank Sinatra, Jr. was permitted to receive hundreds of thousands of dollars from the sale of the movie rights to his crime story. Keenan's attorney, Stephen F. Rohde, agreed with Sinatra's attorney that the new extension of the statute of limitations "lacks ...

California's "Son of Sam" Law Held Unconstitutional

by John E. Dannenberg

The California Supreme Court overturned the state law confiscating a convicted felon's profits derived from any form of expressive material that recounted the exploits connected with his/her conviction. Following the U.S. Supreme Court decision in Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., (1991), 502 US 105, the California Supreme Court found the law over-inclusive to justify its purported purpose. Whereas the law's alleged purpose was to require felons to turn over such profits to their victims, its actual effect was to suppress the felons' free expression, irrespective of the benefits flowing to their victims. However, this law was not cognizable as having a legitimate governmental purpose because seizing only those assets of a felon derived from such literary expression, absent similarly attaching other assets of those same felons, necessarily had the effect of violating the First Amendment and the California Constitution.

In 1998, Frank Sinatra, Jr., son of the late singer, filed a complaint in Los Angeles Superior Court against Barry Keenan, Joseph Amsler, John Irwin, Peter Gilstrap, Columbia Pictures, Inc. and New Times, Inc., alleging that the profits from their article and movie "Snatching Sinatra" - stories ...

Washington Sex Offender Community Placement Dilemma

When "high-risk" sex offenders are released from Washington State prisons their pictures, names, addresses, and offenses are broadcast on the local news. Armed with that information, angry neighbors often drive them from the communities they're released to. With no one willing to hire them and no place to live, those offenders end up destitute and homeless - the very situation in which they are most likely to re-offend.

Since February 2000, the state Department of Corrections (DOC) has tried to remedy the problem by housing sex offenders with no other options in hotels. Their identity and location is not publicized. Of the 279 men so accommodated, none has committed another sex offense.

According to Scott Lee, a Seattle area community ectlons officer, most repeat sex offenses are committed by people who are homeless and unsupervised. Lee routinely checks an those living in hotels in the Seattle area to ensure that they are complying with curfews and other release requirements. "It's better to have them in a place where we know they're at," said Lee.

Victoria Roberts, a DOC Community Protection Unit administrator, also believes placing such offenders in hotels reduces the likelihood of re-offense. By allowing them to ...

Summary Judgment Denied on New York Medical Isolation Conditions

A New York Federal District Court has denied summary judgment on claims that a prisoner's First Amendment right to free exercise of religion was violated by heightened restrictions in medical isolation and a denial of a vegetarian diet.

As a form of protective custody, Lawrence Davis refused to give a blood sample "in order to avoid being put in the dangerous environment of the general population." Davis claimed his refusal was based on religious grounds while also admitting it was for his own protection. Davis was then restricted to a medical isolation unit for two weeks where he was subjected to 24-hour lockup, phone restrictions, and limited showers. He was also denied a vegetarian diet.

Davis filed a §1983 action against former Corrections Commissioner Bernard Kerik, several "John Doe" defendants, and the City of NY. Davis claimed his free exercise rights were violated by his medical isolation when his refusal was based on religious grounds and the guards' failure to provide a vegetarian diet required by his religion. The defendant filed for summary judgment.

The Court found that the medical isolation per se was constitutional since it was brief and reasonably related to the City's legitimate interest in ...

Florida Prisoner Sues for Contracting HIV

by David M. Reutter

Florida prisoner Richard James Randles filed simultaneous state and federal lawsuits alleging guard B.D. Hester ordered him, on three separate occasions, to clean up blood from other prisoners who had accidentally wounded themselves or attempted suicide at the Zephyrhills Correctional Institution medial/psychiatric ward. Randles requested to use the blood-spill kits containing full body protective clothing. Hester refused the request, and only provided Randles a pair of plastic or latex gloves to wear while cleaning up the blood spills. Randles claimed that prior to the incidents he tested normal for HIV and that a nurse could verify the cuts he had on his hands during the clean ups. After being exposed to HIV contaminated blood during the clean ups, Randles tested HIV positive.

The state tort action alleged that Hester's negligence was the cause of Randles' illness. The state moved for dismissal on sovereign immunity stating that Hester's actions were criminal misconduct and the state could not be held liable. The Florida Second District Court of Appeal held that under Section 768.28(9)(a), Florida Statutes, the complaint could only be dismissed if it alleged the acts were taken by the employee ...

Texas Cannot Use Enhancement to Deny Mandatory Supervision

The Court of Criminal Appeals of Texas has held that the fact that a felony has been enhanced to a higher degree felony cannot be used to deny a prisoner mandatory supervision release (MSR).

Nathaniel Elbert Coleman, a Texas state prisoner, was convicted of drug possession and retaliation, enhanced by a prior felony conviction for second degree aggravated assault, and sentenced to ten years in prison. Coleman filed a petition for a writ of habeas corpus under Article 11.07, Texas Code of Criminal Procedure, after prison officials informed him that he was not eligible for MSR. The district court entered findings showing that Coleman's 1987 conviction for second-degree aggravated assault was actually a third degree felony because the victim was not a peace officer or jailer. The Court of Criminal Appeals held that "the punishment range of that conviction had been enhanced to that for a second degree felony, but the enhancement did not change the classification of the offense itself from that of a third degree felony." Because, when the primary offenses were committed, in 1998, only first and second degree felony aggravated assaults were classified as ineligible for MSR, the Court granted relief and ordered the ...

Failure to Treat Ruptured Tendon; Qualified Immunity Denied

A federal district court in New York has denied prison officials' motion to dismiss a prisoner's complaint alleging denial of medical treatment of his ruptured Achilles tendon. While playing basketball on May 3, 1997 at Sing-Sing Correctional Facility, prisoner Saufuddin Abdul-Samad injured his ankle, was examined by a nurse, who issued temporary medical passes for a cane, shower, a medical keep lock, and in-cell passes. Two days later, a doctor diagnosed Abdul-Samad with a bruised tendon.

After the medical passes expired, Abdul-Samad continued complaining to medical staff that his ankle still hurt and requested to see a specialist. When denied, Abdul-Samad filed grievances alleging insufficient medical treatment. Two officials responded separately to the grievance. Defendant Mr. Colon replied he would assure Abdul-Samad was seen by a Doctor Halka for new medical passes, and Superintendent Mr. Grienier replied he would assure Doctor Maw re-examined Abdul-Samad's condition. Neither occurred.

On July 2, 1997 Abdul-Samad slipped on a staircase while working in the prison cafeteria, re-injuring his ankle. A. nurse, Ms. Figueroa, did not examine him or review his file, and sent him to his cell. Six days later, Abdul-Samad's Achilles tendon collapsed while walking up a staircase. Figueroa stated ...

News in Brief

California: On April 1, 2002, 30 prisoners at the Pelican Bay State Prison were involved in a riot. Eight Asian and Native American prisoners attacked 20 white prisoners. One prisoner suffered a superficial stab wound and other participants received minor injuries. The riot was halted by guards using pepper spray and tear gas. The prison was locked down for eight days after the incident.

California: On June 21, 2002, a Riverside jury convicted Russell McAllister of threatening to kill Riverside Supervising Deputy District Attorney John Davis. Davis had previously prosecuted McAllister for attempted murder, robbery and other charges to which he pleaded guilty and was sentenced to 16-1/2 years in prison. Once in prison at the Centinela State Prison in Imperial, McAllister decided he got a bad deal and began writing Davis, threatening to kill him. The conviction was McAllister's third strike offense.

California: The Jailhouse inn is a bed and breakfast housed in the former Sierra Madre jail, and was used as a jail for 50 years before closing. The Inn is owned by former California deputy attorney general Noreen Berra, now in private practice in the city. The old jail was originally Berra's office until ...

 

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Disciplinary Self-Help Litigation Manual