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Prison Legal News: February, 2002

Issue PDF
Volume 13, Number 2

In this issue:

  1. You're in the Hole: A Crackdown on Dissident Prisoners (p 1)
  2. From the Editor (p 5)
  3. California Prison Guards Protected in Criminal Investigation (p 6)
  4. Mental Health Treatment in State Prisons Falls Short (p 6)
  5. Oregon Court of Appeals Vacates IFP Decisions (p 7)
  6. Pro Se Tips and Tactics (p 8)
  7. $3.54 Million Paid For Falsely Imprisoning Unconvicted Mentally-Incapacitated California Man For Two Years In New York (p 10)
  8. CCA Settles New Mexico "Failure To Protect" Suit For $41,885 (p 11)
  9. Colorado Sovereign Immunity from Prisoner Suits Upheld; Medical Claim Remanded (p 12)
  10. PLN Sues Utah Jail Over Publication Ban; Jail Settles (p 12)
  11. Washington Department of Corrections' Address Requirement Illegal (p 13)
  12. Conditions of Confinement: Washington State Prisoner Sues Over Twelve Harsh Days in Strip Cell (p 14)
  13. PLN Sues Washington DOC Over Mail Censorship - Again (p 16)
  14. Minnesota Cost-of-Confinement Surcharge Upheld (p 17)
  15. Jail Not a Dwelling Under Federal Housing Act (p 18)
  16. $2.2 Million Award for New Mexico Prison Bug Spray Injuries (p 19)
  17. Denial of Habeas Corpus Parole Challenge Reversed (p 19)
  18. Parole Revoked for Refusing Medication (p 20)
  19. Vague Confidential Information and Gang Allegations Held Insufficient to Justify Close Custody Ruling (p 20)
  20. PLRA Constitutional, Most of Ruiz Relief Terminated in Texas Suit (p 21)
  21. Second and Sixth Circuits Uphold Validity of PLRA's Taxation of Costs (p 24)
  22. Section 1983 Civil Rights Claims Not Barred by Kansas Tort Remedies (p 24)
  23. Los Angeles Sheriff's Over-Detention Policy Renders County Liable Under 42 U.S.C. Section 1983 (p 26)
  24. Order for Attorney Not to Contact Class Members Void (p 27)
  25. No Qualified Immunity for Shackling Prisoner to Hospital Bed (p 28)
  26. Qualified Immunity Granted at Summary Judgment Stage in Prison Shooting Suit (p 29)
  27. Indiana Creates Liberty Interest in Good Time Credits (p 30)
  28. Balisok Bars Privacy Act Claim (p 30)
  29. News in Brief (p 31)

You're in the Hole: A Crackdown on Dissident Prisoners

It was September 19, 2001. Elizabeth McAlister had not heard from her husband, Philip Berrigan, in more than a week. Such silence on Berrigan's part was "most unusual," she says. Convinced that something was wrong, she telephoned the Federal Correctional Institution in Elkton, Ohio, where the seventy-seven-year-old peace activist ...

From the Editor

This month's cover reports on the Bureau of Prison's (BOP) crackdown on leftist dissident prisoners in the wake of the September 11, 2001, attacks. A number of PLN subscribers, including our own columnist, Marilyn Buck, have been affected by this. We will continue to report developments in the ...

California Prison Guards Protected in Criminal Investigation

A recent case before the First Appellate District of California demonstrates the political clout of the California Correctional Peace Officers' Association (CCPOA), and the sweetheart treatment that clout buys. That clout enabled CCPOA to win a preliminary injunction against the California Department of Justice (DOJ) and the California Department of ...

Mental Health Treatment in State Prisons Falls Short

Among the 1,558 public and private state prisons and community corrections facilities, approximately 191,000 prisoners are mentally ill. Of these prisoners, about one in five does not receive necessary mental health treatment.

These numbers come from a report by Allen J. Beck and Laura Maruschak of the Bureau ...

Oregon Court of Appeals Vacates IFP Decisions

The Oregon Court of Appeals held that a trial court abused its discretion in denying a prisoner's motion to proceed in forma pauperis . In a separate opinion, the Court held that a trial judge should have ruled on a motion to disqualify himself before considering a prisoner's motion ...

Pro Se Tips and Tactics

In this column, I discuss things you might consider in trying to settle a case you have filed. As always, I assume you have filed a civil rights case in federal court, challenging as illegal some prison condition or practice that has been imposed on you.

1. Why Settle?

There ...

$3.54 Million Paid For Falsely Imprisoning Unconvicted Mentally-Incapacitated California Man For Two Years In New York

A mentally incapacitated misdemeanant detainee at the Los Angeles County, California, jail was unlawfully extradited to New York, where he was imprisoned for two years in the Green Haven Correctional Center without further legal process. During that time, his mother _ duly appointed as Conservator for his Person and Estate ...

CCA Settles New Mexico "Failure To Protect" Suit For $41,885

CCA Settles New Mexico "Failure To Protect" Suit For $41,885

In February 2001, representatives for the Corrections Corporation of America (CCA) agreed to settle a prisoner lawsuit for $41,885. Marco Lopez filed the suit in a federal district court in Albuquerque, New Mexico, after he was beaten by ...

Colorado Sovereign Immunity from Prisoner Suits Upheld; Medical Claim Remanded

The Tenth Circuit Court of Appeals has upheld a Colorado statute which excludes from waiver of state sovereign immunity those actions brought by prisoners. The Court also reversed summary judgment for a guard who delayed medical treatment for a heart attack, and for the Physician's Assistant (PA) who treated ...

PLN Sues Utah Jail Over Publication Ban; Jail Settles

In September 2001, Prison Legal News sued the Millard County jail in Utah over its policy of prohibiting jail prisoners from receiving or subscribing to newspapers or magazines, including PLN . The jail censors all publications sent to prisoners.

Due to overcrowding in the Utah prison system, state prisoners are frequently ...

Washington Department of Corrections' Address Requirement Illegal

The Washington Court of Appeals has held that the Washington Department of Corrections (DOC) lacks statutory authority to require a prisoner to obtain a preapproved residence location and living arrangement prior to release unless that condition was imposed by the sentencing court. However, this ruling only applies to prisoners sentenced ...

Conditions of Confinement: Washington State Prisoner Sues Over Twelve Harsh Days in Strip Cell

In the early morning hours of February 2, 1998, at Clallam Bay Correctional Center (CBCC), Washington State prisoner Sylvester Mahone felt like he had had enough. Locked up in isolation in one of Washington State's six Intensive Management Units (IMUs)the kind of bare-bones, supermax concrete isolation cells increasingly ...

PLN Sues Washington DOC Over Mail Censorship - Again

On November 27, 2001, Prison Legal News sued Washington Department of Corrections (DOC) officials across the state for its policies and practices of censoring mail items sent by PLN to Washington state prisoners. The suit names DOC Secretary Joseph Lehman, Deputy Secretary Eldon Vail, regional administrators Jim Blodgett and Carol ...

Minnesota Cost-of-Confinement Surcharge Upheld

The Court of Appeals of Minnesota has upheld a surcharge imposed on prisoners in custody of the Minnesota Department of Corrections (DOC). The case had been filed as a class-action suit in a Minnesota district court challenging a DOC rule imposing a 10% cost-of-confinement surcharge, subject to specific exemptions, on ...

Jail Not a Dwelling Under Federal Housing Act

A federal district court in New Mexico ruled that a city jail is not a dwelling for purposes of the Fair Housing Act (FHA) and granted defendants' motion for dismissal of plaintiff's claim of sexual discrimination in the provision of housing.

In June 1998, plaintiff Soma Garcia was confined ...

$2.2 Million Award for New Mexico Prison Bug Spray Injuries

The Third Circuit Court of Appeals has reversed the denial of a habeas corpus petition which challenged the federal Parole Commission's denial of parole with a 15_year setback. The Court, however, did not order a new hearing but only that the Parole Commission provide a new statement of reasons ...

Denial of Habeas Corpus Parole Challenge Reversed

The Third Circuit Court of Appeals has reversed the denial of a habeas corpus petition which challenged the federal Parole Commission's denial of parole with a 15_year setback. The Court, however, did not order a new hearing but only that the Parole Commission provide a new statement of reasons ...

Parole Revoked for Refusing Medication

The Eighth Circuit Court of Appeals has held that parole can be revoked if the parolee refuses medication as part of an agreed mental health treatment plan.

Randy Closs, who has a long-term diagnosis of schizophrenia, was granted conditional parole from the South Dakota State Penitentiary. As part of his ...

Vague Confidential Information and Gang Allegations Held Insufficient to Justify Close Custody Ruling

Connecticut prison authorities' non-specific allegations regarding "past gang affiliation" and "vague [confidential] information" were found to be insufficient to provide due process to inform the basis for an adverse administrative housing hearing, the Second Circuit US Court of Appeals held. It further held that a finding of "atypical and significant ...

PLRA Constitutional, Most of Ruiz Relief Terminated in Texas Suit

The Fifth Circuit Court of Appeals has upheld the constitutionality of the termination provisions of the PLRA, 18 U.S.C. § 3626. On remand, the district court terminated most of the relief previously ordered in the Ruiz case.

This involves a classaction lawsuit brought under 42 U.S.C. § 1983 ...

Second and Sixth Circuits Uphold Validity of PLRA's Taxation of Costs

Two recent appellate decisions from the Second and Sixth Federal Circuits have upheld the validity of the PLRA's taxation of costs against unsuccessful prisoner litigants, 28 U.S.C. §1915(f). The Second Circuit ruled that taxation of costs could be stacked on top of one another. The Sixth ...

Section 1983 Civil Rights Claims Not Barred by Kansas Tort Remedies

The Kansas Court of Appeals held that the existence of adequate state tort remedies did not bar claims under 42 U.S.C. § 1983, and that the limitation period for § 1983 claims is two years.

Kansas prisoner James Gragg was entitled to release on April 28, 1996. After he was ...

Los Angeles Sheriff's Over-Detention Policy Renders County Liable Under 42 U.S.C. Section 1983

The Ninth Circuit U.S. Court of Appeals held that Los Angeles County Jail prisoners who were kept beyond their release dates for the purpose of awaiting the completion of records searches for any outstanding warrants or detainers could sue for money damages under 42 USC § 1983.

The Los Angeles ...

Order for Attorney Not to Contact Class Members Void

The Fifth Circuit Court of Appeals has invalidated an order by a district court for ACLU National Prison Project (NPP) lawyers not to contact class members in a suit brought by Mississippi state prisoners. The Fifth Circuit also ordered substitution of counsel and vacated an order denying attorneys' fees.

This ...

No Qualified Immunity for Shackling Prisoner to Hospital Bed

Gregory May, a Cook County, Illinois, prisoner, filed a suit against the Sheriff and Sheriff's Department officials under 42 U.S.C. § 1983, alleging their treatment of prisoners taken to Cook County Hospital is unconstitutional and violates the Americans with Disabilities Act (ADA). The Sheriff filed a motion to ...

Qualified Immunity Granted at Summary Judgment Stage in Prison Shooting Suit

The Ninth Circuit U.S. Court of Appeals held that California prison guards who shot one prisoner in the neck during a yard riot, while allegedly aiming at another prisoner, were entitled to qualified immunity from Eighth Amendment based civil liability claims because the wounded prisoner failed to factually establish ...

Indiana Creates Liberty Interest in Good Time Credits

The Court of Appeals for the Seventh circuit held that Indiana prisoners have a state created liberty interest in their good time credits, and the rate of earning such credits, requiring due process before the credits or classification could be changed.

Jerry Montgomery, an Indiana state prisoner, was infracted and ...

Balisok Bars Privacy Act Claim

The U.S. Court of Appeals for the District of Columbia has held that a prisoner must succeed on habeas corpus before suing under the Privacy Act (PA), 5 U.S.C. § 552(a), if the suit would undermine a disciplinary change against the prisoner if successful. The Court also ...

News in Brief

Alabama: On October 3, 2001, Teresa Wheeler, 24, collapsed and died while taking a physical training course to become a Department of Corrections guard. Wheeler had previously failed the physical exam but was trying to pass it again.

Brazil: On November 26, 2001, over 100 prisoners at the Carandiru prison ...