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Prisoner Education Guide

Prison Legal News: February, 2002

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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 is serving a sentence of a year and a day for hammering on a military aircraft while on probation for a similar action in another state.

"It took ten phone calls to the prison to get them to admit to me that he was in segregation," she says. McAlister also learned that Berrigan was being denied all phone calls and visits, even from family members. "I was not told why or for how long."

So McAlister telephoned the office of her Senator, Maryland Democrat Barbara Mikulski. Mikulski's office called the prison and, according to McAlister, was told "that Phil was put in segregation on September 11, 2001, as a direct consequence of the attacks on the World Trade Center and the Pentagon, [and] that this was done `for his protection.'"

But that explanation did not ring true. "If Philip is in segregation `for his protection,' why the punitive denial ...

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 war on civil rights and liberties as it impacts prisoners. I would like to thank Anne-Marie Cusac and The Progressive for sharing this article with PLN 's readers. Other magazines that are doing an excellent job reporting the attack on civil liberties for all citizens, especially immigrants, include The Nation, Z Magazine ,Mim Notes , and of course, The Progressive . I would encourage people interested in this topic to read these publications for general developments.

We have begun to receive responses to PLN 's reader survey. I would like to thank those who have already responded. If you have not done so yet, it isn't too late. We are very interested both in what you think of PLN and your suggestions on improving it. So far most of the respondents have been prisoners. I would like to encourage all our non-prisoner readers to respond as well, as we aim to ...

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 Corrections (CDC), blocking a criminal investigation into allegations that guards at Corcoran State Prison set up, then covered up, the rape of a prisoner.

Corcoran guards were initially investigated by the district attorney. They refused to cooperate with the district attorney, who testified about the stonewalling before the California Legislature. The CDC responded by requesting assistance from the DOJ.

Working closely with CDC, DOJ began formally investigating guards on August 20, 1998. The Corcoran warden met with CCPOA officers. He explained the conditions of the investigation and ordered officers to cooperate. CCPOA alleged that the warden threatened non-cooperating "witness" guards with administrative discipline and non-cooperating "target" guards with arrest. Twenty guards were detained that day in isolation on prison grounds until interviewed by DOJ investigators. None of the guards had prior knowledge of the subject of the investigation, and none were allowed access to counsel before or during the interviews ...

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 of Justice Statistics based on surveys of state prisons and prisoners in 2000. Some, however, question the study's results.

Associated Press writer Christopher Newton reports that University of New Mexico psychologist Roger Paine sharply criticized the accuracy of the numbers, pointing out that most prisons' screening and diagnostic procedures are inadequate. He called the study results "pure fiction." Beck acknowledged the modesty and limitations of the survey, but said that "mental illness is a significant problem for state prisons." Beck called for further study of prisoner mental health issues.

The reported numbers, however questionable, are large. Nearly 1 in 6 state prisoners is mentally ill. Approximately l in 8 state prisoners receive mental health therapy or counseling services, and about 1 in 10 receive various forms of psychotropic medications. Slightly less than 2% of State prisoners received 24-hour care in special mental health units.

The level of mental health ...

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 for waiver or deferral of fees.

A trial court denied prisoner David Curtis' motion to proceed in forma pauperis , concluding that his claims, raised in a civil action for damages, could be more properly addressed through habeas corpus.

The Court of Appeals reversed the trial court's order, finding that the court improperly considered the merits of Curtis' complaint, which had not even been deemed filed at that point. The Court held that the trial court must consider only the information related to the party's ability to pay the fees in question. See: Curtis v. Lampert , 15 P.3d 626 (Or.App. 2000).

Prisoner Frank Voth filed a motion for waiver or deferral of fees and a motion to disqualify a trial judge in connection with a civil action he sought to file. The judge that Voth moved to disqualify denied his motion for deferral of fees, without stating ...

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 are many reasons you may want to settle. One of the main reasons people settle lawsuits is to get some certainty _ no one really knows how a case will come out at trial, and settlement offers a way of controlling the outcome. Once you settle, you know what you'll get, and you know it sooner than if you go to trial. Settlement also eliminates the possibility of losing on appeal even if you win at trial. A good settlement can give you certainty and closure.

Settlement can also save the trouble and tension of going to trial. Preparing for trial, being a witness, arguing a case to a judge or jury are all time-consuming, stressful activities. If you can get something decent by settling, you can skip at least some of the hassle of litigation.

In addition, you can sometimes get something in settlement that you might not ...

$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 the prisoner.

In January of 1996, Richard Sealock, a prisoner of the Arrowhead Correctional Facility in Colorado, awoke a 1:30 a.m. heavily drenched in sweat and feeling ill. His roommate summoned a guard, Nancy French, who told Sealock there was nothing she could do because there were no medical staff on site. An hour later, French was again summoned. She now appeared with the shift commander, Sgt. Joseph Barrett, who told Sealock that it would take an hour to get the van warmed up and besides, "it was snowing outside." Barrett offered Sealock an antacid and told him "just don't die on my shift, it's too much paperwork." French gave Sealock Tylenol sometime later.

At 6:00 a.m., nurse Renee Huber examined Sealock and determined he had the flu, and that there was nothing she could do. At 8:00 a.m., PA Ray Havens ...

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 for crimes occurring between 1991 and 1996.

In 1991, Ricardo Capello entered an Alford plea to one count of first degree kidnapping with sexual motivation. As a result of this conviction, Capello is required to serve a term of community placement following his release from prison. Community placement begins either when a prisoner is transferred to community custody on his good time release date, or when he reaches his maximum release date, whichever comes first. A prisoner may not be transferred to community custody on his early release date unless the DOC approves his release plan; otherwise he or she remains incarcerated until the expiration of his maximum term.

In the present case, Capello has committed no rule infractions while in prison and, thus, has been accumulating good time credits, which have significantly shortened his sentence. However, the DOC informed Capello that he must obtain a preapproved residence location and ...

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 common in state and federal prisonsMahone was infuriated that a guard had spit in his food during the dinner shift.

Mahone complained immediately to the IMU booth guard as his anger mounted. Alone and isolated from the rest of the prison population, Mahone began to jump up and down on the middle of his bed, which was itself attached to a concrete partition. A big man at 6'1", Mahone managed to break the cell partition, and then used a piece of rebar from that partition to break out the small back and front windows of his isolation cell.

Mahone has admitted his actions, both through his lawyer and in a Washington court deposition earlier this year. And while Mahone's actions are not in dispute, the 12 days that ensued have raised renewed questions about the general treatment of prisoners in supermax isolation cells.

A lawsuit filed against the ...

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 Porter as defendants, as well as the superintendents of the prisons at Airway Heights, Clallam Bay, Shelton, Monroe, McNeil Island, Stafford Creek, Walla Walla and Purdy.

For the past several years, the Washington DOC has censored PLN subscription and book flyers and subscription renewal notices sent to Washington prisoners claiming they are "catalogs." The DOC prohibits prisoners in its custody from receiving "catalogs." This suit challenges the constitutionality of the "catalog" ban since the DOC makes no provision for prisoners to have access to book or magazine "catalogs", especially PLN 's. The Washington DOC has also refused, on several occasions; to deliver books distributed by PLN to Washington prisoners by claiming the books were not sent by a "publisher or vendor." PLN is challenging the constitutionality of the "publisher only" rule as applied to the materials shipped by PLN .

The suit also challenges the Washington DOC's practice of destroying ...

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 monies sent to prisoner accounts from outside sources. The proposed class had included prisoners and non-prisoners who sent money to prisoners. The district court did not certify the class but granted summary judgment to DOC. Plaintiffs appealed.

Minnesota Statute § 243.23, subdivision 3 (2000), authorizes DOC to make prisoners pay from their wages "or other funds in an inmate account ... expenses in the following order of priority ... (6) room and board or other costs of confinement." Effective September 1, 1999, DOC Commissioner Sheryl Ramstad Hvass ordered DOC to begin collecting 10% of all non-exempt, non-wage funds sent to DOC prisoners (exempting certain fund sources). In January 2000, three prisoners and three non-prisoners who sent money to prisoners sued DOC claiming that DOC acted beyond statutory authority in promulgating the rule and violated the Minnesota Administrative Procedures Act. Plaintiffs further claimed due process violations, illegal property takings, and an illegal differential ...

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 in the Hobbs (New Mexico) City Jail. Defendant Jorgé Condarco approached her, fondled her, took her to the laundry room and forced her to perform oral sex. Condarco subsequently pled guilty to criminal sexual penetration of Garcia.

In February 2000, Garcia filed a complaint in federal court alleging civil rights violations where, in Count III, she claimed that defendants, in violation of the FHA, discriminated against her on the basis of sex. The question before the court was whether the city jail constituted a residence or dwelling as defined by the FHA.

The FHA, 42 U.S.C. § 3601 et seq. provides that it is unlawful to discriminate against, any person in the provision of a dwelling because of sex. The FHA describes a dwelling as any building which is occupied or designed for occupancy as a residence.

On the surface, said the court, the superficial similarities between the jail ...

$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.

Christopher Furnari was sentenced in 1986 to 100 years on racketeering charges. At his initial parole hearing, the Parole Commission concluded that Furnari was a Category Eight (the highest possible) based on unproven allegations of prior homicides. This meant Furnari's next de novo parole hearing would be in 15 years. Most of these unproven allegations were made by government informants connected to the Lucchese crime family, in particular, a person named Anthony Casso.

Furnari filed a federal habeas corpus petition challenging the denial of parole. The district court found that there was a rational basis for the Commission's decision and denied relief. While the habeas corpus petition was pending, Furnari had a two year interim review of his original parole hearing where he provided the Commission with an affidavit of a deputy U.S. attorney stating that Casso was unreliable. The Commission was not persuaded.

On Appeal, the ...

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 parole conditions, Closs sought psychiatric treatment for his schizophrenia at a mental health facility. When he was prescribed psychotropic drugs he refused to take them and his parole was revoked.

Closs filed a habeas corpus petition pursuant to 28 U.S.C. § 2254. The federal district court granted the petition, finding that Closs' due process rights were violated by a revocation based on exercising his right to refuse medication and that the State's procedures, which placed heavy emphasis on parole agents, was constitutionally inadequate. See: C1oss v. Weber , 87 F.Supp.2d 921 (D.S.D. 1999).

The Court of Appeals reversed, finding first that habeas relief was not available since the revocation of conditional parole did not violate clearly established federal law nor was it an unreasonable application of federal law. The Court relied heavily on its finding that the state courts, which denied Closs' state habeas petition ...

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 hardship" under Sandin v. Connor ,515 US 472, 484 (1995), would turn on the duration and conditions of the adverse housing placement.

Connecticut state prisoner Derrick Taylor sued prison authorities under 42 U.S.C. § 1983 for putting him in indefinite "close custody" housing because of allegations regarding prison unrest and his alleged past gang affiliation. He complained that the hearing notice he was given denied his due process rights because it did not have sufficient specificity to permit him to know what he was to defend against. The charges in the hearing were based solely on uninformative language, such as: "past admission to outside law enforcement about involvement with [the] Latin Kings"; "recent tension in B-Unit involving gang activity"; and "statements by independent confidential informants."

Taylor further propounded, relying on Sandin , that his resultant placement in indefinite "close custody" housing [restrictions similar to administrative segregation] constituted "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 in 1972, alleging unconstitutional conditions in the Texas prison system (TDCJID) which has been extensively reported in PLN . The suit resulted in a 1981 consent decree, which was affirmed in part on appeal and caused sweeping changes to TDCJID. Following the enactment of the Prison Litigation Reform Act (PLRA) in 1996, the defendants filed motions to terminate relief under the immediate termination provision, 18 U.S.C. § 3626(b)(2), and twoyear termination provision, 18 U.S.C. § 3626(b)(1)(a)(iii) of the PLRA. The district court held a hearing and declared the termination provisions of the PLRA unconstitutional as violating the separation of powers doctrine by reopening final judgments of Article III courts. The district court also made an alternate finding of unconstitutional conditions in TDCJID in the areas of use of force, administrative segregation, and prisoner protection. Defendants appealed the denial of the motions to terminate ...

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 Circuit ruled that the PLRA rule on taxation of costs could not be applied retroactively to costs incurred prior to the PLRA.

John Whitfield, a New York prisoner, filed a 42 U.S.C. § 1983 lawsuit against Warden Charles Scully and others for violation of his Eighth Amendment and Due Process rights relating to two altercations with a fellow prisoner and the consequent disciplinary hearings. The suit was filed in May 1994, proceeding in forma pauperis , and was dismissed on defendants' motion for summary judgment in May 1997. Whitfield appealed, and the Second Circuit Court of Appeals affirmed. In February 1998, the appeals court taxed Whitfield $711.40 for printing costs, and in May 1998, under a local civil rule, the district court separately taxed Whitfield $595.96 for deposition costs. Treating the two taxation's as separate judgments, New York's Department of Correctional Services (DOCS) began removing 20 ...

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 convicted, however, KAR 446124(g)(6) was amended, altering the calculation of good time credits and specifically depriving Gragg of some of his good time credits.

Gragg filed a petition for habeas corpus, arguing that the application of KAR 446124(g)(6) was an ex post facto law. The trial court agreed and ordered that Gragg's release date be recalculated. Despite that order, no recalculation was completed and Gragg remained in prison until July 27, 1996, forty-seven days beyond his release date.

On April 28, 1998, Gragg filed a state court § 1983 action against prison officials for holding him beyond his release date. The trial court granted the defendants' motion to dismiss, holding that Gragg's cause of action under § 1983 was barred because an adequate state remedy for false imprisonment was available and that a false imprisonment claim must be brought within one year.

Citing Zinermon v. Burch ...

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 County Sheriff's Department (LASD) had a longstanding policy that when a prisoner at the LA County Jail reaches his/her due date for release, only then is the routine pre-release records search commenced for outstanding holds, warrants and detainers. As a result, prisoners are detained past the service of their sentences until the administrative checks are completed, often one or two days later.

Valerie Streit was among six groups of prisoners who sued Los Angeles County Sheriff Sherman Block and the County for damages in federal district court (C.D. Cal.) under § 1983, alleging defendants were liable because they had a policy of intentionally over detaining prisoners in violation of their California and United States constitutional rights.

Defendants moved unsuccessfully to have the suits dismissed because the LASD claimed it was performing a law enforcement function, not an administrative function, when checking for such holds/detainers; because the LASD ...

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 case involves a class action suit brought under 42 U.S.C. § 1983 and the Rehabilitation Act, 29 U.S.C. § 794, by HIV-positive prisoners against the Mississippi Department of Corrections (MDOC) alleging violations of their Eighth Amendment right to freedom from cruel and unusual punishment and Fourteenth Amendment rights to due process and equal protection. The prisoners alleged that, solely on the basis of medical status, MDOC failed to provide adequate medical care for HIV-positive prisoners, segregated them in inferior housing, and barred them from participation in privileges and programs available to general population prisoners.

The district court dismissed the suit under Fed.R.Civ.P. 12(b)(6) for failure to state a claim for which relief can be granted. The Fifth Circuit reversed and ordered that the district court appoint an attorney for the plaintiff class, noting that the case required experts on HIV/AIDS management in ...

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 dismiss, which the district court granted on the ADA claims and denied for the other claims. The Sheriff filed an interlocutory appeal of the denial.

Taking all of May's allegations as true, the Seventh Circuit found that the Sheriff had a policy of shackling prisoners in the hospital 24 hours a day, despite round-the-clock armed guards. The Sheriff also had a policy of restricting or denying hospital prisoners access to attorneys, visitors, legal materials, telephones, typewriters, computers, magazines, and recreational activities. The policy also banned personnel from bringing hospital prisoners to scheduled court hearings. May claimed these policies prevented him from assisting in his own defense, denied him his constitutional right of access to courts, violated his due process rights, and constituted unconstitutional unequal treatment of similarly situated prisoners.

With the district court's permission, May filed two amended complaints while the appeal was pending. As an initial matter ...

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 in his complaint the requisite improper motives as the root cause for his injury.

Donnell Jeffers, a black prisoner at California State Prison, Sacramento, was shot in the neck during a major prison disturbance on September 27, 1996, involving blacks and Hispanics. Guards Sam Bess and Margaret Yerby had both fired live rounds near Jeffers. Bess claimed he aimed only at the shoulder of one black prisoner, but believed he missed, suggesting Jeffers may have instead been hit by a ricocheting round from another shot fired simultaneously by Yerby at a Hispanic's weapon-filled hand. Noting that the instigators were Hispanic, but only Jeffers _ a black _ was shot, he also claimed improper racial motivation in violation of the Equal Protection Clause of the Fourteenth Amendment.

The U.S. District Court (E.D. Cal.) had denied summary judgment to the defendant guards, ruling that there were triable issues of ...

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 found guilty of stalking a female prison guard. He filed a 28 U.S.C. § 2254 habeas corpus petition in federal court challenging the sanction whereby he was demoted from a class I rate of earning good time credits (one day for each day served) to class II (one day of good time credit for each two days served). The disciplinary committee did not revoke any good time credits already awarded. Because Indiana offers no state court review of prison disciplinary hearings, Montgomery filed his habeas petition directly in federal court. The district court denied relief and the court of appeals affirmed.

At the outset, the court of appeals held that § 2254 is the proper remedy to challenge the change in the rate of earning good time credits because it affects the duration of a prisoner's sentence.

The court held that I.C. § 355064(a), which initially assigns prisoners ...

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 held that a claim under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, should have been dismissed with leave to amend.

Federal prisoner Kevin Razzoli was charged on July 23, 1995, with disciplinary action after a guard found cocaine and a razor blade in his cell. Razzoli received a sanction that included loss of 60 days statutory good time credit. A report on the incident was forwarded to the FBI, but no new charges were brought. After the Disciplinary Committee action, the United States Parole Commission withdrew Razzoli's recommended parole release date and established a new date twenty-four months later, based upon the same incident.

Razzoli alleged in his complaint that the Bureau of Prisons (BOP) misstated the incident. He also stated the BOP found him guilty of only possession, and that the Parole Commission found him guilty of possession with intent to distribute. Razzoli's ...

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 in Sao Paulo escaped from the prison by digging a tunnel through the prison's sewers. The prison is the biggest in Latin America, holding over 8,000 prisoners. It has escapes, riots, uprisings and massacres on a regular basis.

California: On October 10, 2001, Timothy Handel, 56, was convicted by a jury in Kern County Superior Court of trafficking heroin to give to prisoners at the Wasco State Prison where he worked as a teacher. Handel received felt tip pens in the mail from prisoners' relatives, which were filled with heroin; he then delivered the pens to the prisoners. Handel claimed he did not know the pens contained drugs, except he did expect to be paid $1,200 for his services.

California: On October 16, 2001, a fight between 135 black and Latino prisoners at the privately run Victor Valley Medium Community Correctional Facility in Adelanto, left 8 prisoners ...


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