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Prisoner Education Guide

Prison Legal News: March, 2002

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Volume 13, Number 3

In this issue:

  1. Idaho's Prison Labor Scandal (p 1)
  2. Stun Gun, Four-Point Restraint Use Curtailed in Virginia Prisons (p 4)
  3. From the Editor (p 5)
  4. Washington DOC Settles Wrongful Death Suit for $245,000 (p 6)
  5. BOP Settles Prisoner Beating/Restraint Lawsuit for $99,000 (p 7)
  6. Puerto Rico Prison Officials Fined $10 Million (p 8)
  7. Res Judicata Dismissal of Texas Prisoner's Suit Reversed (p 8)
  8. Third Circuit Holds PLRA Bars Claims for Compensatory Damages (p 9)
  9. Hitching Post Unconstitutional (p 10)
  10. Claims Dismissed in First Challenge to BOP Communications Ban (p 11)
  11. Prison Coffee and Games: Starbucks and Nintendo Admit Their Contractor Uses Prison Labor (p 12)
  12. No Qualified Immunity for Prison Officials Who Upheld Grievance (p 13)
  13. Recent Significant Decisions (p 14)
  14. Qualified Immunity Upheld for Probation Officer in HIV Privacy Action (p 17)
  15. State Prisons Abrogate Attorney-Client Mail Privilege (p 18)
  16. Equitable Tolling May Apply to Administrative Exhaustion (p 19)
  17. Pennsylvania's Released Felons Granted Right to Register to Vote (p 19)
  18. The Cost of Medical Neglect in Washington Prisons (p 20)
  19. $225,000 Paid in Mentally Ill Prisoner's Death (p 20)
  20. $630,000 Plus Paid in Ulcer Related Death (p 20)
  21. $180,000 for Loss of Vision in Left Eye (p 21)
  22. $25,000 Paid for Misdiagnosed Blood Clot (p 21)
  23. $62,000 in Slip and Fall/Medical Neglect/Retaliation Case (p 21)
  24. $100,000 for Brain Damaged Prisoner (p 21)
  25. $40,000 for Achilles Tendon Injury (p 21)
  26. $6,000 for Amputated Ring Finger (p 22)
  27. $5,000 Paid for Failure to Treat Iritis (p 22)
  28. $8,500 for Surgical Mishap (p 22)
  29. $13,500 for Ruptured Appendix (p 22)
  30. $15,000 in Allergy/Retaliation Suit (p 22)
  31. $250 for Providing Wrong Medication (p 23)
  32. $5,000 for Severed Tendon (p 23)
  33. $1,500 Paid for Failure to Provide Pain Medication (p 23)
  34. $1,500 for Refusal to Treat HIV Positive Cancer Patient (p 23)
  35. $1,500 for Failure to Assist Disabled Prisoner (p 23)
  36. $1,000 for Unnecessary Appendectomy (p 23)
  37. $250 for Lack of Aftercare Following Stroke (p 23)
  38. $200 for Providing Wrong Medication (p 23)
  39. Inadequate Dental Care Results in Settlement (p 23)
  40. Washington DOC Virtually Uninsurable (p 24)
  41. New Retaliation Standard Defined (p 25)
  42. Pro Se Appellants Must Cite Authority (p 25)
  43. NCIA Report Finds Prison Race Statistics Distorted (p 26)
  44. New York Court Limits "Son of Sam" Law (p 27)
  45. New York Expands "Son of Sam" Law Giving Crime Victims More "Clout" (p 27)
  46. PLN Awarded $58,059 in Attorneys' Fees in Oregon Bulk Mail Suit; PLRA Doesn't Apply, Injunction Entered (p 28)
  47. New York Failure to Protect Claim Set for Trial: Bilingual Counsel Appointed (p 29)
  48. Sixth Circuit Finds Ohio Response to Jewish Prisoner's Hair 'Exaggerated' (p 30)
  49. Ohio Appeals Court Allows Prisoner's Request for Past Work Information on Guards (p 31)
  50. Arizona Prisoner Adequately Pleaded Section 1983 Claim (p 31)
  51. News in Brief (p 32)

Idaho's Prison Labor Scandal

by Silja J.A. Talvi

Over the past decade, Idaho's state prison system has been rocked by a steady stream of scandals ranging from the sexual abuse of prisoners to the violation of prisoners' First Amendment rights.

But nothing has shaken the Idaho Department of Correction (IDOC) as hard as a recent investigation by the state's Office of the Attorney General, focused on a wide-scale prison labor scandal that involved furniture theft, drug and tobacco smuggling, and the firings or forced resignations of IDOC employees who questioned ongoing practices in the state's for-profit prisoner work program, Correctional Industries.

Idaho's Correctional Industries (CI) puts over 400 prisoners to work in printing, metalwork, furniture and license plate manufacture. Like most prison labor programs across the nation, Idaho's CI claims to be self-sustaining and runs on profits from sales of prisoner-produced goods and services to other state agencies and private businesses.

The extensive 22-month investigation by the state's Attorney General's office, which was made public last March, looked into widespread mismanagement and corruption in the Correctional Industries (CI) program. The investigation prompted the resignations of IDOC Director James Spalding as well as the head administrator of ...

Stun Gun, Four-Point Restraint Use Curtailed in Virginia Prisons

Because Connecticut's prisons were overfull, Lawrence Frazier was sent to Virginia to serve his time. He didn't go home alive. He died in a Richmond hospital of cardiac arrhythmia after prison guards repeatedly shocked him with an Ultron II stun gun and shackled him to a steel table.

Frazier, 50, was one of about 500 Connecticut prisoners being held under contract in Virginia's notoriously inhumane prisons. In June 2000, Frazier was involved in a disturbance at Wallens Ridge prison. He was subdued by guards using the hand-held Ultron II, a device capable of delivering a 50,000 volt charge. Immediately thereafter, he was fastened to a steel table using five-point restraints. He then lost consciousness and lapsed into a coma. Frazier died 5 days later. The Virginia Department of Corrections (DOC) would not disclose how many times Frazier was shocked.

An autopsy found that Frazier died of "natural causes" but left open the possibility that the stun gun and five-point restraints contributed to his death.

A consultant hired by the DOC found, not unexpectedly, that the Ultron II played no role in Frazier's death. Dan Kaufman, speaking on behalf of Electronic Defense Technology, the Cleveland-based manufacturer ...

From the Editor

March 31, 2002, marks the final date for PLN to raise $15,000 for its matching grant fundraiser campaign .As we go to press, we have raised $10,852, which is still way short of our goal . PLN desperately needs these funds to continue operating .If you have not yet made a donation, please take this opportunity to do so . PLN urgently needs your support more than ever .We will announce the final results in the May 2002, issue of PLN .

So far, more than 500 people have responded to PLN 's reader survey with a variety of comments and suggestions .We will tabulate the results and report them in the May 2002 issue of PLN as well .Some readers have asked how to submit news and information about events in their state .To do so, simply send PLN news clippings (include the date and source on each clipping) to PLN 's Seattle address .That's all there is to it .Readers interested in submitting articles should first review PLN 's writer guidelines by either downloading it from PLN 's website or sending us an SASE requesting it.

A frequent request from the survey is for pen pal services and ...

Washington DOC Settles Wrongful Death Suit for $245,000

Washington DOC Settles Wrongful Death Suit For $245,000

In February 2001, Washington prison officials agreed to settle a $2.9 million wrongful death suit for $245,000 in costs, damages, and attorneys' fees. The lawsuit was brought in state court by a prisoner's mother, Sharon Corner, after her ...

BOP Settles Prisoner Beating/Restraint Lawsuit for $99,000

BOP Settles Prisoner Beating/Restraint Lawsuit For $99,000

In the summer of 1997, Lealon Muldrow was incarcerated in the Special Housing Unit (SHU) of the United States Penitentiary (USP) at Atlanta .On July 1 of that year, Muldrow was threatened with being chained down because the other prisoner in ...

Puerto Rico Prison Officials Fined $10 Million

A federal court in Puerto Rico held prison officials in contempt for failing to comply with court orders governing prison conditions and imposed a contempt sanction of $10 million.

More than 20 years ago the court first dealt with prison overcrowding in Puerto Rico prisons by issuing a preliminary injunction in Feliciano v. Barcelo , 497 F.Supp. 14 (D.P.R. 1979). In the ensuing years, the issue came back before the court on at least four occasions because prison officials failed to comply with court orders to correct unconstitutional prison conditions.

Most recently, the case was before the court on plaintiffs' 1998 contempt motion, based upon defendants' violation of court orders concerning the usage of admission cells.

Admission cells lack many of the features that make housing units habitable. They generally lack toilets, beds, bathing or washing facilities, drinking fountains and are usually located in areas where programming and recreational activities are unavailable. The court found that up to 23 prisoners were held in cells with a 9 man capacity. Prisoners "were often compelled to take turns sleeping, or to sleep sitting up because there was not enough room to lay down. They slept on the floor and were ...

Res Judicata Dismissal of Texas Prisoner's Suit Reversed

by Matthew T. Clarke

A Texas court of appeals has reversed the district court's res judicata based dismissal of a Texas state prisoner's personal injury suit chastising the lower court for using an improper procedure.

Steven W. Howell, a Texas state prisoner, brought suit against the Texas Department of Criminal Justice and prison employees (TDCJ) alleging they negligently designed and constructed a bathroom area of the prison, creating a hazardous condition that caused him to slip, fall, and break his wrist. He alleged that the same defect caused similar injuries to fifteen to twenty other prisoners prior to his injury occurring.

In his complaint, Howell mentioned that he had previously filed a similar claim in federal district court and it had been dismissed for failure to state a claim upon which relief could be granted. Three days after it was filed, and without having served the defendants, the district court dismissed on "res judicata" grounds. Howell appealed.

The court of appeals held that the district court erred in a number of ways. First, it employed a procedure set forth in Section 14.003 of the Texas Civil Practice and Remedies Code for a dismissal based on res judicata ...

Third Circuit Holds PLRA Bars Claims for Compensatory Damages

Third Circuit Holds PLRA Bars Claims For Compensatory Damages

by Matthew T. Clarke

The Third Circuit Court of Appeals has held that although the Prison Litigation Reform Act (PLRA) barred a prisoner from recovering compensatory damages for violations of his right to religious expression, he may recover nominal and punitive damages.

Michael Malik Allah, a Pennsylvania state prisoner, filed a civil rights suit under 42 U.S.C. § 1983, alleging William W. Ennis, the prison chaplain, and Humza AlHafeez, an outside minister appointed by Ennis, infringed on his right to free exercise of his religious beliefs while he was incarcerated at SCI Frackville. Allah, a follower of the Nation of Islam (NOI), alleged that AlHafeez is not a member of NOI and promotes teachings which contradict the teachings of Elijah Muhammad, the founder of NOI.

Three months after filing the suit Allah was transferred to SCI Greene. The defendants then filed a motion for judgment on the pleadings alleging that the transfer mooted Allah's request for injunctive relief and that a section of the PLRA, 42 U.S.C. 1997e(e), barred his claims for damages. The district court granted the motion and dismissed the case. Allah appealed.

In ...

Hitching Post Unconstitutional

The Court of Appeals for the Eleventh Circuit has held that handcuffing a prisoner to a hitching post for prolonged periods violates the Eighth Amendment, but granted guards qualified immunity. Alabama prisoner Larry Hope was assigned to the chain gang at Limestone Correctional Facility (Limestone) in 1995 .On two occasions he was handcuffed to a "restraining bar" or "rail," known as the hitching post.

The first time, Hope was hitched because of a verbal altercation with another prisoner .After two hours Hope was released .During that period he was offered water and a bathroom break, every fifteen minutes .The second time, Hope was involved in a physical altercation with a guard .There is a dispute about who started the fight, but Hope stated one of the guards began choking him because he fell asleep on the bus en route to the work site, and did not exit promptly with other prisoners .Hope was taken back to Limestone and hitched to the post without a shirt for seven hours .During this period Hope was given water once or twice and no bathroom breaks.

To establish an Eighth Amendment claim a prisoner must prove a subjective violation, as well as an objective ...

Claims Dismissed in First Challenge to BOP Communications Ban

by Matthew T .Clarke

The Tenth Circuit Court of Appeals has ordered the claims in the first published challenge to the implementation of Special Administrative Measures (SAMs) by the federal Bureau of Prisons (BOP) dismissed without prejudice for failure to exhaust administrative remedies.

Ramzi Ahmed Yousef, a federal prisoner at the ADX in Florence, Colorado, filed a Bivens action against various government officials alleging that his placement under SAMs violated: the constitutional prohibition against cruel and unusual punishment; his rights to due process, counsel, freedom of speech, and to freely exercise his religion, and sought declaratory and injunctive relief and monetary damages .Yousef was convicted of conspiracy in the 1993 bombing of the World Trade Center and attempts to bomb various U.S.-flagged commercial aircraft .This case was decided prior to the destruction of the World Trade Center on 9-11-01 .Due to Yousef's association with terrorist activities, the Bureau of Prisons (BOP) implemented SAMs restricting Yousef's access to mail, telephone, media, and visitors and limited his carrying of religious materials, recreation and exercise time.

Yousef filed formal and informal applications seeking review of the SAMs .They were denied .He then filed suit in federal district court .The ...

Prison Coffee and Games: Starbucks and Nintendo Admit Their Contractor Uses Prison Labor

by Erica C .Barnett

Most people assume that prisoners, especially those convicted of felonies like rape and murder, spend their days stamping license plates, making furniture for state offices, and digging ditches along state highways for 25 or 30 cents an hour .So it may seem a bit odd that Steven Strauss, until last August a prisoner at the Twin Rivers Corrections Unit in Monroe, Washington, says he spent his last Christmas holiday packaging brightly colored bags of chocolate-covered Starbucks coffee beans and Nintendo Game Boy systems that would end up under Christmas trees across the country .

Twin Rivers, part of a four-unit prison that houses mentally ill prisoners, high- security felons, and participants in the state's Sex Offender Treatment Program, is also home to one of three facilities operated by Signature Packaging Solutions, one of 15 private companies that operate within the state prison system and use prisoner labor to supplement their outside workforce ."The majority of the workers are hired for big jobs, which come around holiday times," says Strauss, who was sent to Twin Rivers in 1997 on drug and firearm charges ."We used to [package] all Starbucks' coffee for the holidays .With Nintendo, we would ...

No Qualified Immunity for Prison Officials Who Upheld Grievance

In a scathing opinion written in the first person, Elaine Bucklo, a federal judge in Illinois, handed down a potentially far-reaching ruling which favored a prisoner complaining of inadequate medical care, denied qualified immunity to prison medical workers, and found personal involvement by prison administrators who denied the prisoner's grievance.

Glenn Verser, a prisoner at Stateville Correctional Center in Illinois, injured his knee while playing basketball. Later, in extreme pain, Verser was examined by a physical therapist who taped his knee, ordered a knee brace, and prescribed physical therapy three times a week. Dr. Willard Elyea, formerly medical director at Stateville prison, denied the knee brace, approved the physical therapy regimen, but did not examine Verser.

Verser was unable to complete the course of physical therapy because he did not receive the needed passes. When he asked physical therapist Hazel Lovett why he was not receiving the passes, she answered that she did not feel like sending them. "The state owes you [prisoners] nothing," she said. A month later, Verser fell down a flight of stairs, an event that he attributes to his ailing knee.

Verser filed a grievance complaining of inadequate medical care. Judy Welsh, the prison grievance ...

Recent Significant Decisions

by Walter M .Reaves, Jr.

The following is a summary of some of the more significant recent decisions on issues important to prisoners.

Search and Seizure

InUnited States v. Osage, 235 F.
3d 518 (10th Cir. 2000), the Court addressed the scope of a consent to search .The Court held that a consent to search does not extend to a container which would have to be destroyed or rendered useless to effect the search .Here, the defendant gave consent to search his luggage .Inside, they found cans labeled "tamales and gravy" .Opening those cans, they found narcotics .The Court found the officers exceeded the scope of the consent, which did not extend to destroying items.

Habeas Corpus

The Supreme Court recently resolved a split in authority in Duncan v. Walker, 121 S. Ct. 2120 (2001) .The issue was whether a prior federal habeas petition tolled the limitations period .The defendant initially filed a habeas petition before filing in state Court .The petition was dismissed and a state petition was filed .Clearly, the filing of a state petition tolls the limitations period .The question is whether the filing of a federal petition did the same .The Court held it did not ...

Qualified Immunity Upheld for Probation Officer in HIV Privacy Action

The Court of Appeals for the Tenth Circuit has found that there is a right to privacy in non-disclosure of HIV status by government employees but granted qualified immunity to a probation officer since the law was not clearly established when the disclosure was made.

In 1993, Frederick Herring was placed on federal probation and Kathleen Keenan was assigned as his probation officer .During their initial meeting, Herring disclosed to Kennan that he had tested for HIV and thought it might be positive, but did not yet know nor did he ever inform Keenan of the actual results .Herring did not authorize Kennan to disclose this information to anyone else, yet Kennan took it upon herself to twice inform Herring's employers, repeatedly recommending then demanding his termination, and to inform his sister who was unaware that Herring had even been tested.

Herring filed a Bivens claim in 1995 but died a year later; his sister continued the suit .Herring claimed that the HIV disclosure violated his constitutional right to privacy, constituted cruel and unusual punishment, and was a violation of his due process rights .Keenan moved to dismiss based on qualified immunity which the district court rejected for Herring ...

State Prisons Abrogate Attorney-Client Mail Privilege

Just as the federal government has seized on the events of September 11, 2001, to push for a long list of previously desired powers and restrictions on civil liberties, state prison systems have done the same. Several states, including Massachusetts, Virginia, New Jersey, Vermont and Michigan, have enacted rules or policies, which eliminate the right to confidential attorney client correspondence. The general practice, since the U.S. Supreme Court's 1974 decision in Wolff v. McDonnell , 94 S. Ct. 2963 (1974), has been for prison employees to open legal mail from courts and attorneys in the presence of the prisoner to assure the prisoner it has not been opened or read. Likewise, outgoing mail to lawyers and courts is inspected and sealed in the prisoner's presence before it is mailed out.

On October 24, 2001, Michael Maloney, commissioner of the Massachusetts Department of Corrections (DOC), announced that he was suspending 103 CMR 481.12 (2001), a rule which requires that mail from attorneys be opened in the prisoner addressee's presence, and which prohibits the opening of outgoing legal mail unless a fluoroscopic exam revealed the presence of contraband. The purported basis for the policy change is "recent world ...

Equitable Tolling May Apply to Administrative Exhaustion

The Arizona Court of Appeals reversed a trial court's grant of summary judgment against a prisoner for failure to file a tort claim notice with the Attorney General's office within 180 days of his injury as required by ARS § 12821.01(A).

On July 7, 1997, Arizona prisoner John Kosman was injured when a chair collapsed. He filed a letter on July 9, 1997, a grievance on July 21, 1997, and grievance appeals on July 30, 1997, and September 4, 1997, all of which described his alleged injury and requested equitable and monetary relief.

Kosman's final grievance appeal was denied October 6, 1997, and on March 17, 1998, he filed a notice of claim with the Arizona Attorney General, describing the accident, claiming permanent injury and demanding $250,000. His notice was sent 253 days after the accident and 162 days after the final denial of his grievance.

Kosman filed suit in Superior Court. The trial court granted the state's motion to dismiss two claims and later granted the states motion for summary judgment on the final claim for Kosman's failure to file his claim notice within 180 days of his injury.

On appeal, Kosman ...

Pennsylvania's Released Felons Granted Right to Register to Vote

An intermediate court of appeals in Pennsylvania struck down a voter registration law that prohibited convicted felons from voting for 5 years after their release from prison.

Lorenzo Mixon and five present and former prisoners filed a lawsuit challenging Pennsylvania law that restricted felons' voting rights. Presiding Judge Joseph Doyle of the Commonwealth Court sitting en banc ruled there was "no rational basis to preclude the registration of those who have been incarcerated within the last 5 years." The problem with the law, said the court, was that only those felons who were not registered to vote when they entered prison lost their voting rights when they were released; those who were previously registered did not.

The court's ruling was not a total victory for the prisoners. Under Pennsylvania law, incarcerated felons still may not vote, nor may they register to vote.

In denying voting privileges to incarcerated felons, the court held that a state has a valid interest in ensuring that the rules of society are made by those who have not shown an unwillingness to abide by those rules.

In denying incarcerated prisoners the privilege of registering to vote, the court said state law allowed only qualified ...

The Cost of Medical Neglect in Washington Prisons

By Sam Rutherford

The case, Corner v. State of Washington , [see page 6] is only one of many medical neglect suits that the Washington Department of Corrections (DOC) has settled. In fact, below is a comprehensive list of the medical neglect cases filed by prisoners that the DOC settled between 1994 and 2000. This compilation is the result of a lengthy PLN investigation, and reveals that medical care in Washington prisons, like those in many other states, is at best totally inadequate.

PLN is publishing this information for several reasons, beyond the fact that it shows the DOC's unwillingness to provide meaningful health care to prisoners. First, the settlements demonstrate what the DOC is willing to pay when prisoners are harmed through its medical neglect. Litigants should use this information as a benchmark by which to compare any offer made by the Attorney General's office during settlement negotiations.

Second, the settlements below clearly demonstrate that medical neglect suits against the DOC can result in significant damage awards and attorneys' fees. Contrary to popular belief among the personal injury bar, prison medical suits do in fact pay and sometimes even pay big. This information can be used by pro ...

$225,000 Paid in Mentally Ill Prisoner's Death

$225,000 paid in mentally ill prisoner's death

In 1991, John E. Rickert was placed in the DOC's custody to serve a sentence upon conviction of a crime. Mr. Rickert was suffering from an unspecified mental illness at the time of his incarceration, of which the DOC was ...

$630,000 Plus Paid in Ulcer Related Death

$630,000 plus paid in ulcer related death

On May 16, 1994, Gertrude Barrow, 41, died at the Washington Corrections Center for Women (WCCW) of a perforated chronic peptic ulcer and acute peritonitis. She was just three months short of her release date.

At the time of her incarceration in ...

$180,000 for Loss of Vision in Left Eye

$180,000 for loss of vision in left eye

On May 17, 1995, Joseph Johnson was incarcerated in the Spokane County Jail. That evening a fight broke out between two prisoners, and Mr. Johnson assisted jailers in quelling the disturbance. In the process of breaking up the fight, Mr. Johnson ...

$25,000 Paid for Misdiagnosed Blood Clot

$25,000 paid for misdiagnosed blood clot

In January of 1996, Valerie Bartlett was sent to the WCCW to serve a short prison sentence. Upon arrival, she complained of swollen legs and feet, general fatigue, and chest pains. These symptoms persisted and Ms. Bartlett continued to seek medical attention, but ...

$62,000 in Slip and Fall/Medical Neglect/Retaliation Case

$62,000 in slip and fall/medical neglect/retaliation case

Karen Posey was incarcerated at the WCCW on April 25, 1996. During her medical intake, Ms. Posey informed clinic staff that she had a large screw in the front of her foot that made it difficult for her to climb ...

$100,000 for Brain Damaged Prisoner

$100,000 for brain damaged prisoner

In the Winter of 1966, Lawrence Jordan was a prisoner at the Washington State Reformatory (WSR) in Monroe, Washington. On March 7 of that year, Mr. Jordan submitted to eye muscle surgery by the WSR ophthalmologist. He was placed under general anesthesia and subsequently ...

$40,000 for Achilles Tendon Injury

$40,000 for Achilles tendon injury

On August 21, 1993, while incarcerated at the Coyote Ridge Corrections Center (CRCC) in Connell, Washington, Richard Yamamoto suffered a severe injury to his right Achilles tendon. The nature, extent, and severity of the injury was misdiagnosed and mistreated by CRCC medical staff. As ...

$6,000 for Amputated Ring Finger

$6,000 for amputated ring finger

In the Summer of 1993, Donnie Hayes was confined at the McNeil Island Corrections Center (MICC), near Steilacoom, Washington. He was assigned to work in the MICC kitchen.

On July 21 of that year, MICC kitchen staff instructed Mr. Hayes and six other prisoners ...

$5,000 Paid for Failure to Treat Iritis

$5,000 paid for failure to treat iritis

While incarcerated at the WSP in 1993, Terry Miller contracted iritis in his right eye. The eye was extremely swollen, red and painful when he reported to the clinic on May 4, 1993. Despite the obviousness of the problem, medical staff did ...

$8,500 for Surgical Mishap

$8,500 for surgical mishap

In March of 1995, Jerry Thomas, a prisoner at the Clallam Bay Corrections Center (CBCC), near Port Angeles, Washington, injured his right hand. CBCC medical staff determined that surgery was warranted, and Mr. Thomas was subsequently transported to the Olympic Memorial Hospital to undergo the ...

$13,500 for Ruptured Appendix

$13,500 for ruptured appendix

In the early morning hours of October 28, 1995, Arnold Kitchen awoke in his cell at the Airway Heights Corrections Center (AHCC), near Spokane, Washington, in excruciating pain. His symptoms included severe abdominal pain of a sudden onset and vomiting of a "brownish/green mushy ...

$15,000 in Allergy/Retaliation Suit

$15,000 in allergy/retaliation suit

Between October of 1994 and August of 1995, Ricardo Bowman was confined at WSR. Mr. Bowman repeatedly complained of severe allergic reactions to dust, dust mites, and certain foods. These reactions caused pain and swelling in his eye, head, neck, and shoulder.

Despite his ...

$250 for Providing Wrong Medication

$250 for providing wrong medication

On August 8, 1997, Michael Clarke reported to the WSP pill line to obtain medication for his broken tooth. Nurse Dufner gave Mr. Clarke two small pills and some white cream to apply directly on the injured tooth. Immediately following application of the creamy substance ...

$5,000 for Severed Tendon

$5,000 for severed tendon

On April 5, 1993, a Physician's Assistant at the WSP severed a tendon in Walter Mathis' left thumb. This injury resulted in the loss of ability to extend the thumb, and required surgery to attempt correction of the problem. Even after the surgery, Mr ...

$1,500 Paid for Failure to Provide Pain Medication

$1,500 paid for failure to provide pain medication

On July 7, 1993, Leonard Willis dropped a 65-pound weight on his left ring finger while incarcerated at the CRCC. The injury was extraordinarily painful, and Mr. Willis immediately sought medical attention. Although he pleaded for adequate pain medication and proper ...

$1,500 for Refusal to Treat HIV Positive Cancer Patient

$1,500 for refusal to treat HIV positive cancer patient

In 1996, Samuel Page was confined at the WSP. Mr. Page is HIV positive and had cancer. When he sought treatment for his condition, Dr. Alfred Marur, the contract physician for the WSP, refused to address Mr. Page's medical ...

$1,500 for Failure to Assist Disabled Prisoner

$1,500 for failure to assist disabled prisoner

In 1999, Ronald Christner was confined at the AHCC. Mr. Christner is disabled and requires assistance in attending to his personal hygiene needs. On August 8, Mr. Christner was given a bath by AHCC nursing staff. Although he was supposed to be ...

$1,000 for Unnecessary Appendectomy

$1,000 for unnecessary appendectomy

In May through June of 1994, Robert Falcone was incarcerated at the Lewis County Jail in the custody of the DOC. Medical staff at the jail misdiagnosed and mistreated Mr. Falcone, resulting in his receiving an unnecessary appendectomy. Mr. Falcone's neck glands also became ...

$250 for Lack of Aftercare Following Stroke

$250 for lack of aftercare following stroke

On February 8, 1996, while incarcerated at the WSP, Frederick Aylward suffered a stroke. The stroke severely limited Mr. Aylward's mobility. Following the stroke, WSP medical staff refused to provide physical therapy to assist Mr. Falcone in attempting to recover some of ...

$200 for Providing Wrong Medication

$200 for providing wrong medication

On October 19, 1999, James Rollins reported to the WCC pill line to obtain his daily medication. Approximately 20 minutes after receiving a pill from Nurse Norris, Mr. Rollins fell unconscious to the floor. WCC medical staff later determined that Ms. Norris had given him ...

Inadequate Dental Care Results in Settlement

Inadequate dental care results in settlement

In 1994, William Smith sued the dental department at the WSP for failing to provide annual check-ups and routine teeth cleanings. The DOC settled the case by agreeing to provide Mr. Smith with the services he complained were absent from the WSP dental department ...

Washington DOC Virtually Uninsurable

In the May, 2001, issue of PLN we reported the soaring cost of negligent parole supervision cases against the Washington Department of Corrections (DOC) in the past year, totaling over $50 million in verdicts and settlements at that time .One result of that steady stream of losing verdicts and huge jury awards ($22.4 million in a parole supervision case is the highest award against the State of Washington in its history) is that the Washington DOC is now virtually uninsurable.

In its latest insurance policy with AIG Europe, a London, England based insurer, the State of Washington pays a $1.6 million annual premium for liability insurance .Until now, Washington had a $5 million deductible .That has now been raised to a $15 million deductible _ and for the DOC and the Department of Social and Health Services (DSHS) it is a $25 million deductible .Since the highest verdict to date has been for $22.4 million, and Washington law does not allow for punitive damages, insurers are counting on not having to pay any claims against those agencies .There is also a $45 million annual limit on payouts by the insurer .Washington has the distinction of having the ...

New Retaliation Standard Defined

In a case of first impression, the Court of Appeals for the Third Circuit has defined a prisoner's burden of proof in a retaliation claim. Prisoner Henry Rauser sued Pennsylvania Department of Corrections (PDOC) officials after they retaliated against him for exercising his right to religious freedom under the First Amendment.

The PDOC issued a Prescriptive Program Plan for Rauser to complete before they recommended him for parole. Rauser was required to complete, among other things, Alcoholic Anonymous and/or Narcotic Anonymous, which require belief in a Supreme Being. Despite Rauser's objections based on his religious beliefs, PDOC refused to alter their plan or offer nonreligious programs. Rauser refused to participate because he was agnostic. It has previously been held that a mandatory AA/NA program for prisoners violates the Establishment Clause.

PDOC then took three actions in retaliation. First, they transferred him to a distant prison far from his home and family. They then changed his job classification from the highest payment of 41 ¢ per hour to the lowest rate of 18¢ per hour. Finally, they refused to recommend parole.

The district court granted summary judgment to prison officials. The Third Circuit held Rauser met the two ...

Pro Se Appellants Must Cite Authority

The Court of Appeals for the Seventh Circuit held that pro se prisoner litigants must cite supporting authority when they appeal adverse judgments. The ruling is especially important for pro se litigants in states that have inadequate, or nonexistent, prison law libraries.

Illinois prisoner Bobby Anderson filed suit claiming various state and prison officials conspired to have him unlawfully detained based on a "falsified indictment." The district court dismissed the suit under 28 U.S.C. § 1915A(b)(1) for failure to state a claim. The appeals court affirmed.

The court noted that pro se pleadings are held to a lower standard than those prepared by lawyers and are to be liberally construed. The court noted that Anderson gave no "articulable basis for disturbing the district court's judgment. Instead, he repeats certain allegations of his complaint and cites one irrelevant case."

The court notes that Rule 28 of the Federal Rules of Appellate Procedure (FRAP) requires that an appellate brief contain "an argument consisting of more than a generalized assertion of error, with citations to supporting authority."

"Rule 28 applies equally to pro se litigants and when a pro se litigant fails to comply with that rule, we cannot ...

NCIA Report Finds Prison Race Statistics Distorted

A report released in May 2001, says that Hispanic/Latino prisoners are often classified in a variety of racial categories, which results in a distortion of prison statistics reporting the racial composition of American prison populations.

The research report, Masking The Divide: How Officially Reported Prison Statistics Distort the Racial and Ethnic Realities of Prison Growth , was prepared by the National Center on Institutions and Alternatives (NCIA). The central premise of the report is that "without distinguishing between Hispanic/Latinos, whites, and African Americans, the number of white prisoners is significantly overstated." According to the Census Bureau, more than 90 percent of Hispanic/Latinos in America choose "white" as their race. While the census has attempted to differentiate non-Hispanics of any race from Hispanic/Latinos, prison statistics have not followed suit, the report says.

Looking at 1985 prison statistics, the researchers determined that white prisoners were overestimated by 22 percent or 47,276 more than their actual number because thousands of Hispanic/Latinos were included in the count of white prisoners. Whites were reported to be 52 percent of the total prison population in 1985 when they actually constituted only 42.5 percent. Because very few Hispanic/Latinos identify African ...

New York Court Limits "Son of Sam" Law

New York Court Limits "Son of Sam" Law

A New York appellate court affirmed a trial court ruling that, absent a state felony conviction and a complaint by the victim, the Crime Victims Board lacked authority to compel criminals to forfeit profits from the commercialization of their activities.

The intention of New York's "Son of Sam" law is, first, to relieve criminals of the profits earned from a printed or broadcast presentation of their crimes, and then to re-distribute those profits through the Crime Victims Board. The Board, upon a victim's complaint properly filed, is empowered to compel persons convicted of New York state felonies to turn over money and contracts from the commercialization of their crimes.

Recently, Salvatore "Sammy the Bull" Gravano was convicted in federal court of violating the Racketeer Influenced Corrupt Organization (RICO) laws and sentenced to 60 months in federal prison. Gravano, a former member of the Gambino crime family, then contracted with TJM productions to create the book and the movie titled Underboss . Complaining that the profits from the book and the movie would be paid to Gravano, the Board invoked the Son of Sam law and filed a lawsuit to recover those ...

New York Expands "Son of Sam" Law Giving Crime Victims More "Clout"

New York Expands "Son of Sam" Law Giving Crime Victims More "Clout"

by Lonnie Burton

In June 2001, the State of New York amended its socalled "Son of Sam" law to allow crime victims to collect on any monies a prisoner receives while in prison and to extend the statute of limitations on such claims to 10 years.

The "Son of Sam" law, which had enabled crime victims to sue defendants only for profits they received from book and movie deals, was originally enacted to prevent defendants from profiting from the notoriety of their crimes. The law has now been expanded to allow a victim of a crime to sue their perpetrator anytime he or she receives funds or property in excess of $10,000.

The new law sets up an elaborate system by which New York's Crime Victim's Board (CVB) notifies all known crime victims that a prisoner has received such funds and that he is no longer judgmentproof. The CVB is authorized to attach a prisoner's assets so that the prisoner can't spend it before a crime victim can act to collect it.

Under the law, crime victims are also authorized to seize all ...

PLN Awarded $58,059 in Attorneys' Fees in Oregon Bulk Mail Suit; PLRA Doesn't Apply, Injunction Entered

In the April 2001, issue of PLN we reported Prison Legal News v. Cook , 238 F.3d 1145 (9th Cir. 2001), where the Court struck down as unconstitutional the Oregon Department of Corrections (DOC) ban on third class non-profit mail. The Court also held that the plaintiffs ( PLN and Oregon ...

New York Failure to Protect Claim Set for Trial: Bilingual Counsel Appointed

A prison guard's motions for summary judgment and dismissal of a prisoner's 42 USC § 1983 action were denied after a federal district court found that further discovery was required and the prisoner's failure to follow orders of the court did not warrant dismissal.

Ruben Mendez, formerly a prisoner at New York's Attica Correctional Facility, sought damages consequent to a December 1995 incident where Edward Walker, a prison guard, opened Mendez' cell and allowed another prisoner, Rubin Velez, to attack him. Mendez suffered serious injuries requiring surgery and treatment at a nearby hospital.

The December attack was preceded by a November 1995 altercation involving the same two prisoners. Thereafter, Mendez and Velez were confined to their Cblock cells. Velez allegedly informed Mendez that he intended to ask his "friend," defendant Walker, to open Mendez' cell thereby allowing Velez to "kill" Mendez.

On December 2, 1995, Walker was working on Cblock. He opened Velez' cell to permit him to shower, then opened Mendez' cell to collect his food tray. As he did so, Velez attacked Mendez.

A prisoner injured while in custody may recover damages if the injury resulted from a prison official's deliberate indifference to the ...

Sixth Circuit Finds Ohio Response to Jewish Prisoner's Hair 'Exaggerated'

The Sixth Circuit Court of Appeals, in a case addressing an Ohio prisoner's suit over the Department of Rehabilitation and Correction's (DORC) hairlength restriction "as applied," has reversed the district court's denial of qualified immunity to DORC defendants, but remanded the case for declaratory and injunctive proceedings, finding that DORC's application of Ohio Administrative Code (OAC) §5129925 (the hair length rule) unreasonably interfered with the prisoner's free exercise of his religion and constituted an "exaggerated response to prison concerns."

Hbrandon Flagner is an Ohio prisoner and a practicing Orthodox Hasidic Jew. Hasisdic Jews strictly observe the Torah's proscription against shaving a man's beard and corners of the head. Following his conversion in 1991, Flagner, whose religious beliefs are recognized by DORC as being sincerely held and practiced, grew out his beard and side locks.

From 1991 to 1996, DORC officials did not require Flagner to shave his beard and side locks. On January 26, 1996, DORC official Bobby Couch issued Flagner a direct order to shave his beard and side locks, citing paragraphs (D) and (F) of OAC §5120925. Flagner refused and was thrown in the hole. He grieved the violation to DORC ...

Ohio Appeals Court Allows Prisoner's Request for Past Work Information on Guards

The Fourth District Court of Appeals of Ohio has reversed the decision of the Pickaway County Court of Common Pleas denying a prisoner's request for specific work information relating to two guards in the Department of Rehabilitation and Correction (DORC).

Timothy Conley is a DORC prisoner at the Southern Ohio Correctional Facility in Lucasville, Ohio. Conley filed a petition for writ of mandamus with the Pickaway County Court of Common Pleas to compel DORC officials at the Correctional Reception Center (CRC) to release photographs and work schedules of second shift guards, who worked in the CRC segregation unit on two specific dates. Conley claims that while he was at CRC in the segregation unit, he was battered by guards several times and that he needs to know the identities of guards in the unit on two specific dates.

DORC filed a Civil Rule 12(B)(6) motion to dismiss for failure to state a claim upon which relief could be granted. DORC argued that the identities and photographs of guards are exempted from Ohio's Public Record Act as "confidential law enforcement investigatory records," the release of which "would endanger the life or physical safety of law enforcement personnel ...

Arizona Prisoner Adequately Pleaded Section 1983 Claim

The Arizona Court of Appeals held that a prisoner was barred from bringing a tort action against the state and Department of Corrections (DOC) but that his allegations were sufficient to support a claim against a prison official under 42 U.S.C. § 1983.

Arizona prisoner Anant Tripati brought suit against the state, the DOC and Terry Stewart, an individual prison official. He alleged that defendants intentionally deprived him of personal property, including legal materials related to his conviction.

Defendants filed a motion to dismiss, arguing that Tripati could not maintain a tort against the state and DOC that does not involve serious physical injury; and that he failed to allege a viable § 1983 claim against Stewart. The trial court granted the motion and Tripati appealed.

On appeal, the Court concluded that ARS 3120101(L) limits prison tort claims against the state to those involving serious physical injury or ones authorized by federal statute. Since Tripati failed to allege either, the Court held that the trial court properly dismissed his claims against the state and DOC.

The Court concluded that Tripati adequately pleaded a § 1983 claim against Stewart, and reversed that portion of the trial court's judgment, dismissing the ...

News in Brief

Alaska: The state of Alaska has launched its first drive to recruit prison guards since 1988 to fill 40 guard positions when it opens a state jail in Anchorage. Applicants must be 21 years old, no experience is required. Starting pay is $33,300 a year, one of the highest in the nation. Details at

California: In May 2001, the Administrative Office of the U.S. Courts based in Washington D.C. issued a report stating that half of the federal court system's Internet use by employees was to download music, pornography and movies during working hours. Apparently court employees were downloading movies even as the Ninth Circuit Court of Appeals in San Francisco was ruling that such downloads violated federal copyright law. The Ninth Circuit responded by shutting down the court system's internet monitoring system, believing that it violates employees' right to privacy, including that of judges, by not telling them beforehand that their internet use is being monitored. The monitoring system was later turned back on.

California: On November 5, 2001, Leslie Church, 27, a prisoner at the Vista jail in Escondido, escaped on crutches from a local hospital while recovering from ...


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