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Prisoner Education Guide

Prison Legal News: April, 2002

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Volume 13, Number 4

In this issue:

  1. "Barbaric Conditions" At Wisconsin Supermax Result in Preliminary Injunction To Transfer Mentally Ill Prisoners (p 1)
  2. D.C. Wrongly Jails Mentally Ill Man for Two Years (p 4)
  3. Mistakenly Released Prisoners Have No Due Process Rights (p 5)
  4. From the Editor (p 5)
  5. Wisconsin Medical Care Substandard, Even for Prisoners (p 6)
  6. Texas Prison Warden Pleads Guilty; Prison Workers Arrested in Major Drug Bust (p 7)
  7. MCI WorldCom Investigated in Georgia for Phone Overcharges; State Senator Involved (p 8)
  8. Prison Guards Face Resentencing Dilemma in Beating Death of New York Jail Prisoner (p 9)
  9. 23 Escape from Wackenhut Prison in Caribbean (p 10)
  10. Wackenhut Searches for New Business (p 11)
  11. Angola Prisoner Wins $1.5 Million Verdict Against Five Guards for Assault (p 12)
  12. Pennsylvania Ban on Sex Between Staff and Prisoners Struck Down (p 12)
  13. South Carolina Guards Plead Guilty in Sex Cases (p 12)
  14. Illinois Court Reduces Prisoner's Eye Injury Award to $850,000 (p 13)
  15. $237,500 New York Administrative Segregation Verdict Upheld (p 14)
  16. $500,000 Settlement in Oregon Jail Self-Mutilation Case (p 15)
  17. U.S. Supreme Court Holds Private Prison Corporations Immune from Bivens Suit (p 18)
  18. Intangible Religious Freedom Claims Not Barred by PLRA (p 19)
  19. Florida's Prisoner Indigency Statute Unconstitutional (p 19)
  20. D.C. Closes Lorton Prison (p 20)
  21. Massachusetts DNA Law Invalidated (p 20)
  22. HIV Still a Major Health Threat in Prisons and Jails (p 21)
  23. Failure to Protect States Claim in High Profile Case (p 21)
  24. Death Toll Hits 87 as Turkish Prison Protest Strike Continues (p 22)
  25. Consecutive Ad Seg Placements From Same Cause Are Aggregated for "Atypical Hardship" Analysis (p 23)
  26. En Banc Third Circuit Defines Religious Standard (p 24)
  27. $147,000 Paid for 3-1/2 Hour Overdetention and Strip Search of Mistaken Arrestee (p 25)
  28. $250,000 Award for Paraplegic Dallas County Jail Prisoner (p 26)
  29. Defendants Denied Summary Judgment in Wrongful Incarceration Suit (p 27)
  30. Pennsylvania Youths Have No Right to Education (p 27)
  31. BOP Disciplinary Habeas Requires Exhaustion (p 28)
  32. No Immunity for Photo Limit (p 28)
  33. Detainee's Strip Search Unconstitutional, But Qualified Immunity Granted (p 29)
  34. Pubic Hair Search by Medical Personnel Constitutional (p 29)
  35. News in Brief (p 30)
  36. PLRA Protects Lawless Guards Accused in Prisoner Beating (p 32)

"Barbaric Conditions" At Wisconsin Supermax Result in Preliminary Injunction To Transfer Mentally Ill Prisoners

"Barbaric Conditions" At Wisconsin Supermax Result in Preliminary Injunction To Transfer Mentally Ill Prisoners

by John Dannenberg

Noting that the Eighth Amendment's cruel and unusual punishment clause protects the mental health of prisoners no less than their physical health, and observing mistreatment of seriously mentally ill prisoners "bordering on barbaric," the United States District Court (WD Wis.) issued a preliminary injunction (PI) against prison officials at a Wisconsin "Supermax" prison requiring them to immediately transfer out seven specified mentally ill prisoners and to implement a rigorous mental health evaluation of all other high-risk prisoners within 36 days.

Dennis Jones'EI and sixteen other seriously mentally ill prisoners sued under 42 USC § 1983 on behalf of themselves and all others similarly situated at the Level One unit of Wisconsin's Supermax Correctional Institution in Boscobel, Wisconsin, claiming violation of their Eighth Amendment mental health rights while in Level One's extremely isolated and restricted environment.

Supermax is a 500 bed facility divided into four units. Within Alpha Unit is a five-level behavior-based isolation section. Level One, where the plaintiffs were mostly housed, was the most restrictive and punitive. After 30 days in Level One, a prisoner would be evaluated by ...

D.C. Wrongly Jails Mentally Ill Man for Two Years

D.C. Wrongly Jails Mentally Ill Man For Two Years

Joseph Heard, 42, was released from the Washington D.C. jail on August 13, 2001. He served nearly 2 years in solitary confinement in the jail's mental health unit. The problem is that all charges against him were dismissed nearly 2 years earlier.

Heard was arrested in November 1998 on a charge of unlawful entry at George Washington University. After several mental health evaluations, all finding Heard mentally unfit to stand trial, the charges against Heard were dismissed, and he was ordered released.

When federal marshals returned Heard to the jail from the court hearing at which Heard's release was ordered, they told jail guards that Heard's release order was on its way. The order never arrived, however, and jail guards never bothered to follow up.

Heard's file was then labeled inactive and archived. The mistake was not discovered until shortly before Heard's release when administrators were reviewing prisoner files for possible transfer to the federal prison system.

Heard was ultimately transferred to St. Elizabeth's Hospital in Washington D.C., where he at last might receive the mental health treatment he needs. Heard, a ...

Mistakenly Released Prisoners Have No Due Process Rights

The Court of Appeals for the Fourth Circuit has held that prisoners who were released on mandatory supervision then arrested as escaped prisoners and reincarcerated without a hearing had no right to due process.

Vincent Henderson, Daryelle Rexrode, and John Calella, were Maryland state prisoners who were released on mandatory supervision. Following their release, the Court of Appeals of Maryland (the court of last resort in the state of Maryland) decided Besears v. Wicker , 349 Md. 1 (1998), which involved the interpretation of the Maryland statutes governing the calculation of sentence "diminution credits". Thereafter, the defendants, who were high level law enforcement and prison officials, decided that their understanding of the rule in Wicker should be applied to recalculate the release date of prisoners who had already been released and prisoners whose recalculated release dates had not yet arrived should be reincarcerated. To facilitate the reincarceration, defendants issued retake warrants for escaped prisoners which resulted in the plaintiffs being arrested and incarcerated without a hearing.

Henderson filed a petition for a writ of habeas corpus, won, and won on the state's appeal. The plaintiffs were released after 14 to 18 days of incarceration. Plaintiffs then filed a federal civil ...

From the Editor

In next month's issue we will report the results of our reader survey as well as our matching grant campaign. As this issue goes to press we are still receiving responses to both.

A recurring problem for PLN has been some subscribers, especially prisoners, who move and don't notify us of their change of address. Remember, PLN is mailed standard mail, which means that not only does the post office not forward it when you move, it returns it to PLN and charges us 60 cents for each issue returned.

Frequently we will receive several months worth of PLN 's sent to a given reader back on the same day. So if you move, please notify us promptly.

Subscribers who move and don't notify us of their new address can obtain make-up issues for $2.50. These make-up issues will be mailed first class. Back issues older than three months, however, will be offered for the usual back issue price of $5.00.

Enjoy this issue of PLN and encourage others to subscribe.

Wisconsin Medical Care Substandard, Even for Prisoners

Michelle Greer had asthma, the operative word being had past tense. Her asthma no longer exists because Michelle Greer is dead. On February 29, 2000, at the Taycheedah Correctional Institution, she died of an asthma attack, suffocated by the apathy and neglect of the Wisconsin prison system.

Greer had complained over and over that her inhaler was ineffective but her repeated pleas for help went unheeded by medical services. Twice prison guards contacted the infirmary on her behalf, but nurses said that because Greer could talk there was no medical emergency. Michelle's last minutes of life were spent sprawled on the floor of a Wisconsin prison chow hall, her hand desperately clutching an impotent inhaler. [See: Feb. 2001, PLN .]

Greer's death sparked an investigation of prison medical practices, and what the investigation found is unsettling. Wisconsin prisons fail to meet more than half of prison healthcare benchmark standards. Compared to other states with comparable populations, Wisconsin prisons have been found to be deficient in several areas.

For instance, in many Wisconsin prisons CPR-certified staff are virtually non-existent, and 24-hour health care is far below the standards of other states. Of greatest concern, however, is the huge disparity in ...

Texas Prison Warden Pleads Guilty; Prison Workers Arrested in Major Drug Bust

A former Texas prison warden who pled guilty to stealing more than $9,300 from a charity fund was sentenced to 5 years probation by a Coryell County District Court in Gatesville, Texas.

On October 18, 2001, Linda Moten, who retired in August 2001 as warden of the Gatesville State Prison for Women, agreed to a plea bargain that requires her to pay $9,386.79 in restitution. Moten allegedly took the money from funds raised for charitable purposes.

Terms of the plea bargain call for deferred adjudication of the third-degree felony that will be cleared from her record if Moten successfully completes the terms of her probation.

Moten began her career with the Texas prison system in 1975 as a guard. She was one of the first female prison guards to work at a male facility, and was the first female African-American warden in Texas.

The Gatesville Chamber of Commerce had honored Moten as 1997 Citizen of the Year; she received the Governor's Volunteer Service Award in 2000; and she was twice nominated for Outstanding Woman in Texas. Before resigning in August, she had served about 7 years on the Gatesville School Board.

Her career came to a ...

MCI WorldCom Investigated in Georgia for Phone Overcharges; State Senator Involved

MCI WorldCom owns the exclusive contract to provide phone services to the 45,000 prisoners incarcerated in the State of Georgia. Of course, the prisoners are only allowed to place collect calls, and have no choice on which company to use. The state decides that for them. It's MCI WorldCom or nothing. For much of August and September of 2001, family or friends of Georgia prisoners heard a recorded message prior to accepting the call that stated that the rates for the call would be $2.44 for the first minute, and 24 cents for each additional minute.

But, in fact, the actual bill was more than double. Those who accepted the collect calls were actually billed $4.64 for the first minute, and 69 cents for each additional minute. In August alone, MCI WorldCom collected more than $1.5 million on 158,796 calls. Their contract with Georgia DOC calls for the state to receive a 65 percent kickback on all prisoner calls, which gave them more than a $1 million windfall on the overcharges.

Neither the state nor MCI WorldCom will say what they will do with their portion of the money that the Corrections Department concedes ...

Prison Guards Face Resentencing Dilemma in Beating Death of New York Jail Prisoner

Prison Guards Face Resentencing Dilemma In Beating Death Of New York Jail Prisoner

by John E. Dannenberg

The U.S. Court of Appeals for the Second Circuit vacated the federal criminal civil rights sentences of the Nassau County, New York guards who had pled guilty to brutally beating to death a county jail prisoner, and remanded for resentencing to the U.S. district court. Because the Circuit Court noted the guards could receive considerably harsher sentences on remand, it stayed the mandate of its ruling for 30 days to permit the guards the damage-control option of withdrawing their appeals.

Prisoner Thomas Pizzuto had been sentenced to Nassau County Correctional Center for 90 days for driving under the influence of methadone. When Pizzuto was "slow" getting back into his cell after asking guard Edward Velazquez for methadone, a medication commonly used in the treatment of heroin addiction, Velazquez and another guard, Patrick Regnier, told their supervisor Gary Pincus they would "pay [Pizzuto] a visit." After posting another guard, Ivano Bavaro, outside Pizzuto's cell as a lookout, Velazquez and Regnier entered the cell, where Pizzuto was sitting on his bunk.

Velazquez punched Pizzuto in the eye, pushed him into a prone ...

23 Escape from Wackenhut Prison in Caribbean

23 Escape From Wackenhut Prison in Caribbean

by Gary Hunter

A rash of escapes have fueled investigations into negligence and possible corruption at a Wackenhut prison. In less than two months, 23 prisoners have escaped from Curacao's Koraal Specht prison in Netherlands Antilles. On March 24, 2001, six prisoners escaped from a newly constructed housing unit. Less than three weeks later, on April 9th, five more prisoners sawed their way to freedom through cellblock shutter vents. Then, exactly one month to the day, a dozen more prisoners escaped.

Suspicious circumstances surrounded the escapes from the beginning. The first escape was clearly accomplished with outside assistance. Using temporary stairs built for use on the construction site, intruders covertly entered the prison grounds from the outside and forced open an emergency exit with a crowbar. To give the door the appearance of being secure the intruders wedged the door shut with concrete blocks. The ruse was successful. The intruders entered and left the grounds unnoticed and the open door escaped detection by patrolling guards. During the next shift, when prisoners were allowed to leave their cells, six of those prisoners successfully escaped through the door.

This blatant lapse in security has ...

Wackenhut Searches for New Business

Wackenhut Searches For New Business

In the 1990s, states couldn't build prisons fast enough. To keep up with the ever-increasing number of prisoners, many states turned to private prison companies like Wackenhut Corrections, Corrections Corporation of America, and Cornell Corrections. But the prison-building boom of the 1990s has now evolved into a pattern where private, for-profit, prisons search for new ways to fill their existing beds.

In 1994, 40 states were under court order to ease overcrowding. In fact, the overcrowding problem got so bad that 30,000 prisoners were released that year without spending a day in jail. The problem turned into profits for Wackenhut, who embarked on a six-year prison-building spree.

In the second half of 2000, state prison populations fell by over 6,200 _ the first drop since 1972. Now, many states are facing a surplus of prison beds after embarking on massive prison-building programs, and Wackenhut has had to rethink its business strategy to cope with this change in circumstances.

In Florida, where Wackenhut has two privately run prisons, authorities report that the state prisons are running at only 81 percent capacity, while Wackenhut's two Florida prisons are 95 percent filled. Wackenhut's ...

Angola Prisoner Wins $1.5 Million Verdict Against Five Guards for Assault

In January 2001, pro se prisoner John Poullard won a $1.5 million judgment against five guards who beat him in retaliation for other lawsuits and complaints he had previously filed.

Poullard, who is serving time at Louisiana State Penitentiary at Angola, alleged that the five guards--identified as Captain Joseph ...

Pennsylvania Ban on Sex Between Staff and Prisoners Struck Down

On December 10, 2001, Montgomery county court judge Marino Rossanese struck down as unconstitutional a 1998 Pennsylvania law that bans sex between prisoners and prison and jail employees. The ruling came in the case of Eileen Mayfield, 43, a guard for 18 years at the Montgomery County Correctional Facility.

In December 2000, several prisoners at the jail alleged that Mayfield engaged in sexual acts with them. Prisoner Gene White claims Mayfield performed a (unspecified in media reports) sexual act on him five times and paid him hundreds of dollars worth of commissary items for the privilege of doing so. Prosecutors filed three charges of institutional sexual assault against Mayfield.

Mayfield claimed the charges were in retaliation for a sexual harassment lawsuit and complaint she had filed against the jail's deputy warden, Julio Algarin.

Judge Rossanese didn't deal with the retaliation claims. Instead, he dismissed the charges against Mayfield by holding that the law banning sex between prisoners and prison/jail employees was vague and overbroad because it flatly outlaws sex between guards and prisoners. Rossanese gave a bizarre example of a hypothetical prisoner out on work release being barred from having sex with a spouse who works as ...

South Carolina Guards Plead Guilty in Sex Cases

In the April 2001 issue of PLN we reported at length on a series of investigations into allegations of drug smuggling by staff, as well as sexual activity between prisoners and staff, in South Carolina prisons.

The investigation was started by a tabloid newspaper report that prisoner Susan Smith had been beaten in prison. Smith is notorious for being convicted of drowning her 3-year-old and 14-month-old sons in 1994 after she claimed on national television that they had been taken from her in a carjacking. It turns out that the beating report was false, but Smith told prison investigators that she had been having sex with at least two prison employees.

On September 6, 2001, Alfred Rowe, Jr., 40, a former captain at the Women's Corrections Center in Columbia, pleaded guilty to having sex with Smith. Circuit judge Lee Casey Manning sentenced Rowe to five years probation. Manning said he took into consideration the fact that the sex was "consensual". South Carolina, like many other states, has criminalized sex between prisoners and staff by finding that prisoners are inherently incapable of consenting to sex with their captors.

A month earlier, on August 13, 2001, Lt. Houston Cagle pleaded guilty ...

Illinois Court Reduces Prisoner's Eye Injury Award to $850,000

The United States District Court for the Central District of Illinois has denied a motion for a new trial by an Illinois Department of Corrections (ILDOC) physician but granted remittitur of both the compensatory and punitive damages awards given to an ILDOC prisoner following a jury trial. The verdict was ...

$237,500 New York Administrative Segregation Verdict Upheld

A New York state prisoner won damages in a jury trial in the United States District Court for the Western District of New York against employees of the New York State Department of Correctional Services (DOCS) for due process violations in confining him in a Special Housing Unit (SHU) for ...

$500,000 Settlement in Oregon Jail Self-Mutilation Case

In March 2001, the Multnomah county jail in Portland, Oregon, paid over $500,000 to settle a lawsuit by a mentally ill jail prisoner who gouged his eyes out during a psychotic episode. In 1998 Peter Klarquist was found guilty except for insanity of assorted charges, including second-degree assault and ...

U.S. Supreme Court Holds Private Prison Corporations Immune from Bivens Suit

by John E. Dannenberg

In a 5-4 decision, the U.S. Supreme Court narrowly construed Bivens actions suing private federal prison contractors to be available only against their individual prison employees, and not the parent corporations.

Reversing the Second Circuit US Court of Appeals in Malesko v. Correctional Services Corp. [CSC], 229 F.3d 374 (2 nd Cir. 2000) [ PLN, July 2001, "Private Prison Corp. Can Be Sued In Bivens Action"], the high court declined to extend Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics 403 U.S. 388, 91 S.Ct. 1999 (1971) to include a "private corporation" within its definition of "individual officers".

John E. Malesko was convicted of federal securities fraud in 1992 and sentenced to 18 months imprisonment under supervision of the Federal Bureau of Prisons (BOP). While in their custody and care, he was diagnosed with and treated for a heart condition. In 1994, he was transferred to Le Marquis Community Correctional Center, a halfway house operated on behalf of BOP by CSC.

He had use of an elevator to reach his fifth floor room there until CSC changed their elevator policy to only permit use for residents on the sixth and ...

Intangible Religious Freedom Claims Not Barred by PLRA

Intangible Religious Freedom Claims Not Barred By PLRA

by John E. Dannenberg

The U.S. District Court (District of Massachusetts) held that the Prison Litigation Reform Act's (PLRA) proscription of claims for emotional damages, in the absence of physical harm, did not foreclose claims for violation of constitutionally protected religious rights covered under the Civil Rights of Institutionalized Persons Act (CRIPA).

Azuzallah Shaheed-Muhammed (Muhammed), a life prisoner, sued Massachusetts Department of Corrections officials for alleged violation of his rights to practice his Muslim religion.

His claims involved dietary needs, an Islamic newspaper, a religious medallion and retaliatory transfer to another Massachusetts prison for having complained. The legal question was the tension between the PLRA, which excludes complaints for emotional damages unless you were also physically harmed, and the CRIPA, which protects constitutional rights of prisoners.

Defendants moved to have the case dismissed as moot when Muhammed was later transferred _ to the Arizona Prison Complex in Florence, Arizona _ where apparently his needs were met. He countered by saying that because he could be transferred back to Massachusetts, the issues were capable of repetition yet evading review and thus were not moot. The court ruled that mere speculation of ...

Florida's Prisoner Indigency Statute Unconstitutional

The Florida Supreme Court, in two separate cases, has held that Florida's Prisoner Indigence Statute (PIS) is unconstitutional, and ordered reinstatement of cases dismissed for failing to comply with PIS. Prisoner Douglas M. Jackson, Sr., filed a writ of mandamus seeking to compel the Florida Department of Corrections (FDOC) to give him payment for duties and tasks he performed as a prisoner. In denying relief upon the issue of the writ, the Court quoted the Thirteenth Amendment to the U.S. Constitution which states: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted shall exist within the United States, or any place subject to their jurisdiction."

Prior to ruling Jackson's writ is frivolous, the Court ordered him to comply with PIS. The PIS requires that prisoners file copies of their prior civil actions before the court can even consider making an indigency determination. Jackson asserted FDOC made him do away with his previous pleadings. The Court assumed the legislature's intent was to reduce the court's workload by having it determine if the prisoner filed a previous frivolous successive petition. The Court stated the copy requirement has ...

D.C. Closes Lorton Prison

The 91-year-old Lorton Correctional Complex is closed. Forever. In November 2001, after a 16-year-old jail population cap was temporarily lifted, the last 300 prisoners were transferred from the nearby Fairfax County complex to the District's main jail in Washington, D.C.

On November 15th, U.S. District Court Judge William Bryant granted an unopposed motion to suspend until December 21st an earlier court order which limits the number of prisoners who may be held in the District's jail. Prison officials immediately went forward with plans to vacate the Lorton facility in advance of the December 31st deadline, saying they hoped to avoid any last-minute problems.

Prisoners' rights advocates who have struggled since 1971 to improve conditions in the District's jail did not oppose temporarily exceeding the population cap but urged that all prisoners receive adequate treatment.

Lorton's closing was mandated by the 1997 Revitalization Act that transferred the cost of operating the District's prisons to the federal government. Under the provisions of the act, the care and feeding of the District's prisoners will become the responsibility of the U.S. Bureau of Prisons that will eventually oversee the transfer of the District's prisoners ...

Massachusetts DNA Law Invalidated

In an unpublished ruling, the Superior Court of Massachusetts invalidated a state statute authorizing the Massachusetts Department of Corrections (MDOC) to: define indigence for the purpose of assessing costs of collecting and processing DNA samples; and impound and seize funds from prisoner accounts without their consent for the purpose of paying such costs.

A Massachusetts statutory provision "required persons convicted of certain crimes to submit samples of the deoxyribonucleic acid (`DNA')," and further requires that "the cost of preparing, collecting and processing a DNA sample shall be assessed against the person required to submit a DNA sample, unless such a person is indigent." The cost of collecting and processing DNA samples has been set at $110.

The MDOC adopted a rule authorizing it to establish standards for determining indigence and to seize funds from prisoner accounts to pay the DNA assessments. The MDOC's "DNA Assessment Procedures" provide that an indigent prisoner is on who has had less than ten dollars in his or her account for the preceding 60 days prior to the date of collection.

Several prisoners, represented by Massachusetts Correctional Legal Services, brought suit, seeking a declaration that the MDOC rule and the DNA Assessment Procedures were ...

HIV Still a Major Health Threat in Prisons and Jails

Between 1995 and 1999, the death rate from AIDS in prisons and jails plummeted, and the rate of increase of HIV in prisons grew at about one third the rate of increase of the general prison population. That bit of good news, part of a July 2001 report by Laura M. Maruschak of the Bureau of Justice Statistics, is overshadowed by the generally grim news about HIV and AIDS among prisoners.

The report, HIV in Prisons and Jails, 1999 , surveys prisons and jails nationwide on the extent of the HIV/AIDS epidemic within prisons. The survey found that 3.4% of all female state prisoners were HIV positive, compared to 2.1% of all male prisoners. Also, the overall rate of confirmed AIDS cases among prisoners is five times greater than the rate among the nonincarcerated general population in the United States. And while the number of AIDS deaths in state prisons has fallen from 1,010 in 1995 (a rate of 100 deaths per 100,000 prisoners) to 242 in 1999 (20 deaths per 100,000), AIDS remains the second-leading cause of death for state prisoners, behind "Natural causes other than AIDS," and far ahead of suicide, accident, execution ...

Failure to Protect States Claim in High Profile Case

The Court of Appeals for the Seventh Circuit has held the failure to protect a pre-trial detainee in a highly charged and well-publicized case states a claim. Morritz Weiss, a white male, was the principal suspect in the rape of a 15-year-old African-American girl.

In early June 1995, Weiss was charged in the case. He was not immediately taken into custody because he could not be found. After a widely publicized manhunt, Weiss was captured in Tennessee. On July 6, 1995, detectives transported Weiss to the Morgan County Jail in Indianapolis, Indiana. During the transport, Weiss was informed there had been extensive publicity about the case, there was great public anger, and racial tensions had been heightened by it.

Weiss' arrival at the jail was filmed by television crews. Prisoner "trusties" congregated around the booking area while guard Brad Cooley booked Weiss. When booking was complete, Cooley escorted Weiss toward C_Block. As they walked by Blocks A and B, other prisoners shouted threats to Weiss, including "we know who you are and what you did." Weiss requested Cooley to put him in isolation. Cooley retorted, "You have to go where I put you." Weiss again pleaded with Cooley, who responded ...

Death Toll Hits 87 as Turkish Prison Protest Strike Continues

On November 4, 2001, Turkish police used armored vehicles to batter down the barricades protesters had erected in Kucakarmutlu, an outlying district on the European side of Istanbul. The semi-official news agency Anatolia reported four protesters had died of burns or carbon monoxide poisoning after setting themselves ablaze. A police officer present at the scene, however, said the four had been found dead when police entered the premises. Fourteen protesters were reported injured during the raid, some seriously.

This happened almost a year after the police had stormed some 20 prisons for four long days in December 2000. Thirty-two died then, 30 prisoners and two police officers. [See: PLN , August 2001]. Here too, it was reported that many prisoners set themselves aflame rather than surrender. Again the official version was contradicted when surviving prisoners said the army poured gasoline into open holes in the roof and set it afire.

What were the prisoners and their free supporters _ hunger strikers all _ demanding that drove (and continues to drive) them to the point of death, and causes the police to attack them? Some of the strikers in the November raid were prisoners who had been released because they had starved ...

Consecutive Ad Seg Placements From Same Cause Are Aggregated for "Atypical Hardship" Analysis

Consecutive Ad Seg Placements From Same Cause Are Aggregated For "Atypical Hardship" Analysis

The Second Circuit U.S. Court of Appeals held that where a prisoner suffered 670 days of administrative segregation (Ad Seg) placement at one prison and when transferred to another prison was placed in continuing Ad Seg for another 92 days without new cause, the analysis of his Sandin -based "atypical hardship" complaint would be based on the aggregate duration of all his Ad Seg time, not just the Ad Seg time at the new prison.

New York state prisoner Julio Giano presented a challenge to prison officials as to proper housing. On the one hand, he was an escape risk from his prior escape from Sing Sing prison, while on the other hand, he was stabbed by another prisoner shortly after being placed in the general population. But whatever their rationale, prison officials kept him for 670 days in Ad Seg conditions of 23 hour per day lockup, one visit per week, no personal property, no phone calls, no commissary, no packages, and no participation in educational, rehabilitative or religious programs.

Giano filed several 42 USC § 1983 complaints as a result, some of which overlapped adjudication ...

En Banc Third Circuit Defines Religious Standard

by Matthew T. Clarke

The federal Court of Appeals for the Third Circuit sitting en banc has ruled that the centrality of a religious belief to a prisoner's religion is not a factor in whether the belief must be accommodated by prison officials. In doing so, it specifically overturned its previous decision in Johnson v. Horn .

Pennsylvania state prisoner Robert P. DeHart filed suit under 42 U.S.C. § 1983 alleging prison officials violated his First Amendment right to free exercise of his religion by failing to provide him with a vegetarian diet consistent with his Buddhist religious beliefs. He also alleged that the prison system's refusal to accommodate his religious dietary requirements constituted unequal treatment because they did provide Jewish prisoners with a special kosher diet. The district court granted summary judgment for the defendants upon its holding that a vegetarian diet requirement is not a central tenet of any of the major traditions of Buddhism. DeHart appealed.

The Third Circuit held that the district court erred in its analysis of DeHart's religious beliefs under Turner v. Safley , 482 U.S. 78 (1987). The proper Turner analysis employs a four-part balancing test in which the court ...

$147,000 Paid for 3-1/2 Hour Overdetention and Strip Search of Mistaken Arrestee

The Eighth Circuit Court of Appeals upheld a jury verdict of $100,000 against the Little Rock, Arkansas police when, after a judge ordered the release of a mistakenly arrested woman, they failed to promptly do so.

Willie Mae Young was arrested by Little Rock police officer James Brown on ...

$250,000 Award for Paraplegic Dallas County Jail Prisoner

$250,000 Award For Paraplegic Dallas County Jail Prisoner

by Matthew T. Clarke

A paraplegic Texas prisoner has been awarded a quarter million dollars for pain and suffering caused by conditions in the Dallas County Jail (the jail).

Brent Lawson, a Texas state prisoner, filed suit against Dallas County and ...

Defendants Denied Summary Judgment in Wrongful Incarceration Suit

Defendants Denied Summary Judgment In Wrongful Incarceration Suit

An Indiana federal district court has partially denied summary judgment and the qualified immunity defense to defendants at the Allen County (Indiana) Jail in a case involving wrongful imprisonment.

Shakidi Johnson was arrested on contempt of court charges for failure to appear in two paternity suits filed against him in the Allen County Superior Court. Johnson was also charged with misdemeanor resisting arrest. The Allen Superior Court issued an order, called a "Body Attachment," instructing the Allen County Sheriff to arrest and hold Johnson "until you bring that person before the Judge to answer a contempt in not obeying an order of this court."

Johnson was arrested November 10, 1997, and after serving time for the contempt and resisting arrest charges he was scheduled to be released December 19, 1997. He was not released until January 6, 1998, despite having filed 14 inquiries with jail officials over 27 days, when his family contacted the court directly and obtained a release order.

Thereafter, Johnson filed suit under 42 U.S.C. § 1983, alleging violations of his U.S. Constitutional rights under the Fourth, Eighth, and Fourteenth (substantive due process) Amendments.

The defendants responded ...

Pennsylvania Youths Have No Right to Education

The Court of Appeals for the Third Circuit has held that Pennsylvania youths sentenced as adults and sentenced to county detention centers have no right to an education. This was a class action suit filed by school-aged youths against the Pennsylvania Department of Education, its Secretary, and three school districts. The youths sought to bar enforcement of 24 Pa.Cons.Stat. § 13-306.2(a) (Subsection A) on constitutional grounds. The district court denied the youth's request for a preliminary injunction.

Pennsylvania law confers on youths between the ages of 6 and 21 the right to a public education until the completion of high school. Subsection A provides persons under 21 confined to an adult local detention center have a right to educational services the same as expelled students. An expelled student under 17 has a right to five hours as opposed to the normal 27.5 hours, while expelled students 17 and over have no right to educational services. Subsection A differentiates between youths sentenced to adult county detention centers and adult prison facilities. Those sentenced to five years or more go to state prisons. Sentences between two and five years are served at the facility of the judge ...

BOP Disciplinary Habeas Requires Exhaustion

The Second Circuit Court of Appeals has ruled that a federal prisoner who files a habeas corpus petition under 28 U.S.C. § 2241 must first exhaust all available administrative remedies, and further held that a prisoner procedurally defaulting on those remedies may be excused from default only by first showing cause and prejudice.

Carlos Pelaez-Edison Carmona is a prisoner in the Federal Bureau of Prisons (BOP). In late 1996, Carmona was disciplined for possession of marijuana. He appealed to the BOP Regional Director, disputing the merits of the disciplinary hearing officer's findings. The Regional Director affirmed the hearing officer and instructed Carmona of his right to appeal to BOP's General Counsel. Carmona's appeals failed repeatedly to comply with established BOP procedures and were ultimately dismissed as untimely.

In 1998, Carmona petitioned a federal district court in New York for a writ of habeas corpus under 28 U.S.C. § 2241, claiming several due process violations. In 2000, the district court dismissed the petition because Carmona failed to appeal his disciplinary hearing properly and because the issues raised in the petition were never raised in the administrative appeals. The district court found that because Carmona could no ...

No Immunity for Photo Limit

The Court of Appeals for the Eighth Circuit, in a per curium opinion, held that Arkansas prison officials were not entitled to qualified immunity for promulgating a policy that allows prisoners to retain only five photographs in their cells.

Len Davis, a federal prisoner in the Arkansas state prison system, filed suit challenging the Arkansas Department of Corrections (ADC) policy of limiting prisoners to possessing five personal photos.

The defendants moved for summary judgment on qualified immunity grounds, and the district court denied their motion. The defendants then filed an interlocutory appeal. The appeals court affirmed the lower court.

"Prisoners' First amendment rights encompass the right to be free from certain interference with mail correspondence, which in this instance includes photographs." The Court noted that the defendants would be entitled to qualified immunity "if they reasonably believed that their implementation of the photograph policy did not violate Davis's First amendment rights."

The Court held that the defendants had failed to meet their burden of proof. "Although defendants asserted that the policy was reasonably related to the interest of security, we agree with the district court that it was impossible to determine on this record whether the policy advanced this ...

Detainee's Strip Search Unconstitutional, But Qualified Immunity Granted

The court of appeals for the Eleventh Circuit has held that a jail strip search of an arrestee without reasonable suspicion violates the Fourth Amendment, but granted qualified immunity. DeAngela Wilson was arrested at a checkpoint for driving under the influence of alcohol, and was taken to the Shelby County, Alabama Jail. Because the jail does not have facilities to house temporary female detainees, Wilson was placed in a cell within the general female population of the jail. Before being taken to her cell, Wilson was given a complete strip search pursuant to jail policy. Subsequently, Wilson brought suit under 42 U.S.C. § 1983 against Sheriff James Jones asserting that her rights were violated as a result of the jail policy that mandated the search. The district court granted summary judgment in favor of Wilson.

The Eleventh Circuit noted that Sheriff Jones testified, "I don't believe we had a reason to suspect [Wilson] had any contraband." The court held that the strip search of Wilson absent reasonable suspicion, as well as the jail policy authorizing her search, violated the Fourth Amendment prohibition against unreasonable searches. The court then examined the district court's denial of qualified immunity to ...

Pubic Hair Search by Medical Personnel Constitutional

The Court of Appeals for the Eleventh Circuit has overturned a district court's order that held as unconstitutional a Sheriff's policy of searching a prisoner's pubic hair prior to release. PLN previously reported the district court's order. (See: Skurstenis v. Jones , 817 Supp.2d 1228 (ND AL 1999) [ PLN , Jan. 2001]. On remand, the district court allowed the plaintiff to re-file her state law claims in state court.

Sandy Skurstenis was arrested for driving under the influence of alcohol. At the time of the arrest Skurstenis had a .38 Special handgun, for which she had an expired permit, in the floorboard of her car. After being booked in the Shelby County jail, she was strip searched by a female deputy.

The Eleventh Circuit held that Jail policy that each detainee be strip searched without reasonable suspicion does not comport with the requirements of the Fourth Amendment. However, the Court held that possession of a weapon by a detainee provides reasonable suspicion necessary to authorize a strip search. Thus, as Skurstenis' strip search was done in the-least intrusive manner possible, her constitutional rights were not violated.

The Court then turned to the strip search prior to Skurstenis ...

News in Brief

News in Brief:

Brazil: On October 31, 2001, police negotiated an end to an uprising at the Carumbe prison in Cuiaba. Sixty of the prison's 380 prisoners killed a prisoner, then seized two guards as hostages. The prisoners demanded a review of their sentences, that the warden be fired, a refrigerator in every cell, plus fans, barbeque grills, cotton swabs, shampoo, conditioner, and four pounds of fresh meat per prisoner each week. Police did not disclose which demands had been met.

Brazil: On January 2, 2002, between 30 to 40 prisoners at the Urso Banco prison in Porto Velho near Bolivia were killed in clashes between rival gangs. After members of one gang failed in an escape attempt, they were placed in a section of the prison with rival gang members, which led to fighting between the groups with metal bars, knives and guns.

California: In October 2001, Governor Gray Davis vetoed legislation that would have eliminated the $5 medical co pay charged to state prisoners who seek medical care. He also vetoed a bill that would have allowed mothers to have overnight visits with their children.

California: On December 16, 2001, Robert Gillett died at a Fresno hospital ...

PLRA Protects Lawless Guards Accused in Prisoner Beating

A lawsuit filed by a federal prisoner in Colorado provides a clear example of how the Prison Litigation Reform Act (PLRA) protects lawless prison guards from the consequences of their blatantly illegal actions.

William Vance Turner is a Federal Bureau of Prisons (BOP) prisoner in Protective Custody (PC) at Florence ...

 

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Disciplinary Self-Help Litigation Manual