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Prisoner Education Guide

Prison Legal News: May, 2002

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Volume 13, Number 5

In this issue:

  1. Bailing Out the Private Prison Industry (p 1)
  2. Hawaiian Women Prisoners File Suit Over Sex Abuse, Torture in Oklahoma Private Prison (p 6)
  3. Suicides, Staff Negligence Plague Private Arkansas Juvenile Prison (p 7)
  4. From the Editor (p 8)
  5. Failure to Timely Pay Filing Fee Dismissal Reversed (p 9)
  6. U.S. Cited for Human Rights Violations (p 10)
  7. U.S. Cited for Human Rights Violations (p 11)
  8. High Cost of Prison Telephone Calls Goes to Illinois State Court (p 12)
  9. Montana Supreme Court Upholds Refusal to Seal Settlement Agreement (p 13)
  10. Prison Phone Rate Case Remanded to South Carolina State Court (p 13)
  11. Wisconsin Ban on Sexually Explicit Materials Unconstitutional (p 14)
  12. Grievance Retaliation States Claim (p 16)
  13. Oregon Passes Pay-to-Stay Law (p 16)
  14. New York Assault and Medical Case Settled for $5,000 (p 17)
  15. $400,000 Settlement in Oklahoma Jail Failure to Protect Suit (p 17)
  16. Oregon Jail Settles Taser Suit for $197,000 (p 18)
  17. Arizona DOC's Endless Isolation of Suspected Gang Member Enjoined (p 18)
  18. TDCJ-ID Must Provide Procedures for Prisoners to Identify Evidence Supporting Grievances (p 20)
  19. $377,500 Awarded in Tennessee Jail Death (p 21)
  20. Ohio Supreme Court Rules Indigent Sex Predator Gets Paid Expert Witness (p 21)
  21. BOP Prisoner Release Public Notification Required Only If Current Offense Qualifies (p 22)
  22. Illegal Strip Searches Cost Chicago Jail $6.8 Million (p 22)
  23. Rape and Racism in Washington Prisons (p 23)
  24. $50,000 Settlement in D.C. Retaliation Suit (p 23)
  25. Wisconsin Jail Settles Escape Lawsuit with Escapee (p 24)
  26. Compelled Attendance at AA/NA Violates Establishment Clause (p 24)
  27. Former CCA Captain and Texas Probation Officer Pleads Guilty (p 25)
  28. Section 2241 May Not Be Used to Challenge BOP Prison Placement (p 25)
  29. Tenth Circuit Discusses Religious Rights in BOP (p 26)
  30. Ohio Prison Supervisors Possibly Liable for Employing Known Racist Guard (p 27)
  31. Eighth Amendment Challenge to California Integrated Yard Policy Is Triable (p 28)
  32. County Supervisors Liable for Indemnifications (p 28)
  33. Cold, Vermin and Sewage in New York Prison May Violate Eighth Amendment (p 29)
  34. News in Brief (p 30)

Bailing Out the Private Prison Industry

The private-prison industry is in trouble. For close to a decade, its business boomed and its stock prices soared because state legislators across the country thought they could look both tough on crime and fiscally conservative if they contracted with private companies to handle the growing multitudes being sent to prison under the new, more severe sentencing laws. But then reality set in: accumulating press reports about gross deficiencies and abuses at private prisons; lawsuits; million-dollar fines. By 2000, not a single state was soliciting new private-prison contracts. Many existing contracts were rolled back or even rescinded. The companies' stock prices went through the floor.

Here was one experiment in the privatization of public services that might have limped to a well-deserved close. But instead, the federal government seems to be rushing to the industry's rescue.

Consider just the problems of the Corrections Corporation of America (CCA), the country's largest private-prison company, over a single 12 month period in 2000-2001:

Ø In August 2000, two prisoners escaped from a CCA prison in Bartlett, Texas. State investigators found that doors had been left unlocked at the facility. No one was watching the closed-circuit TV surveillance monitors. When the prisoners ...

Hawaiian Women Prisoners File Suit Over Sex Abuse, Torture in Oklahoma Private Prison

When the State of Hawaii opted in 1998 to send its female prisoners to a privately run Oklahoma prison, it had no idea what was in store for these women. What ensued over the next three years, according to a lawsuit filed by four Hawaiian women, was a "widespread pattern of inmate sexual assaults" by prison guards, including rape, unwanted sexual advances and torture.

The women are suing the Hawaii Department of Public Safety as well as the Dominion Group, the company that operates the Central Oklahoma Correctional Facility in McCloud. The suit alleges that more than a dozen women were raped or suffered other physical or mental abuse at the facility, where Hawaii continues to send female prisoners. Some of the details of the women's complaints are quite disturbing.

One Kauai woman tells how she was raped by a guard, became pregnant and then was forced to undergo an abortion at a prison medical facility.

Another Kauai woman was subjected to "repeated unwanted sexual contact," which included intercourse with a prison staff member throughout her entire stay at the facility.

Another women reports that she had a sexual relationship with a lieutenant at the prison, but that she ...

Suicides, Staff Negligence Plague Private Arkansas Juvenile Prison

In October 2001, a just-completed state investigation concluded that Houston-based Cornell Company, the private firm that runs Arkansas's Alexander Youth Services Center, was negligent for failing to monitor an at-risk youth who committed suicide. The suicide was the second in less than four months at the facility, and the third since 1997.

The latest suicide occurred on September 15, 2001, when 15 year old Kenneth McClain hanged himself in his cellthe very same cell in which a 16 year old boy hanged himself only months earlier. Both boys were "at-risk" prisoners, meaning a guard was supposed to have been watching them at least every 15 minutes.

But in the most recent case, investigators learned that McClain was left unsupervised for over two hours while staff had a meeting.

"We are tremendously frustrated that we are once again discussing an issue like this with Cornell," Arkansas Department of Human Services spokesman Joe Quinn said. "There is no excuse at all for juveniles not being checked in an appropriate time frame." Quinn labeled the staff's negligence "inexcusable."

As part of the probe, DHS investigator Barabara Ausbrooks viewed several surveillance tapes from the facility. Her report found that not only were ...

From the Editor

Welcome to PLN 's 12th anniversary issue. PLN first started publishing in 1990 and this marks 12 years and 144 consecutive issues. PLN is the longest publishing independent, prisoner-produced magazine in U.S. history. While we have had our ups and downs over the years we have consistently improved the quality of our content, our size and expanded our readership. These are all goals we will strive for in the coming years. However, our accomplishments to date are very much the work of a group of people who have worked hard and selflessly to make PLN happen. Indeed, if it weren't for their efforts there probably would not be a PLN today.

The people who deserve a grateful thank you for keeping PLN going into its thirteenth year include, in no particular order, Hans Sherrer, Allan Parmelee, Don Miniken, Sandy Judd, Thomas Sellman, Jo Wigginton, Linda Novenski, Elizabeth Howard, Virgil Knedlik, Ellen Spertus, Rollin Wright, Dan Axtell, Martin and Rebecca Chaney, and Walter Tillow and the folks at Prompt Press, as well as all of PLN 's writers who provide our content. We also owe many thanks to the lawyers who have provided PLN with counsel on everything ranging ...

Failure to Timely Pay Filing Fee Dismissal Reversed

The Court of Appeals for the Seventh circuit held that a district court erred when it dismissed a prisoner's suit for failure to pay the filing fee in a timely manner. Bernard Beyer, a Wisconsin prisoner held in a private prison in Tennessee, filed suit against city building inspectors. He was assessed a partial filing fee and ordered to pay it within 21 days.

Beyer filed a motion to withdraw his motion to proceed in forma pauperis and instructed Wisconsin prison officials to pay the entire $150 filing fee from his prison release account. Three days after the 21-day time limit had expired; the district court dismissed the suit for failure to prosecute. Beyer filed several motions to reconsider and was also told by Wisconsin prison officials that he could not use his release funds to pay court filing fees in the Eastern District of Wisconsin, only in the Western District. The district court denied the motion.

The appeals court vacated and remanded. The court noted that dismissal is a harsh sanction. "In the absence of contumacious conduct or a clear record of disobeying court orders, it is an abuse of discretion to dismiss without first firing a warning ...

U.S. Cited for Human Rights Violations

( On May 15, 2001, at a human rights conference in Geneva, the United States was denounced for its inhumane and discriminatory practices. Amnesty International and the U.N. Committee Against Torture cited the U.S. for oppressive tactics by both public law enforcement and prison agencies.
Of particular importance to Amnesty International was the impunity with which two unarmed black men were gunned down by police in Los Angeles and New York. In a 46-page report they demanded an end to the brutalizing and shooting of defenseless suspects by police.

A Committee report cited specific abuses in U.S. prisons. In their own words, The committee recommends that the state party abolish electro-shock stun belts and restraint chairs as methods of restraining those in custody. Their use almost invariably leads to breaches of ... the convention." Also listed were the excessive severity of super-max prisons and the dehumanizing effect of chain gangs, especially in public.

In addition, the conference expressed a strong regard for the safety of female prisoners from sexual assault by guards and the practice of holding minors in adult jail facilities. According to the conference report, The committee expresses its concern about the number of cases of police ...

U.S. Cited for Human Rights Violations

On May 15, 2001, at a human rights conference in Geneva, the United States was denounced for its inhumane and discriminatory practices. Amnesty International and the U.N. Committee Against Torture cited the U.S. for oppressive tactics by both public law enforcement and prison agencies.

Of particular importance to Amnesty International was the impunity with which two unarmed black men were gunned down by police in Los Angeles and New York. In a 46-page report they demanded an end to the brutalizing and shooting of defenseless suspects by police.

A Committee report cited specific abuses in U.S. prisons. In their own words, "The committee recommends that the state party abolish electro-shock stun belts and restraint chairs as methods of restraining those in custody. Their use almost invariably leads to breaches of ... the convention." Also listed were the excessive severity of super-max prisons and the dehumanizing effect of chain gangs, especially in public.

In addition, the conference expressed a strong regard for the safety of female prisoners from sexual assault by guards and the practice of holding minors in adult jail facilities. According to the conference report, "The committee expresses its concern about the number of cases of police ...

High Cost of Prison Telephone Calls Goes to Illinois State Court

In a characteristically colorful opinion from Judge Richard Posner, the U.S. Court of Appeals for the Seventh Circuit breathed new life into an otherwise moribund lawsuit where plaintiffs sought relief from the exorbitant charges for collect telephone calls made from Illinois' prisons and jails.

Prisoners, their families, and a public interest law firm brought a 42 U.S.C. §1983 action against the state of Illinois and certain telephone companies where they challenged the practice by which prisons and jails grant to one telephone company the exclusive right to provide prisoner telephone service in exchange for 50 percent of the revenue generated by the service.

Federal and state statutes require telephone companies to file tariffs with the Federal Communications Commission (FCC) and the Illinois Commerce Commission (ICC). The statutes grant the FCC and the ICC exclusive authority to determine and approve the reasonableness of the tariffs. Under the "filed-rate doctrine," a customer cannot ask the court in a civil rights or antitrust action to usurp the authority of the FCC or ICC by invalidating or modifying the approved tariff and rate schedule.

Finding itself in no position to invade the province of the FCC or ICC, the district court ...

Montana Supreme Court Upholds Refusal to Seal Settlement Agreement

The Montana Supreme Court held that prevailing party did not establish that privacy rights of parties outweighed the public's right to know what costs it incurred in a settlement agreement.

Steve Pengra brought suit against Montana, contending that the State's negligent acts and omissions led to the brutal ...

Prison Phone Rate Case Remanded to South Carolina State Court

The United States District Court of South Carolina has remanded to state court a suit by prisoners' family members against Sprint Payphone Services and other communications providers, the State of South Carolina, and the South Carolina Department of Corrections (DOC) and its prisons, alleging that the state illegally entered into payphone contracts with the service providers.

Mildred Fair, Pamela Simpson, Jacqueline Anderson, Rhonda Lunsford, and Walter Fair are family members or friends of South Carolina prisoners who have accepted telephone calls from prisoners. Prisoners have no choice of telephone service provider, as DOC contracts for the services. Plaintiffs filed suit under various South Carolina statutes alleging that the contracts were illegal because the rates are unlawful and uncompetitive and the defendants receive kickbacks from the service providers. The defendants, citing the Telecommunications Act of 1996, 47 U.S.C. §276(b), and a federal jurisdictional statute, 28 U.S.C. §1441, moved for removal of the case to federal court. The State court granted the motion, and Plaintiffs moved the district court to remand.

The district court discussed statutory and case law causes for removal from state to federal court. The court then examined the defendants' asserted cause of federal ...

Wisconsin Ban on Sexually Explicit Materials Unconstitutional

The Federal District Court for the Western District of Wisconsin has denied a motion for summary judgment finding the Wisconsin Department of Corrections' (WDOC) ban on sexually explicit materials violated prisoners' First Amendment freedom of speech and Fourteenth Amendment due process rights. The Court later approved a class action settlement ...

Grievance Retaliation States Claim

The court of appeals for the Eighth circuit held that a district court erred when it dismissed an Arkansas prisoner's claim that he was subjected to false disciplinary charges in retaliation for filing grievances against a prison employee. The court upheld the dismissal of a claim challenging the loss of good time credits where the infraction was supported by independent evidence of guilt.

Walter Farver, an Arkansas state prison, filed suit claiming a prison guard retaliated against him by filing two false disciplinary charges against him because he had filed grievances against him. Farver also claimed he was subjected to urine tests in retaliation for filing grievances, at least one of the tests showed drug use for which he was infracted, found guilty and punished. The district court dismissed the complaint for failing to state a claim under Federal Rule of Civil Procedure (FRCP) 12(b)(6).

The court of appeals affirmed in part, reversed in part and remanded. The court upheld dismissal of the urine test claim because Farver was found guilty of drug use and lost good time credits that had not been restored administratively or by any court. See: Edwards v. Balisok , 117 S.Ct. 1584 ...

Oregon Passes Pay-to-Stay Law

The 2001 Oregon Legislature unanimously passed Senate Bill (SB) 183, authorizing, but not requiring, the Oregon Department (ODOC) to assess prisoners for costs associated with their imprisonment, including "but . . . not limited to, such items as medical care, room, board, administrative costs and other costs not otherwise excluded by law."

SB 183 amends ORS 179.620(1) to provide that a "person and the personal estate of the person, or a decedent's estate, is liable for the full cost of care" and Section (2) of that statute provides that: "while the person is liable for the full cost of care, the maximum amount a person is required to pay toward the full cost of care shall be determined according to the person's ability to pay." ORS 179.701 authorizes the ODOC to determine "the cost-of-care rates for a person."

In determining a prisoner's ability to pay, SB 183 requires the prisoner to "provide all financial information requested . . . that is necessary to determine the person's ability to pay."

It also authorizes the ODOC to "use any information available to the agency, including information provided by the Department of Revenue from personal income tax returns . . . and elderly rental assistance ...

New York Assault and Medical Case Settled for $5,000

On August 28, 2001, New York state prison officials agreed to pay $5,000.00 to settle a prisoner's lawsuit that he was beaten by prison guards and then denied medical care. In 1993, prisoner Easton Beckford, who is also wheelchair bound, was attacked and beaten by guards at ...

$400,000 Settlement in Oklahoma Jail Failure to Protect Suit

On April 19, 2001, the insurer for the Garfield county jail in Oklahoma agreed to pay $400,000 to a former jail prisoner who was attacked and beaten by his cellmate. On April 26, 1998, Larry Thomas, then 58, was imprisoned in the Garfield county jail for five days to ...

Oregon Jail Settles Taser Suit for $197,000

In December 2000, the Clackamas county jail in Oregon settled a lawsuit with Stephen J. Thom for $197,000. On July 24, 2000, Thom, who suffered brain damage in a 1981 accident, was drunk and brought to the jail's booking section. While he was handcuffed, jail sergeant Daniel McClean ...

Arizona DOC's Endless Isolation of Suspected Gang Member Enjoined

Afederal District Court in Arizona recently enjoined Arizona Department of Corrections (ADOC) officials from indefinitely isolating a prisoner whom they suspect to be a gang member.

Mark Koch, an Arizona prisoner and successful prison litigator of long standing, was placed in solitary confinement (SMU II) in 1996 at the Florence, Arizona prison where he is incarcerated. He was so confined after ADOC officials labeled him a gang member.

The only evidence that Koch might be a gang member was (1) a 1981 photo taken at a prison rodeo showing Koch with purportedly known Aryan Brotherhood (AB) members; (2) Koch was purportedly seen speaking to AB members; and (3) two lists of names confiscated from purported AB members, which included Koch's name. On this evidence, Koch has been in solitary confinement for five and a half years. This lawsuit ensued.

After three days of trial in April 2001, all defendants were granted qualified immunity from monetary damages based on Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). This was because there was no precedent establishing that Koch's long-term isolation for being a suspected gang-member would violate the U.S. Constitution.

The court next considered Koch's request for ...

TDCJ-ID Must Provide Procedures for Prisoners to Identify Evidence Supporting Grievances

by Matthew T. Clarke

A Texas court of appeals has ruled that the Texas prison system is required by law to provide procedures for a prisoner to identify evidence to substantiate the prisoner's claim.

Charles William Ingram, Jr., M.D., a Texas state prisoner, sued Wayne Scott, the Executive Director of the Texas Department of Criminal justice (TDCJ), alleging that Scott was violating Section. 501.008 of the Texas Government Code which governs TJCJ's development of a system to handle prisoner grievances. Ingram asked that the district court issue a writ of mandamus ordering Scott to comply with Section 501.008. Both Scott and Ingram filed motions for summary judgment. The district court granted Scott's and denied Ingram's. Ingram appealed.

The Court of Appeals of Texas at Austin held that Scott failed to establish the affirmative defenses of official and sovereign immunity raised in his motion for summary judgment. Furthermore, "the defense of official immunity is inapplicable here, where Ingram is seeking to compel Scott to perform a nondiscretionary act. Section 501.008 requires that the Department's grievance system must provide procedures ... for an inmate to identify evidence to substantiate the inmate's claim' Tex ...

$377,500 Awarded in Tennessee Jail Death

In September 2001, a federal jury in Memphis, Tennessee, awarded $377,500 in damages to the estate of a mentally ill jail prisoner killed by guards. In November 1996, Calvin Shaw, a paranoid schizophrenic, was arrested on sexual assault charges and imprisoned at the Davidson county jail. Three days later ...

Ohio Supreme Court Rules Indigent Sex Predator Gets Paid Expert Witness

The Ohio Supreme Court has held that an indigent defendant in a sexual predator classification hearing is entitled to an expert witness at state expense "if the court determines, within its sound discretion, that such services are reasonably necessary to determine whether the offender is likely to engage in the future in one or more sexually oriented offenses within the meaning of [Ohio's Sexual Predator Law]." The decision affirms and modifies an appeals court decision overturning a Cuyahoga County Court of Common Pleas' finding that an Ohio prisoner is a sexual predator.

Lewis Eppinger was convicted at trial in 1989 of rape, kidnapping, and assault. In 1997, at a sexual predator classification hearing, Eppinger's counsel filed a motion for a psychological/psychiatric expert to be appointed to evaluate Eppinger to see if he met the criteria for a sexual predator, as defined by Ohio Revised Code (R.C.) §2950.01(E). The trial judge denied the motion, saying, in part, "the Court denies the motion ... and will take the testimony of a gypsy over those people in attempting to predict the future conduct of an individual." The court also denied defense counsel opportunity to cross-examine or confront witnesses ...

BOP Prisoner Release Public Notification Required Only If Current Offense Qualifies

by John E. Dannenburg
( The Fifth Circuit US Court of Appeals held that the statute requiring public notification of the release of federal prisoners convicted of drug trafficking or a crime of violence applied only to the current conviction, not to the prisoner's past record.

Richard Henrikson was finishing a 70 month BOP (Bureau of Prisons) term in Stafford, Texas for possession of an unregistered firearm (26 USC §5861(d)), which by its own terms, is neither a drug trafficking offense nor a violent crime. Nonetheless, BOP notified Henrikson it intended to make public notification of his pending release, pursuant to 18 USC §4042(b) a statutory requirement for a prisoner convicted of such offensesbecause he had a prior conviction of an admittedly violent crime: arson. The US District Court, N.D. Texas, rejected his habeas petition [treated here as a request for declaratory judgment under 28 USC §2201, because he was not challenging either the fact or duration of his confinement], holding that either a past or a current conviction of a qualifying offense triggered the notification requirement.

The district court had relied upon BOP's internal administrative agency interpretation of its own §4042(b)-based notification regulation ...

Illegal Strip Searches Cost Chicago Jail $6.8 Million

In July 2001, the Cook County, Illinois Board of Supervisors unanimously agreed to end a five-year long class-action suit brought by female prisoners who alleged that the strip-searches they were subjected to at the Cook County jail were unconstitutional. The Board approved a $6.8 million settlement which could be ...

Rape and Racism in Washington Prisons

The Second Division of the Court of Appeals of Washington overturned a jury verdict against the Washington Department of Corrections (DOC) in which a prison sergeant sued DOC for racially discriminatory treatment against him.

Geronimo Subia is a male prison sergeant of Native American and Hispanic descent. Since 1988, Subia has been employed by DOC at the Washington Correctional Center for Women (WCCW). In 1994, Subia was accused of raping a female prisoner in the "Special Needs Unit" where he worked. The prisoner passed a polygraph examination of her charges, and Subia was placed on administrative leave with pay and benefits, pending an investigation. Subia returned to duty three weeks later after the investigation failed to substantiate the charges. Subia was subsequently promoted, repeatedly commended, and given a choice job assignment.

Subia nevertheless sued DOC under Washington's Law Against Discrimination (WLAD), RCW Chapter 49.60, claiming that similarly accused Caucasian guards were not placed on administrative leave. At trial, Subia convinced a jury that DOC discriminated against him by showing that Caucasian guards did receive preferential treatment in sexual misconduct investigations as compared to minority guards, that he was being targeted by WCCW Investigator J. R. Hausner and Hausner ...

$50,000 Settlement in D.C. Retaliation Suit

In the January 2001, issue of PLN we reported Garcia v. District of Columbia, 56 F. Supp.2d 1 (D DC 1998) in which the district court denied prison guards' motion for summary judgment. District of Columbia prisoners Freda Garcia, Lawrence Caldwell and Antonio Tirado filed suit claiming that prison ...

Wisconsin Jail Settles Escape Lawsuit with Escapee

In September, 2001, Wausau Insurance, the insurer for the city of Shawano, Wisconsin, agreed to pay Nicholas Bishop, 22, $5,000 to settle a lawsuit Bishop had filed against the city in federal court in Madison.

The lawsuit claimed that two city policemen negligently allowed Bishop to escape from custody ...

Compelled Attendance at AA/NA Violates Establishment Clause

Compelled Attendance At AA/NA Violates Establishment Clause

The Washington Court of Appeals has held that it violates the Establishment Clause of the First Amendment for the DOC to force a prisoner to attend AA/NA meetings as a part of its chemical dependency treatment program. However, because the petitioner in the case before it was only required to participate in "AA/NA or another selfhelp group," the court held that the Establishment Clause was not violated.

In 1994, Ricardo Garcia was sentenced to seven years and six months for a conviction of first degree rape, and was subsequently incarcerated at the Airway Heights Corrections Center in Washington. In November of 1997, Garcia was screened by a DOC chemical dependency counselor and was found to be chemically dependent. The counselor recommended a course of treatment that required Garcia, among other things, to attend AA meetings. Garcia consented to this course of treatment in writing and, thereafter, it became a mandatory programming assignment for him.

In the Spring of 1998, Garcia refused to participate in any of the treatment programming and was infracted for refusing to participate in a mandatory program assignment. At two separate disciplinary hearings Garcia lost a total ...

Former CCA Captain and Texas Probation Officer Pleads Guilty

On October 25, 2001, Jason Driskell, 27, a former captain at the Corrections Corporation of America (CCA) operated Whiteville Correctional Facility (WCF) in Tennessee, pleaded guilty to obstruction of justice charges in federal court. Driskell admitted that in 1999 he struck and injured prisoner Sammy Everett at the prison, and then persuaded a guard to write a report claiming the attack was in self-defense.

CCA, the largest private prison company, operates the WCF, which houses mostly prisoners from Wisconsin.

After the attack, Driskell moved to Lovelady, Texas, where he became a probation officer. He was scheduled for sentencing on January 18, 2002.

Source: The Commercial Appeal

Section 2241 May Not Be Used to Challenge BOP Prison Placement

by Matthew T. Clarke

The Tenth Circuit court of appeals has held that a federal prisoner may not use 28 U.S.C. § 2241 to challenge placement in a certain prison or the conditions in that prison.

Christopher John Boyce, a federal prisoner, filed a habeas corpus action under 28 U.S.C, § 2241 challenging his placement in the federal supermax at Florence, Colorado. Boyce received a 40 year sentence after being convicted of espionage for his part as "Falcon" of "Falcon and Snowman" fame. Initially incarcerated in the FCI at Lompoc, California, he escaped and eluded recapture for a year and a half. Convicted of the escape and sixteen armed robberies he committed while an escapee, he was reincarcerated at the USP in Leavenworth, Kansas, a level five facility. After three members of the Aryan Brotherhood attacked him, Boyce was transferred to the USP at Marion, Illinois, a level six facility. Six years later, Boyce was transferred to Oak Park Heights (OPH), the highest security Minnesota state prison.

While at OPH, Boyce wrote an article advocating the death penalty for prisoners convicted of murder while in prison and detailing conditions of confinement at OPH. The article was published in ...

Tenth Circuit Discusses Religious Rights in BOP

Yu Kikumura is a federal political prisoner and member of the Japanese Red Army, who has been greatly harassed by authorities during his incarceration. His religious practices mix Buddhism and Christianity. Beginning in 1997, Kikumura tried to obtain pastoral visits from Reverend C. Harold Rickard, a retired United Methodist minister and former missionary to Japan, Kikumura's native country.

Federal Bureau of Prisons (BOP) Warden John Hurley and Associate Warden E. S. Gallegos, interpreting BOP rules on pastoral visits, denied Reverend Rickard visiting rights because (1) Rickard, not Kikumura, initiated the request to BOP for pastoral visits (after corresponding with Kikumura, who replied that he wanted Richard's visits), and (2) Kikumura, for dietary reasons, had registered as Buddhist, not Christian. Hurley and Gallegos stated, during Kikumura's exhaustion of administrative appeals, that pastoral visits had to come from ministers of the same faith as the prisoner. Hurley also cited unspecified "security concerns" in denying the visits. Kikumura is housed in the Administrative Detention facility (ADX) in Florence, Colorado, the BOP's most secure prison.

Having exhausted his administrative appeals, Kikumura filed suit under 42 U.S.C. §1983 in Colorado Federal District Court, claiming violation of religious liberties under ...

Ohio Prison Supervisors Possibly Liable for Employing Known Racist Guard

The Sixth Circuit Court of Appeals has reversed a district court's grant of summary judgment to Ohio prison officials and remanded for trial a case involving alleged official indifference to the actions of a known racist guard. The appeals court held that, given the number of complaints against the guard and the fact pattern of his racist behavior against African-American prisoners and staff, prison officials could be held liable for maintaining his employment.

David Scott was a white prison guard at the Southern Ohio Correctional Facility (SOCF) and the nephew of a SOCF guard taken hostage in the 1993 Easter Sunday SOCF riot. He was employed at SOCF from December 16, 1993, until June 26, 1996, when he was fired for a May 16, 1996, incident in which he told a racist joke over the prison intercom system. In that time period, according to case records, approximately forty complaints or investigations against Scott involving verbal abuse, racial slurs, filing of false reports, unexplained injury of prisoners, and excessive use of force were filed.

Scott was never disciplined for any of these incidents until he was fired for the joke incident, despite a finding by an institutional inspector to the ...

Eighth Amendment Challenge to California Integrated Yard Policy Is Triable

In a California prisoner suit claiming cruel and unusual punishment for the prison's "integrated yard" policy, the Ninth Circuit US Court of Appeals ruled that the factual question presented could proceed to trial, thus rejecting prison defendants' claims of qualified immunity.

AfricanAmerican prisoner George Robinson had twice, while in administrative segregation at Calipatria State Prison, been placed in an exercise yard where he was allegedly attacked by members of the "Sureños" gang, whom he describes as "foot soldiers for the Mexican Mafia". His claims are that on at least two occasions, California prison guards, following the Department of Corrections' "integrated yard" policy, placed him on the ad/seg yard with Sureños members, knowing that the prisoners would be injured in the predictable race/gang based fight. Although the defendant guards denied they arranged such violent encounters, Robinson sued under 42 USC § 1983, claiming violation of his Eighth Amendment rights to be free from cruel and unusual punishment, which included the repeated assaults, tear gassing and being shot with wooden blocks.

Aside from denying that they abetted such fighting and injury through their "integrated yard" policy, the defendant guards asserted a qualified immunity defense. However, their motion for summary judgment ...

County Supervisors Liable for Indemnifications

County Supervisors Liable For Indemnifications

by John E. Dannenberg

The Los Angeles (LA), California County Board of Supervisors made official decisions, and thus a policy, to indemnify their county sheriffs so as to willfully (i.e., in bad faith) protect the sheriffs from punitive damages even after they had admittedly acted with deliberate indifference to the constitutional rights of the plaintiffs. The Ninth Circuit US Court of Appeals held that the Supervisors were themselves liable for such bad faith indemnification decisions and rejected the Supervisors' defense of "qualified immunity" from a punitive damages claim against them for their malevolent policy-making.

Rafael Navarro led a class action 42 USC §1983 civil rights suit against LA County Sheriff Sherman Block and the individual members of the LA County Board of Supervisors to recover punitive damages that plaintiffs were entitled to but for the Supervisors' post-damage-award decision to retrospectively indemnify the Sheriff's willful, reckless or deliberately indifferent violation of the plaintiff class' constitutional rights. Thus, although the Sheriff was apparently guilty of such misdeeds, the Supervisors were alleged to have acted in bad faith after the award to prevent plaintiffs' recovery of already adjudicated punitive damages. The Supervisors, in turn, then erected ...

Cold, Vermin and Sewage in New York Prison May Violate Eighth Amendment

by John E. Dannenberg

A New York state prisoner who had been subjected to inhumane and unsanitary living conditions was found by the Second Circuit US Court of Appeals to have stated a claim under 42 USC §1983 for violation of his Eighth Amendment rights to be free from cruel and unusual punishment. The court limited any liability to just those actors who had personal involvement in his claims. Separately, the court ruled that a disciplinary hearing determination based solely upon one confidential informant (CI) satisfied federal due process guarantees, because there was "some evidence" of the informant's credibility.

New York State Auburn Correctional Facility prisoner Kenneth Gaston sued prison authorities ranging from line guards up to and including the Commissioner of Corrections under § 1983, challenging both the propriety of his disciplinary conviction as well as the conditions of confinement in the resulting one year of punitive segregation.

The disciplinary charge was that Gaston had organized and participated in a food strike at Auburn in 1990. He claimed that he had been in his cell during the strike, was not involved and had no personal knowledge as to its organization or execution. But a CI said Gaston was the ...

News in Brief

California: On December 12, 2001, Don Lanier Jr., 34, a guard at the Wasco State Prison and a karate instructor, was sentenced to nine months in the Kern county jail after pleading guilty to unlawful intercourse with a minor. The charges stem from Lanier having consensual sex with a 15-year-old female karate student. Lanier received the light sentence after successfully arguing to judge Stephen Gildner that he had lost his job and the respect of the community.

California: On February 14, 2002, a Los Angeles federal grand jury capped a three year investigation into the Nazi Low Riders prison gang by indicting 12 members of the group on charges of murder, robbery, extortion, drug trafficking, witness intimidation, racketeering and attempted murder. Those indicted include: Joseph Hayes, 38; Joseph Lowery, 28; Michael Bridge, 34; Brian Roberg, 30; Jeffrey Langenhorst, 39; Ty Fowles, 34; William Richie, 29; James Mowatt, 39; Robert Baltimore, 32; James Prescott, 28; Brian Johnston, 25 and Jennifer D'Anna, 28. Bridge and Baltimore were also charged with murdering prisoner Karl Hennings, Sr. at the Devore State Prison in 1996 and could receive the death penalty if convicted.

California: On February 3, 2002, 50 prisoners at the Riverside County ...

 

Federal Prison Handbook

 



 

Prisoner Education Guide side

 



 

Federal Prison Handbook

 



 


 

Disciplinary Self-Help Litigation Manual