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Prisoner Education Guide

Prison Legal News: June, 2002

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Volume 13, Number 6

In this issue:

  1. Collateral Damage: The Children of Prisoners (p 1)
  2. Oregon Bulk Mail Ban Struck Down Again (p 5)
  3. From the Editor (p 6)
  4. Prisoner Killed in California Prison (p 7)
  5. $525,000 Paid in California Prisoner Beating Death (p 7)
  6. Habeas Hints: Post Conviction Relief (p 8)
  7. Book Review: The Prisons by Maggie Jaffe (p 10)
  8. Dominican Women Prisoners Strike for Conjugal Visits (p 10)
  9. U.S. Supreme Court Holds Warrantless Probationary Searches Are Valid (p 11)
  10. The Death Penalty in the U.S.A. -- Past, Present, and Future (p 12)
  11. $540,000 Settlement in Minnesota Jail Beating (p 13)
  12. $540,000 Settlement in Minnesota Jail Beating (p 14)
  13. Ex-Ohio Sheriff's Deputy Wins $650,000 Verdict Against CMS for Prisoner Escape (p 15)
  14. Two Federal Courts Grant Injunction for HCV Treatment (p 16)
  15. U.S. Supreme Court: Administrative Exhaustion Required for All Prisoner Section 1983 Suits (p 17)
  16. Summary Judgment Denied in Ohio Jail Booking Fee Challenge (p 18)
  17. U.S. Supreme Court: Qualified Immunity Determination Must Precede Trial on Merits (p 19)
  18. $1,500 Awarded in New York Slapping Case (p 20)
  19. Punch & Jurists: Criminal Law News You Can Use (p 21)
  20. California Jury Awards $1 Million in Jail Rape (p 21)
  21. Disciplinary Board Must Assess Confidential Informant's Reliability (p 22)
  22. Third Circuit Vacates $300,000 Beating Award, Orders New Trial (p 22)
  23. New Mexico Caps High Telephone Rates (p 23)
  24. Three Arkansas Guards Sentenced in Beating (p 23)
  25. Washington Infraction Invalid Where No Notice of Prohibited Conduct Given (p 24)
  26. ADA/RA Suit for Sign Language Interpreters Proceeds for Prospective Injunctive Relief (p 25)
  27. Forced AA/NA for Parolee Defeats Qualified Immunity (p 26)
  28. Tenth Circuit Vacates Religious Diet Awards Under PLRA Physical Injury Rule (p 26)
  29. TDCJ Not Immune from Suit in Medical Malpractice Death Case (p 27)
  30. California Jail Settles Rape Case for $95,000 (p 27)
  31. Denial of Grievance Forms Is Denial of Remedy (p 28)
  32. Jail Policy to Not Segregate Gangs Does Not Violate Constitution (p 28)
  33. Texas Appeals Court Grants Prisoner Mandamus on Discovery (p 29)
  34. Complaints Must Be Concise, To the Point (p 29)
  35. News in Brief (p 30)
  36. California Guards Bust Budget (p 32)

Collateral Damage: The Children of Prisoners

Carlos Kelly was six years old when, in December of 1991, his mother, Caridad, was arrested by federal agents in Florida for conspiracy to distribute cocaine.

"I remember it was, like, me and my stepbrothers and sisters, we was all gathered in the playroom," says Carlos, now 16. "I told my mom that the Nintendo was brokethis is what I remember the mostI asked my mom if she could get us a new one. She went out to get the new Nintendo, and she never came back."

Caridad and her husband ran a small travel agency and money wiring business in Tampa near their home. She stopped by the office on her way to the store. "I was at work," she recalls. "It was right before, the week before Christmas. I wanted to go to Toys R Us, I remember; I wanted to get Carlos a Nintendo. I wanted to close up my business. My accountant and my husband were sitting there getting the daily deposit ready. I saw all these people coming in from every doorall these people with guns everywhere. I thought it was a holdup at first. They hooded us and took us away in separate cars ...

Oregon Bulk Mail Ban Struck Down Again

The Ninth Circuit Court of Appeals held that a rule of the Oregon Department of Corrections (ODOC) prohibiting prisoners from receiving bulk rate, third and fourth-class mail, is unconstitutional, as applied to pre-paid, for-profit, subscription publications. The Court also held that a rule authorizing the rejection of mail that does not bear the sender's complete name and return address and/or the prisoner's committed name and identification number on the front of the envelope "passes constitutional muster under the four-part Turner test."

ODOC prisoner Patrick Morrison brought suit against prison officials, arguing that OAR 291-131-025(6), which prohibits prisoners from receiving bulk rate, third, and fourth class mail was unconstitutional because it prevented "him from receiving his pre-paid subscription to Montana Outdoors magazine, a for-profit, subscription publication, which is typically mailed bulk rate, third, or fourth class." Morrison also challenged OAR 291-131-025(1) which prohibits mail that does not bear the sender's complete name and return address, and/or the prisoner's committed name and identification number on the front of the envelope.

The district court granted prison officials' motion for summary judgment, finding that the challenged ODOC mail rules "are constitutionally appropriate" and Morrison appealed.

The ...

From the Editor

This month's cover story examines the effects of mass imprisonment on the children of prisoners. All too often it is forgotten that prisoners have family members and the impact of penal policies on these families is largely ignored. Just as "family values" has served as a cover for a war on women and children, "tough on crime" policies, naked greed and indifference have served as a means to further alienate and decimate the family and community structures of prisoners. This ranges from the policy of locating prisons in rural areas far from the homes most prisoners come from, to transfer policies of keeping prisoners far from their homes even if there are nearby prisons, to outrageous phone rates for those prisoners who do want to stay in touch with their families once they are moved to faraway prisons (or transferred to another state entirely) and the steady cutback of visiting times and harshening of the few visits that do take place. In future issues of PLN we hope to cover these issues at greater length.

PLN 's next book project, Prison Nation: The Warehousing of America's Poor is steadily moving to completion, and if all goes well will ...

Prisoner Killed in California Prison

On the morning of Sept. 29, 2001, after his very first night in prison, Gary Avila was found dead in his cell, apparently strangled by his cellmate. Inside the cell Paul Posada paced nervously and muttered to himself. "Yeah, I did it," he allegedly confessed to a prison lieutenant. "He messed up."

Avila, just 18 when he was sent to California's Wasco state prison, was a first time offender. He had been sentenced to two years for being a gang member in possession of a firearm, a relatively minor offense by California prison standards.

By contrast, Avila's cellmate, Paul Posada, was a violent, antisocial, career criminal with a long documented history of severe mental illness. He was also three inches taller than Avila and outweighed him by 40 pounds. Posada had just returned to prison from Kern County Jail where he was sentenced to an additional eight years for spitting in a guard's face while at
Tehachapi state prison.

A court ordered analysis done just two months before Posada's return to Wasco characterized him as "aggressive, paranoid, antisocial, explosive, schizoid, and depressive."
Posada also reportedly told mental health workers that he eats his own excrement and ...

$525,000 Paid in California Prisoner Beating Death

In early October, 2001, the State of California agreed to pay $525,000 to the parents of a Corcoran State Prison prisoner who was killed by another prisoner in the exercise yard.

James Kevin Mahoney, Jr., who was serving a life term without parole for murder, was beaten and strangled ...

Habeas Hints: Post Conviction Relief

This column is intended to provide habeas hints for prisoners who are considering or handling habeas corpus petitions as their own attorneys in propia persona. The focus of the column is habeas corpus practice under the AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.


Many pro pers have a "one size fits all" approach to briefing of habeas claims, so that their briefs or points and authorities look the same for whatever stage of the habeas process they happen to be in. I recommend instead an approach that tailors the briefing of the claim to the specific and changing demands which operate at each stage of the habeas process.


Appeal following conviction and sentence.

Appellate lawyers are trained to use a briefing style which I call "plenary briefing". Plenary briefing contains an introductory "Statement of the Case" (a straightforward and non-argumentative history of the proceedings with references to the Clerk's Transcript), a "Statement of Facts" (an accurate presentation of the facts, presented with the most favorable spin but without misrepresentation or omission of critical facts, cited to the Reporter's Transcript), a "Legal Argument" section ...

Book Review: The Prisons by Maggie Jaffe

(Cedar Hill Publications, 92 pages, paper, $15.00)

Reviewed by Michael McIrvin

The Prisons, Maggie Jaffe's most recent poetry collection is hard to read, as the bleakest truths often are. The book is also hard to put down for the same reason, because this is the unexpurgated truth of the American prison system. These poems leave your nerve endings singed by the recognition that the collective American psyche has not merely warped unto madness, which the penal system represents at multiple levels, but that we have rationalized that madness.

Which is not to suggest that Jaffe preaches to the reader. The Prisons is a collage: artwork by prisoners (all bars and other inmates); a letter from the Justice Department acknowledging the author's protest of her prisoner/lover's treatment in quintessential bureaucracy-speak; quotations ("The more corrupt the Republic, the more numerous its laws" - Tacitus); a bizarre section of California Penal Code outlawing "salacious tattoos" for prison visitors; and the author's powerful poems about prisoners and their visiting loved ones, the bleakness of prison life, the capricious power of the state, and the suppression of art and artists through history.

Prison, Jaffe tells us, is "A machine invented ...

Dominican Women Prisoners Strike for Conjugal Visits

In November of 2001, women prisoners in the Najayo public prison in San Cristóbal on the southern coast of the Dominican Republic, carried out a protest during which they set fire to and burned all the books, doors and shelving in the prison library and furniture, television sets, mattresses, sheets and other utensils in their section of the prison. One woman was badly burned and taken to the hospital; others were affected by smoke and gas. After three units of firefighters fought the blaze for over two hours police were called in to reestablish order. The protest had been the women's response to the construction of a wall isolating their section of the prison from that of the men. Two days later the women began the protest again; this time no one was reported injured.

The position taken by the court and prison authorities was that the women were simply upset because they would no longer be able to have sexual relations with their counterparts in the men's section. They allege that the men paid for the women's "services" and, as a result, a sort of generalized disorder surrounded sexual activity within the prison. Six women had ...

U.S. Supreme Court Holds Warrantless Probationary Searches Are Valid

The United States Supreme Court held in a unanimous decision the warrantless search of a probationer supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment.

Mark Knights was sentenced to probation for a drug offense, after signing the probation order which imposed a condition that he submit to a search of his person, property, place of residence, vehicle or personal effects at anytime, with or without a warrant.

Three days after Knights was placed on probation a Pacific Gas & Electric (PG&E) power transformer and adjacent Pacific Bell telecommunications vault were pried open and set on fire, causing approximately $1.5 million in damage. This was the latest in more than 30 such acts for which Knights and his friend, Steven Simoneau, had long been the focus of suspicion.

Just weeks before the arson, a sheriff's deputy stopped Knights and Simoneau near a PG&E gas line and observed pipes and gasoline in the vehicle. After the arson, a deputy drove by Knights' residence and felt the hood of Simoneau's truck, which was warm. A detective set up surveillance of Knights' apartment. At 3:10 a.m ...

The Death Penalty in the U.S.A. -- Past, Present, and Future

The Death Penalty in the U.S.A. - Past, Present, and Future

Book Reviews by Roger Hummel

Condemned: Inside the Sing Sing Death House by Scott Christianson. New York University Press, New York. 184 pages (illustrated), $24.95, cloth.

Beginning late in the nineteenth
century, New York State boasted electric chairs at three state prisons. For more than 70 years, New York electrocuted 1,352 prisoners until 1963 when the Empire State declared the death penalty to be unconstitutional. Almost half of those 1,352 executions were performed at Sing Sing.

Using recently and reluctantly released state records, investigative reporter Scott Christianson now takes us on a poignant photographic tour of New York's notorious Sing Sing prison and death house.

Built in 1825 on the banks of the Hudson River 35 miles north of New York City, Sing Sing electrocuted 606 men and eight women between 1891 and 1963. The first use of Sing Sing's electric chair occurred on July 7, 1891; the last electrocution, and the last execution to be carried out in New York State during the twentieth century, took place on August 15, 1963. Thereafter, Sing Sing's electric chair was consigned to a museum ...

$540,000 Settlement in Minnesota Jail Beating

In October 2001, Hennepin County, Minnesota, agreed to pay $540,000 to settle a brutality suit against the county jail. It is believed to be the largest brutality settlement in county history. On September 4, 2000, Derek Martin, 43, was arrested on suspicion of violating a restraining order by Brooklyn ...

$540,000 Settlement in Minnesota Jail Beating

In October 2001, Hennepin County, Minnesota, agreed to pay $540,000 to settle a brutality suit against the county jail. It is believed to be the largest brutality settlement in county history. On September 4, 2000, Derek Martin, 43, was arrested on suspicion of violating a restraining order by Brooklyn Center police. Martin was taken to the Hennepin county jail.

The Hennepin county sheriff's office claimed that Martin was "uncooperative." But a jail video showed a very cooperative Martin being led into the jail; guards putting a bag over his head and then being taken into a room outside of camera range where screams and moans are heard. Jail guards then calmly emerged from the room.

Martin claimed he was beaten so badly that his hip was fractured and dislocated. Jail staff claimed they used a procedure of putting a prisoner's legs behind him to immobilize the prisoner "to ensure staff safety."

After having his hip broken by jail guards, Martin had to wait 25 hours before being taken to a hospital to have his hip put back into place and receive treatment. Martin later filed suit in federal district court. Rather than take the case to trial ...

Ex-Ohio Sheriff's Deputy Wins $650,000 Verdict Against CMS for Prisoner Escape

Franklin County (Ohio) prisoner Alva Campbell was escorted to court in April 1997 while in his wheelchair, unable to walk. He was not handcuffed or otherwise restrained and was being guarded only by then-Franklin County Deputy Sheriff M. Teresa Harrison. After all, there was no need for restraints or additional ...

Two Federal Courts Grant Injunction for HCV Treatment

A federal court in Oklahoma issued an unpublished opinion granting a preliminary injunction ordering prison officials to provide prescribed medications for a prisoner's liver disease.

Another federal court in Ohio issued an unpublished opinion granting a preliminary injunction ordering prison officials to provide a prisoner with an evaluation for a liver transplant. Oklahoma prisoner Arthur Alloway brought suit against prison officials alleging the denial of treatment for his liver disease.

He also filed an emergency motion for a preliminary injunction. The Magistrate Judge entered Findings and Recommendations that Alloway be given a complete medical examination by an independent medical specialist and that prison officials submit the specialist's conclusions and recommendations to the court. The court affirmed and adopted the Magistrate Judge's Findings and Recommendations.

The independent physician recommended that Alloway "be given 200 mg. OxyContin three times a day as needed for pain management, along with Milk Thistle (140 mg. 3 times a day) and Vitamin C (10,000 mg. 3 times a day for 30 days, then 1,000 mg. daily) for his liver disease. Plaintiff's family was to provide the Milk Thistle and Vitamin C, as they had done at his previous facility." However ...

U.S. Supreme Court: Administrative Exhaustion Required for All Prisoner Section 1983 Suits

by John E. Dannenberg

The US Supreme Court ruled that under the Prison Litigation Reform Act (PLRA), exhaustion of administrative remedies is required in all prisoner civil rights suits pertaining to prison life, regardless of whether they involve only general prison circumstances or whether they allege excessive force or some other express wrong on the part of prison personnel.

Ronald Nussle is a prisoner at Cheshire Correctional Institution (CCI) in Connecticut. Nussle, whom CCI prison guards thought to be a friend of the governor, complained that he was subjected to continuous harassment and intimidation while the guards were themselves embroiled in a contentious labor dispute.

Things got worse on June 15, 1996 when Porter and several other guards ordered Nussle to exit his cell, whereupon they put him on the wall, struck him with their hands, kneed him in the back and pulled his hair. The guards threatened to kill Nussle if he reported the beating.

Nussle did not file a grievance that was due within 30 days by prison rules. Instead, a scant three days before Connecticut's three year statute of limitations expired in June 1999, he filed a 42 U.S.C. §1983 suit alleging cruel and ...

Summary Judgment Denied in Ohio Jail Booking Fee Challenge

In a case of first impression, an Ohio Federal District Court denied summary judgment to the Hamilton County [Ohio] Sheriff and the Hamilton County Board of Commissioners in a former jail prisoner's challenge to Hamilton County's assessment of "book-in fees" to pre-trial detainees. In its opinion, the court found that too many material facts were at issue to grant summary judgment. However, based on the available record, the court preliminarily concluded that the county's "Pay for Stay" program is likely an unconstitutional application of the authorizing statute, Ohio Revised Code (ORC) §341.06, and further, that ORC §341.06 itself may be facially unconstitutional.

Anthony Allen was arrested July 18, 1999, on an outstanding felony forgery warrant. Though the warrant correctly identified Mr. Allen by name and social security number, it was erroneously issued. During booking at the Hamilton County Justice Center (HCJC), Mr. Allen had $100 cash. HCJC placed $70 in Allen's property inventory and applied $30 to pay the cost of his "book-in fees."

Paying booking fees to HCJC was required under Hamilton County's "Pay for Stay" program, which the county, under ORC §341.06, enacted in 1998. Allen was compelled by HCJC ...

U.S. Supreme Court: Qualified Immunity Determination Must Precede Trial on Merits

U.S. Supreme Court: Qualified Immunity Determination Must Precede Trial On Merits

by John E. Dannenberg

The US Supreme Court held in a suit against a military police (MP) officer for use of excessive force in an arrest, that before analyzing whether such force was per se excessive, a threshold question in a defense raised of the MP's qualified immunity must be first answered as to whether the facts would establish the violation of a constitutional right and, if so, that the constitutional right was clearly established.

Eliot Katz, an animal rights activist protester, attended a public speech by Vice President Al Gore outside Letterman Army Hospital at the San Francisco Presidio Army Base, to protest the use of Letterman for experiments on animals. He secreted a 3 x 4-foot cloth protest banner under his jacket. When Gore began to speak, Katz got up and walked towards the speaker's platform, which was cordoned off by a waist-high fence, and started to unfold his banner.

MPs, who recognized Katz, rushed him from behind, grabbed his banner, and "half-dragged," "half-carried" him and roughly forced him into a military van. He was not injured, but was held briefly at the MP ...

$1,500 Awarded in New York Slapping Case

A New York federal district court has held that minor injury incurred from excessive force by a prison guard is actionable, and awarded damages after a bench trial. The court found it was undisputed that while prisoner Larenzo Romaine was housed at New York's Mt. McGregor Correctional Facility, he ...

Punch & Jurists: Criminal Law News You Can Use

One reason PLN doesn't expand its coverage into criminal law is because other publications already do a good job covering it and we see little point in duplicating those efforts. Punch and Jurists is, bar none, the best criminal defense newsletter and website in America today. Now in its ninth year of publishing, P&J has thorough, timely (it is a weekly) coverage of federal criminal litigation, including forfeitures, sentencing issues and the death penalty.

While their newsletter is a great source of information, their website is the true mother lode, the premier criminal defense website on the Internet. In addition to having all their back issues, they also include the full text of thousands of cases useful to criminal defendants and their attorneys. The " Apprendi Watch" section alone catalogues every decision, published and unpublished, dealing with the lower court's application of Apprendi . Their online brief bank includes motions and appeals dealing with all aspects of criminal law filed by many of the best criminal defense lawyers in America. Their special search engine allows for detailed searches by issue, and judge, among other criteria, i.e., find out how a particular judge has ruled on a specific issue ...

California Jury Awards $1 Million in Jail Rape

On November 20, 2001, a Los Angeles county jury returned a $1 million verdict to 39 year-old Jay Reynolds, a former jail detainee who was raped by his cellmates after a judge ordered his release from jail. Reynolds was arrested in March 1999, when a traffic stop by police showed ...

Disciplinary Board Must Assess Confidential Informant's Reliability

The court of appeals for the Fifth Circuit has held that the failure of a disciplinary hearing officer to find a confidential informant's tip was reliable violates a prisoner's right to due process. While housed at Texas' Eastham Unit, prisoner Morris Broussard was charged and convicted of possession of contraband intended for use in an escape. The primary evidence relied upon by the hearing officer was of the investigating officer, Captain Hammers.

Hammers related information he received from the Warden, which was obtained from a confidential informant. Hammers confirmed he had found a set of bolt cutters in the kitchen area, as the informant had related. Hammers did not personally interview the informant, or know anything about him or his identity. The hearing officer did not allow Broussard to question Hammers on the informant's reliability, nor did he take evidence in camera on the subject. After he was found guilty, Broussard lost all good time credits.

Broussard then filed a § 1983 civil rights complaint in the district court, which was converted to a habeas corpus. The district court granted the writ and Texas appealed. The Fifth Circuit held that disciplinary boards are required to assess the reliability ...

Third Circuit Vacates $300,000 Beating Award, Orders New Trial

by Matthew T. Clarke

The Third Circuit Court of Appeals has vacated a $300,000 jury award in a prisoner's excessive-use-of-force suit and ordered a new trial for liability and damages.

Raymond T. Pryer, a Pennsylvania state prisoner, filed a civil rights action under 42 U.S.C. § 1983 ...

New Mexico Caps High Telephone Rates

The governor of New Mexico signed a bill in February 2001, prohibiting prisons from profiting on prisoners' phone calls, which was exceeding 10 times the regular competitive rates with a 15 minute call costing up to $20. The Public Communications Services, a Los Angeles-based carrier kicked back 48.25% of their gross profits to the New Mexico Department of Corrections (DOC) as part of their contract that amounted to over a million dollars a year. Robert Perry the secretary of corrections for New Mexico says that the high rates are justifiable, with the money being used for monitoring calls by prisoners along with anger-management courses, plus monitoring devices used to track prisoners upon their release.

Carol Royal, founder of Families Advocating Correctional Effective Services, (FACES) was one of the factors in the lowering of the high phone rates. Her persistence and determination on campaigning against "(DOC) which as she saw it, was acting (like an evil empire) and gouging prisoners' families," paid off when the bill was passed in the states legislature.

The New Mexico legislature enacted the following statute:

"A. A contract to provide inmates with access to telecommunications services in a correctional facility or jail shall be negotiated ...

Three Arkansas Guards Sentenced in Beating

On August 22, 1999 Arkansas prisoner Terry Botts received a beating at the Arkansas Regional Unit in Brickeys by three guards while his hands were handcuffed behind his back. The guards determined the severity of the injuries he sustained would not require hospitalization, but Botts did suffer swelling and bruising on his face, and wrist.

Lieutenant Michael Bell, 62, Sergeant Brian Birtcher, and Scotty Bundren a prison guard were all sentenced with prison terms for their participation in the cowardly beating upon Terry Botts on August 30, 2001. The three guards were charged by federal prosecutors with violating Botts civil rights. All three guards pleaded guilty to the charges almost two years to the day after beating Botts. Michael Bell was sentenced to an 18 month prison term, fined $5,000, and 3 years probation out of a possible 24 to 30 month prison term. But prosecutors recommended a reduced sentence for his cooperation in testifying against his former colleague Brian Birtcher. His defense attorney Jeff Rosenzweig also added that his client was "extremely remorseful," and had ongoing regrets from his actions that was brought up in a separate hearing with the judge.

Scott Bundren received a sentence of a ...

Washington Infraction Invalid Where No Notice of Prohibited Conduct Given

The Washington Court of Appeals recently held that due process requires prior notification of prohibited conduct before prison officials may infract and punish prisoners for engaging in such behavior. Because the court found that the prisoner in the case before it did not receive adequate notice that his conduct was prohibited, the court vacated the disciplinary finding and restored the prisoner's lost good time.

On March 28, 1999, S.J. Krier was caught smoking in his cell, conduct that is prohibited at most DOC facilities. For this rule violation, Krier received a general infraction and was instructed that a hearing concerning the incident would occur on March 31. The hearing took place as scheduled and Krier was found guilty of the smoking violation. As punishment, Krier was sanctioned to ten days of cell confinement. Notice of this sanction was allegedly sent to Krier via the unit mail because he had not attended the hearing.

On April 11, 1999, Krier was infracted again. This time he received a serious infraction for failing to comply with the previously imposed cell confinement sanction. At the hearing on the serious infraction, Krier alleged that he never received notice of the cell confinement and ...

ADA/RA Suit for Sign Language Interpreters Proceeds for Prospective Injunctive Relief

ADA/RA Suit For Sign Language Interpreters Proceeds for Prospective Injunctive Relief

by John E. Dannenberg

The Eighth Circuit US Court of Appeals ruled that a deaf-mute Missouri State prisoner's ADA (Americans with Disabilities Act) and RA (Rehabilitation Act) based suit for sign language interpreters may proceed in US district court for prospective injunctive relief. However, retrospective relief and damages under these federal statutes were ruled to be foreclosed by Eleventh Amendment immunity, although the prisoner was still free to pursue state law based claims against the state officials in their individual capacities.

[This complex litigation had already been through the district and circuit courts twice. (See: Randolph v. Rogers , 980 F. Supp. 1051 (D.Mo., 1997) and Randolph v. Rogers , 170 F.3d 850 (8 th Cir. 1999) [ PLN , Mar. 2000].)]

MDOC (Missouri Dep't. of Corrections) prisoner Ronnie Randolph's profound hearing disability prevented his participation in prison activities, including disciplinary hearings. After exhausting state administrative remedies to try to gain the needed sign language interpreters, Randolph sued in federal court for injunctive relief and damages under both federal law (ADA, Title II, and RA) claims and state law claims.

The first district court ruling was favorable ...

Forced AA/NA for Parolee Defeats Qualified Immunity

A Wisconsin federal district court has held that officials are not entitled to qualified immunity when they require atheist parolees to participate in religious based substance abuse programs. John Bausch, a former prisoner and parolee, filed an action under 42 U.S.C. § 1983 against the former and present secretaries of the Wisconsin Department of Corrections (WDOC) and Debra Sumiec, his former parole officer. Bausch claimed the defendants violated the Establishment Clause of the First Amendment when they required him to participate in the Exodus House substance abuse program when he violated parole.

Exodus House's program is based upon the principals of Alcoholic Anonymous (AA) and Narcotics Anonymous (NA), which has a substantial religious component. Sumiec did not advise Bausch that as an alternative to revocation, he could participate in a secular program. Bausch stated in an affidavit that he was an atheist and had objections to the program, but participated because he believed it was the only way to avoid revocation of his parole.

In ruling on the defendant's Motion for Summary judgment, the court applied the coercion test in Kerr v. Farrey, 95 F. 3d 472 (7 th Cir. 1996). The Kerr Court identified three crucial ...

Tenth Circuit Vacates Religious Diet Awards Under PLRA Physical Injury Rule

by Matthew T. Clarke

The Tenth Circuit held that the PLRA forbids recovery of compensatory damages for violations of the right to exercise a religious preference absent proof of physical injury.

Jimmy Searles, a Kansas state prisoner, filed suit under 42 U.S.C. § 1983, claiming prison officials violated his First Amendment right to freely exercise his religion when a series of incidents of bureaucratic neglect and paperwork errors caused him to be denied a kosher diet for an extended period. At the time he mailed the complaint to the district court, Searles had not received a kosher meal for four months. The problem was corrected by the prison warden before the complaint was received by the district court and filed.

As previously reported in the November 1998 issue of PLN , at trial the jury found in favor of the warden and deputy warden and against the prison chaplain, awarding Searles $3,650 in compensatory damages, $42,500 in punitive damages, and attorney fees. The chaplain appealed, alleging that the PLRA prevents awards of damages to prisoners for mental and emotional injuries absent proof of physical injury and no physical injury was proven.

Noting that it was in conflict with ...

TDCJ Not Immune from Suit in Medical Malpractice Death Case

A Texas state court of appeals has held that the Texas Department of Criminal Justice (TDCJ) does not enjoy sovereign immunity from being sued in a medical malpractice/wrongful death case.

Charles Edwin Miller, III, was a Texas state prisoner at the Huntsville Unit of the TDCJ. On August 24, 1994, Miller was taken to TDCJ's health clinic complaining of nausea and severe headaches. Dr. Chaney, the physician in charge and a University of Texas Medical Branch employee, ordered pain medications, intravenous fluids, electrolytes, anti-vomit medication and ice packs to help relieve Miller's symptoms. The medication effectively masked the symptoms so that Chaney failed to diagnose Miller's real problemmeningitis. Miller's health subsequently deteriorated. He was hospitalized, and he died on September 28, 1994.

Miller's family sued TDCJ under the Texas Tort Claims Act, Chapters 101 and 104 of the Texas Civil Practice and Remedies Code. TDCJ filed a plea to the jurisdiction, claiming the court has no jurisdiction based on TDCJ's assertion of sovereign immunity. The district court denied the motion and TDCJ filed an interlocutory appeal.

The court of appeals held that there are two components to sovereign immunity: immunity from suit and ...

California Jail Settles Rape Case for $95,000

On November 19, 2001, the city of Santa Ana, California, agreed to pay $95,000 to an unidentified former jail detainee who was beaten and raped by his cellmate, to settle a lawsuit stemming from the attack. The 32-year-old unnamed accountant plaintiff was being held in the Santa Ana jail ...

Denial of Grievance Forms Is Denial of Remedy

The Court of Appeals for the Eighth Circuit held that a prisoner's "Motion to Reinstate Cause" after dismissal of a 42 U.S.C. §1983 action alleged facts to raise an inference he had exhausted his "available" remedies. While an Arkansas Department of Corrections (ADC) prisoner, James Miller was stabbed by another prisoner. He thereafter completed his state prison term, and was transferred to federal custody. While in federal prison Miller filed his civil rights action against six ADC employees alleging, inter alia, they were deliberately indifferent to his safety when he was stabbed.

The district court dismissed the suit upon the defendant's motion because Miller's failure to exhaust administrative remedies. Miller did not appeal. Two months later, Miller filed in that action a motion to compel ADC to provide him with grievance forms. In his motion, Miller alleged that after the dismissal he requested ADC to provide him grievance forms for him to file, and he had received no response from ADC. About two weeks after filing the motion to compel, Miller filed a document entitled, "Motion to Reinstate Cause." The district court denied the motion.

On appeal, Miller argued for the first time the PLRA ...

Jail Policy to Not Segregate Gangs Does Not Violate Constitution

Jail Policy To Not Segregate Gangs Does Not Violate Constitution

by John E. Dannenberg

The Seventh Circuit US Court of Appeals ruled that the Cook County (Chicago), Illinois jail did not violate the Constitution by failing to implement a policy segregating prisoners by gang affiliation. However, it distinguished the tier guards' personal actions in connection with a gang riot and found that those guards could have been deliberately indifferent to the safety of the pre-trial detainee plaintiff, given his requests for protective custody, the jail's history of gang fights and the inebriated condition of the prisoners, and thus be liable for civil rights violations.

Joel Mayoral was booked into Cook County Jail for the alleged murder of a rival gang member. He asked Officer Jackson and Sergeant William Janak repeatedly to be placed in protective custody. Instead, he was put into the general population day room, where he was challenged to identify his gang affiliation. Those prisoners were drunk on home-brew and noticeably loud. Sgt. Janak asked prisoner gang leader O'Kelly to control "his guys." O'Kelly complied. Later, a fight broke out wherein Mayoral was stabbed sixteen times by O'Kelly and hit in the head with ...

Texas Appeals Court Grants Prisoner Mandamus on Discovery

by Matthew T. Clarke

A state appeals court in Texas has conditionally granted a prisoner's petition for a writ of mandamus to order the judge of a Texas state district court to hear and rule upon the prisoner's request for discovery in a suit against prison officials.

Danny B. Bonds, a Texas state prisoner, filed a lawsuit in the 81st Judicial District Court of Karnes County, Texas. The defendants in the suit were various prison officials who were involved in a disciplinary proceeding against Bonds. Bonds filed discovery requesting a copy of the tape and disciplinary record from his disciplinary hearing. Bonds believed that the state's two year record retention policy would soon result in the destruction of the tape and disciplinary record. Bonds received no reply to the discovery request.

In an effort to preserve the tape and record from potential destruction, Bonds filed an emergency motion with the district court seeking preservation of the tape and record and use of them as evidence. The district court failed to rule on the emergency motion for seven months despite Bonds's official requests to the trial court and letters to the clerk requesting a ruling. Bonds then ...

Complaints Must Be Concise, To the Point

The court of appeals for the Eleventh circuit held that a district court erred when it dismissed a former pre trial detainee's Bivens suit for lack of jurisdiction and for failing to state a claim. The court chastised the plaintiff's attorney for filing a lengthy, rambling complaint.

Salvador Magluta spent five years in federal prisons as a pretrial detainee while awaiting trial on drug trafficking charges. He was ultimately acquitted and filed a Bivens suit over the harsh prison conditions he endured, including several years spent in isolation at the U.S. Penitentiary in Atlanta, Georgia. [The U.S. Government frequently condemns third world countries that hold pre-trial detainees in maximum-security prisons while awaiting trial, yet as this case illustrates, on occasion it does the same.] The district court dismissed the complaint for failing to state a claim and a lack of personal jurisdiction over 10 non-resident defendants. The court of appeals vacated and remanded.

The court characterized Magluta's complaint as a "quintessential `shotgun' pleading of the kind we have condemned repeatedly...." The court notes that Federal Rule of Civil Procedure (FRCvP) Rule 8 requires a "short and plain statement" of claims. The court blasted the inadequacies ...

News in Brief

Bolivia: On March 27, 2002, prosecutor Alex Alipaz, was stabbed four times by two prisoners while walking through a prison corridor in the San Pedro prison. Alipaz was seriously injured in the attack but survived. Alipaz said he had no idea why he was attacked, and the prisoners weren't commenting.

Brazil: On February 13, 2002, five people were seriously injured when a bomb exploded at the headquarters of the state prison system in Sao Paulo. A note attached to the bomb protested the treatment of prisoners in the Sao Paulo prison system.

Brazil: On January 17, 2002, a helicopter flew into the yard of the Jose Parada Neto penitentiary in Sao Paulo and flew away with two prisoners who escaped.

Brazil: On November 26, 2001, 108 prisoners escaped through a tunnel dug into the Sao Paulo Penitentiary, the largest one in the state. The tunnel opened in a prison workshop. Within a day 18 of the escapees had been recaptured.

Brazil: On November 26, 2001, a prisoner at the Barreto Campelo prison on Itamaraca island caught another prisoner spying on his wife while she was using the bathroom during a visit to the prison. The two men began to ...

California Guards Bust Budget

by W. Wisely

A report released November 27, 2001, by the Bureau of State Audits showed the California Department of Corrections (CDC) spent $87 million more than their annual budget allotted, according to the Sacramento Bee. That money was used to cover excessive overtime and sick leave for prison guards, the report found. What guards consider as an inalienable right, the unnecessary overtime and sick leave was the single biggest reason for a nearly $200 million budget deficit within the CDC.

The Bureau discovered that the prison system could have saved taxpayers $42 million by simply filling more than 1,500 vacant positions rather than paying overtime, the newspaper noted.

However, guards consider overtime one of the perks of their job. Local guards' union leaders in Lancaster and Mule Creek prisons confided that a certain amount of overtime was included in negotiations with administrators. The union stewards, who declined to be identified for this article, said there would be work "actions," such as slow downs and sick outs, if overtime was eliminated. That explains why CDC spending plans do not total the same as the budget approved by the legislature, the report concluded.

However, Edward Alameida, director of the Department ...


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