Skip navigation

Prison Legal News: July, 2002

Issue PDF
Volume 13, Number 7

In this issue:

  1. Two Private Kentucky Youth Facilities Closed for Abuse (p 1)
  2. From the Editor (p 5)
  3. Pro Se Tips and Tactics: Unknown Defendant Identities (p 6)
  4. PLN Sues Kansas DOC Over Censorship Policies (p 8)
  5. PLN Sues Oregon DOC Over Mail Censorship, Again (p 8)
  6. Oregon Prisoners Sue for HCV Treatment (p 9)
  7. Court Issues TRO Protecting Constitutional Right to Family Relationships (p 10)
  8. Moore Medical and Prison Industry Leaders Sign Agreements (p 10)
  9. Georgia Sheriff Charged in Murder of Successor (p 11)
  10. Deaths in Florida and Virginia Jails Spark National Investigations (p 12)
  11. Prison Population Growth Slows Dramatically in 2000 (p 14)
  12. Illinois Man Awarded $15 Million for 15 Years of Wrongful Imprisonment (p 14)
  13. Texas Jail Chaplain Rapes Female Prisoners (p 15)
  14. Texas Prisoner Wins $130,000 from Jail for Poor Care, Beatings (p 16)
  15. Washington Malpractice Suits Allowed Against Defense Attorneys Despite Alford Plea (p 16)
  16. $603,500 in Washington Jail Guard Discrimination Suit (p 17)
  17. Wrongly Paroled Texas Prisoner Entitled to Street Time (p 17)
  18. Prisoners at Private Federal Prison in California Strike Over Food, Medical Care (p 18)
  19. Schenectady's Jail Strip Search Policy Unconstitutional (p 18)
  20. $20,000 Settlement in Montana Jail Strip Search (p 19)
  21. Resource Directories (p 19)
  22. Deputy Causing Loss of Fingertip States Federal and State Claims (p 20)
  23. PLRA Requires Sequential Fee Collection (p 20)
  24. Frivolous Dismissal Reviewed Under Abuse of Discretion Standard (p 21)
  25. Washington Court of Appeals Adopts Federal "Mailbox Rule" (p 21)
  26. Colorado Parole Board Member Busted for Child Porn (p 22)
  27. Sanction for Lawyers' Exposing Secret Wackenhut Sexual Abuse Settlement Upheld (p 22)
  28. Texas Slavery Upheld Again (p 23)
  29. Catalyst Theory Guts Fee Award in Texas Parole Case (p 23)
  30. No Jurisdiction for Appeal When Qualified Immunity Not Denied (p 24)
  31. No Jurisdiction for Interlocutory Appeal Over Medical Treatment (p 24)
  32. Texas Prisoners Have No Absolute Right to Appear in Civil Cases (p 25)
  33. No Qualified Immunity in Illinois Denial of Exercise Claim (p 26)
  34. Illinois Contraband Law Revisited (p 26)
  35. Qualified Immunity, Collateral Orders Not Reviewable on Interlocutory Appeal (p 27)
  36. Interview by One Montana Parole Board Member Violates Due Process (p 27)
  37. Tenth Circuit Says "Snitch" Label States Eighth Amendment Claim (p 28)
  38. Religious Discrimination, Unsanitary Food Suit Denied Summary Judgment (p 28)
  39. Alaska Filing Fee Statute Upheld (p 29)
  40. Book Review: Dr. Melissa Palmer's Guide To Hepatitis Liver Disease (p 29)
  41. Colorado Denial of Motion to Amend Complaint Reversed (p 29)
  42. BOP Finger Amputation States Eighth Amendment Claim (p 30)
  43. Alabama Jail Enjoined for "Uncivilized and Hazardous Conditions" (p 30)
  44. PLRA Filing Fee Due for Each Separate Appeal (p 31)
  45. Ninth Circuit Reverses Dismissal for Failure to Comply with Rules (p 31)
  46. News in Brief (p 32)

Two Private Kentucky Youth Facilities Closed for Abuse

It took only six weeks for the Juvenile Justice Department (JJD) to close two Kentucky Youth Academy (KYA) facilities. On Sept. 14th, 2001 the Kentucky Division of Protection and Advocacy (DPA) filed suit in federal court charging the Central KYA in Willisburg with abuse and neglect. Seven days later, on ...

From the Editor

PLN 's cumulative index is now available. The index has almost 500 different subject categories for all articles reported by PLN . No more time spent looking vainly for cases or articles under various topics. PLN 's new indexing system is designed for the serious researcher and litigator. Aside from being ...

Pro Se Tips and Tactics: Unknown Defendant Identities

A recent Supreme Court case highlights a problem some prisoners face in finding the exact identities of defendants in civil rights cases. This column discusses this problem and some possible solutions.

In most cases, you must sue individuals and not governmental or corporate entities : In Correctional Services Corp. v. Malesko ...

PLN Sues Kansas DOC Over Censorship Policies

PLN Sues Kansas DOC over Censorship Policies

On April 4, 2002, PLN sued the Kansas DOC challenging various prison-system-wide polices that prevent Kansas prisoners from being able to subscribe to PLN or to receive the books that PLN distributes. For at least the past year the Kansas DOC has required ...

PLN Sues Oregon DOC Over Mail Censorship, Again

On April 2, 2002 Prison Legal News filed suit in federal court in Portland, Oregon, challenging the Oregon prison system's ongoing attempts to prevent Oregon prisoners from subscribing to PLN and receiving their subscriptions or book orders if they did subscribe. PLN had previously sued the Oregon DOC in ...

Oregon Prisoners Sue for HCV Treatment

On November 1, 2001, a group of Oregon prisoners filed suit in federal court against the State of Oregon, the Oregon Department of Corrections (ODOC), and several individual ODOC medical personnel related to the systematic denial and delay of adequate diagnosis and treatment of infection with the hepatitis C virus ...

Court Issues TRO Protecting Constitutional Right to Family Relationships

by David M. Reutter

A federal district court in New York has issued a Temporary Restraining Order (TRO) barring enforcement of a condition of probation prohibiting a female probationer from having contact with her child's father, DaShawn Johnson. Probationer Julie Tremper pled guilty to criminal possession of a weapon ...

Moore Medical and Prison Industry Leaders Sign Agreements

Moore Medical Corporation, a leading supplier of medical, surgical, and pharmaceutical products, recently signed multi-year agreements with three major corrections industry organizations on September 5, 2001. Moore will provide internet, telesales, and catalog procurement services to the 65 facilities managed by Corrections Corporation of America (CCA), to the readers of ...

Georgia Sheriff Charged in Murder of Successor

In November 2000, DeKalb County (GA) Sheriff Sidney Dorsey was locked in a close re-election bid with political rival Derwin Brown. Brown defeated Dorsey in that contest, but Sheriff Dorsey, apparently unwilling to accept the will of the voters, allegedly decided to take matters into his own hands. Brown was ...

Deaths in Florida and Virginia Jails Spark National Investigations

The badly bloated body of Kathy Kearns was removed from her Virginia Beach jail cell in the early morning hours of April 26, 2001. Testimony from witnesses and evidence from jail and city records show that Kearns desperately tried to get medical attention for six hours just before she died ...

Prison Population Growth Slows Dramatically in 2000

In the year 2000, America's prison population slowed its growth dramatically, showing the lowest growth rate seen in 28 years. The state prison population experienced its first measured decline in nearly three decades. These data highlighted an August 2001 report published by the Bureau of Justice Statistics (BJS).

At ...

Illinois Man Awarded $15 Million for 15 Years of Wrongful Imprisonment

On October 29, 2001, a federal jury in Chicago awarded $15 million plus about $2 million in attorney fees to James Newsome, 45, who was wrongfully convicted of murder and spent 15 years behind bars. It was the largest wrongful imprisonment verdict in Illinois history.

In 1979, Newsome was arrested ...

Texas Jail Chaplain Rapes Female Prisoners

A federal district court in Texas held that genuine issues of material fact precluded summary judgment on a female prisoner's claims under 42 U.S.C Section 1983 arising from her being raped by a jail chaplain and retaliated against for speaking out about the chaplain's conduct. The ...

Texas Prisoner Wins $130,000 from Jail for Poor Care, Beatings

A Texas state prisoner won $130,000 in damages after it was shown that he was denied medical care and not protected from violent prisoners while held at Williamson County Jail near Austin.

Martin DiCarlo, 39, filed suit in U.S. District Court under 42 USC §1983 where he alleged ...

Washington Malpractice Suits Allowed Against Defense Attorneys Despite Alford Plea

A Washington Court of Appeals has held that a defendant in a criminal prosecution may sue his former trial attorney for legal malpractice after his conviction was reversed for ineffective assistance, despite the fact that he entered an Alford plea on remand.

In 1993, Robert Falkner was convicted of second-degree ...

$603,500 in Washington Jail Guard Discrimination Suit

In November, 2001, a King County (Seattle) Superior Court jury awarded $603,500 in damages to Ralph Bunch, a former guard at the King County Juvenile Detention Center. In May, 1999, Bunch, who is black, filed suit against the county claiming he was subjected to racial discrimination and later, he ...

Wrongly Paroled Texas Prisoner Entitled to Street Time

by Matthew T. Clarke

The Texas Court of Criminal Appeals (CCA) has held that a prisoner erroneously released on parole was entitled to credit on both of his consecutive sentences for his time spent on the street. Earnest Millard, a Texas state prisoner, was serving time on two consecutive sentences ...

Prisoners at Private Federal Prison in California Strike Over Food, Medical Care

On November 26, 2001, more than 1,800 prisoners at the Taft Correctional Institution (TCI) refused to report to work in protest of shortcomings in the prison's food and medical care.

TCI, a privately run low-security federal prison operated by Wackenhut, remained on lock down since the first day ...

Schenectady's Jail Strip Search Policy Unconstitutional

by Matthew T. Clarke

A federal court in New York has held that the strip search policy of the City of Schenectady, New York, (the city) violates the Fourth Amendment prohibition against unreasonable searches.

Elizabeth Gonzalez and Michael Fyvie, citizens who were allegedly strip searched in the city's jail ...

$20,000 Settlement in Montana Jail Strip Search

Eric Lynn agreed to accept a $20,000 out-of-court settlement after complaining that Missoula County policemen violated his civil rights by conducting an improper strip search at the County Detention Center.

Lynn, a University of Montana senior, was among a group that protested an excessive police presence during a July ...

Resource Directories

The Prisoner's Assistance Directory is a 69-page booklet published by the ACLU's National Prison Project. The Directory gives a 50 state breakdown on legal organizations that represent prisoners in court, prison related publications, activist groups, advocacy and anti death penalty groups and organizations which provide assistance to parolees ...

Deputy Causing Loss of Fingertip States Federal and State Claims

by Matthew T. Clarke

A federal district court in North Carolina has ruled that a prisoner who lost his fingertip when a deputy slammed a cell door window cover on his finger has stated a proper claim under state and federal law against the sheriff, in his official and personal ...

PLRA Requires Sequential Fee Collection

A Massachusetts federal district court has held that under the Prison Litigation Reform Act (PLRA), indigent prisoners who have filed multiple lawsuits can only be assessed 20% of their total monthly receipts. In other words, the filing fees can only be collected sequentially rather than simultaneously.

Prisoner Anthony Lafauci filed ...

Frivolous Dismissal Reviewed Under Abuse of Discretion Standard

The court of Appeals for the Eleventh Circuit has held that a district court's dismissal of a prisoner's 42 U.S.C. § 1983 suit for frivolousness is reviewed by the abuse of discretion standard. It also held that the prisoner's litigation history may be considered. Jamal Ali ...

Washington Court of Appeals Adopts Federal "Mailbox Rule"

The federal mailbox rule deems pro se prisoners' pleadings as "filed" at the time they are deposited for mailing in the prison mail system, instead of when they are received by the court clerk. As a matter of first impression, the Washington Court of Appeals has finally adopted this rule ...

Colorado Parole Board Member Busted for Child Porn

The Colorado Bureau of Investigation (CBI) and the Custer County (Colorado) sheriff launched an investigation in early December, 2001, into allegations that Larry Schwarz, a former Colorado Congressman and parole board member, dealt child pornography out of his home.

Schwarz was a member of the Colorado House of Representatives from ...

Sanction for Lawyers' Exposing Secret Wackenhut Sexual Abuse Settlement Upheld

by Matthew T. Clarke

The Court of Appeals for the Fifth Circuit upheld the district court's sanctions against the prisoners' lawyers in a suit against Wackenhut Corrections Corporation (WCC) after the lawyers revealed the terms of a secret settlement agreement.

Five young girls who were allegedly sexually, mentally, and ...

Texas Slavery Upheld Again

The court of appeals for the Fifth circuit held that the Thirteenth amendment does not forbid the forcible enslavement of prisoners and a statutory gap in Texas law was inconsequential when a prisoner claimed statutory authority was required for prison slavery.

Ahmad Ali, a Texas state prisoner, was sentenced to ...

Catalyst Theory Guts Fee Award in Texas Parole Case

The court of appeals for the Fifth circuit vacated an award of $471,946 in attorney fees in a Texas parole suit finding that a recent supreme court ruling precluded attorney fee awards under the catalyst theory.

Texas prisoners filed a class action suit challenging various parole board practices. The ...

No Jurisdiction for Appeal When Qualified Immunity Not Denied

by Matthew T. Clarke

The Court of Appeals for the Eighth Circuit has ruled that it has no jurisdiction to hear an interlocutory appeal of a partial denial of a motion for summary judgment when the district court did not actually rule on defendants' qualified immunity defense.

Ben Krein, an ...

No Jurisdiction for Interlocutory Appeal Over Medical Treatment

The Court of Appeals for the Eighth Circuit has held that it lacks jurisdiction to hear an interlocutory appeal filed by a prison doctor.

Maurice Moore, an Iowa state prisoner, filed suit, under 42 U.S.C. § 1983, against a prison doctor Moore alleged was deliberately indifferent to his serious ...

Texas Prisoners Have No Absolute Right to Appear in Civil Cases

by Matthew T. Clarke

A court of appeals in Texas has ruled that Texas prisoners have no absolute right to personally appear at legitimation hearings, though they do have the right to appear by affidavit, telephone, or other effective means.

The Texas Attorney General filed a petition to establish the ...

No Qualified Immunity in Illinois Denial of Exercise Claim

The Seventh Circuit Court of Appeals has upheld a Northern District of Illinois Federal District Court decision to deny qualified immunity to prison officials at Stateville Correctional Center (SCC) in Illinois. The underlying case, Delaney v DeTella , 123 F.Supp.2d 429 (N.D. Ill. 2000). See PLN , September 2001 ...

Illinois Contraband Law Revisited

The Illinois Fifth District Appellate Court has analyzed an amended statute relating to the introduction of contraband. The court held that the amendment mandates a new statutory construction requiring contraband to be actually brought into areas dedicated to prisoner confinement.

Pedro Carillo went to visit a cousin confined at Illinois ...

Qualified Immunity, Collateral Orders Not Reviewable on Interlocutory Appeal

For want of jurisdiction, the Tenth Circuit Court of Appeals has dismissed the interlocutory appeal of a Bureau of Prisons (BOP) medical director from a district court's denial to the director of summary judgment based on qualified immunity and a grant to the plaintiff of expanded discovery in the ...

Interview by One Montana Parole Board Member Violates Due Process

The Montana Supreme Court held that prisoners in that state have a due process and statutory right to personally appear before all Parole Board members who will decide the merits of the prisoner's parole application.

Montana prisoner Rodney West petitioned the Court for a Writ of Habeas Corpus alleging ...

Tenth Circuit Says "Snitch" Label States Eighth Amendment Claim

Tenth Circuit Says "Snitch" Label States Eighth Amendment Claim

Finding that a guard deliberately labeled a prisoner as a snitch, the Tenth Circuit held the prisoner's Eighth Amendment rights were violated, the prisoner's fear of assault stated an Eighth Amendment claim, and the guard was not entitled to ...

Religious Discrimination, Unsanitary Food Suit Denied Summary Judgment

The United States District Court for the District of Columbia has partly granted, and mostly denied, the defendants' motions for summary judgment on a District of Columbia (D.C.) prisoner's claims that he was racially discriminated against by the defendants' arbitrary handling of his religiously based request for a ...

Alaska Filing Fee Statute Upheld

The supreme court of Alaska held that a state statute requiring prisoners to pay the filing fees in civil cases is constitutional, but that a superior court erred when it dismissed the plaintiff's case before the time limit it had imposed for the payment of the filing fee had ...

Book Review: Dr. Melissa Palmer's Guide To Hepatitis Liver Disease

Penguin Putnam, NY, 2000, pb. 457 pages

Review by Phyllis Beck

A big thumbs up for Dr. Melissa Palmer's Guide to Hepatitis Liver Disease . The book's information is up-to-date, it is fully indexed, it includes a 25-page bibliography, and it covers a wide range of hepatitis and liver ...

Colorado Denial of Motion to Amend Complaint Reversed

The Colorado Court of Appeals held that provisions of the Colorado Government Immunity Act (CGIA) which precluded a prisoner's claim does not violate equal protection. The court also held that the trial court erred in denying the prisoner's motion to amend his complaint to allege willful and wanton ...

BOP Finger Amputation States Eighth Amendment Claim

Reversing a lower court ruling, the Tenth Circuit found that a prisoner whose finger fell off after it was re-attached by a prison doctor stated an Eighth Amendment claim for deliberate indifference to his serious medical needs.

In June 1999, Horace Oxendine, a prisoner at the Federal Correctional Institute at ...

Alabama Jail Enjoined for "Uncivilized and Hazardous Conditions"

Chief Judge Clemon of the Federal District Court, Northern District of Alabama, has preliminarily enjoined the Morgan County Jail, its sheriff, administrator, and commissioners, and the commissioner and transfer director of the Alabama Department of Corrections (DOC) because of conditions described by Judge Clemons as "uncivilized and hazardous."

Johnny Maynor ...

PLRA Filing Fee Due for Each Separate Appeal

by John E. Dannenberg

The Second Circuit US Court of Appeals held that a prisoner filing multiple appeals in the same 42 U.S.C. §1983 civil rights action must pay the full filing fee for each separate appeal.

Elvin Lebron, a prisoner at the City of New York Clinton ...

Ninth Circuit Reverses Dismissal for Failure to Comply with Rules

The Ninth Circuit Court. of Appeals has reversed a California District Court's dismissal of a federal prisoner's suit because the prisoner failed to comply with local court rules in filing an amended complaint. Federal prisoner Alejandro Ordonez filed suit against various government parties under Bivens v. Six Unknown ...

News in Brief

Alaska: On April 11, 2002, Cynthia Cooper, the head prosecutor in the state attorney general's office, resigned after being judicially admonished for pursuing felony charges against a public defender who crashed his car into a light pole. Anchorage prosecutors had agreed to a misdemeanor plea bargain with Wally Tetlow ...