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Prisoner Education Guide

Prison Legal News: July, 2002

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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 Sept. 21, the JJD closed the facility, removed 40 youths, and cut its $4.5 million contract in half. On Nov. 5, a local newspaper reported that academy CEO Rocky Hall was paying himself over $500,000 a year. On Nov. 6, Hall resigned; and on Nov. 7 the JJD cancelled the contract completely, removed 48 more boys, and closed the KYA facility in Pikesville as well.

Hall founded the original KYA in Pikesville in 1997 as a non profit company. He opened the Willisburg center in 1999. Trouble was not long in coming. Reports of abuse at both centers led to investigations by the DPA, the JJD, and the Cabinet for Families with Children (CFC).

Investigations began in January 2001. Findings were serious enough that the CFC withdrew twelve boys that had been admitted to the academies under its authority.

Youths at the KYA centers were not threats to ...

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 an excellent resource and guide to past issues of PLN , the index is also a fine stand alone research guide simply because we have reported all significant cases and prisoner wins since our inception in 1990. The new index is extremely easy to use as well as providing a lot of detailed information. Over two years in the making, the cumulative index is finally available. We will update the index on a semi-annual basis from now on.

Between 1996 and 2000 PLN published its annual index in the
January issue. However, as PLN grew, so did our index, so that by 2000 it was
taking up more than half the issue. It was also difficult to use as an annual index by the time we had published for over ten years since it required multiple indexes and going back and forth to use it. The new cumulative index resolves all ...

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 , 534 U.S. 61 (2001), the Supreme Court held that a federal prisoner could not sue for violations of constitutional rights a private corporation that had contracted to run a halfway house for the federal Bureau of Prisons. The Court extended to private corporate prison contractors an earlier case holding that plaintiffs could not sue a federal agency or public corporation, as opposed to individual federal agents, for violations of constitutional rights.

Malesko arose in the special context of cases in which the federal government may be sued for violations of constitutional rights, where the Supreme Court has found that in some instances plaintiffs can make out a claim something like a § 1983 claim. (§ 1983 itself refers only to suits against state government officials, so it does not apply directly to suits against federal officials.) However, it reinforces some earlier holdings of the Court that apply directly to § 1983 cases ...

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 that prisoners pay for all magazine subscriptions and book purchases from their prison trust accounts. Gift subscriptions from friends or relatives or free subscriptions from publishers are not allowed. In addition to limiting prisoners to only those subscriptions and publications they purchase from their trust accounts, the Kansas DOC further places an arbitrary limit of $30 per month as the amount prisoners can spend on subscriptions or magazines. Prisoners who are on "level 1", a form of classification status which includes both new arrivals and those who are not "programming," are not allowed to receive any publications at all, even if they pay for them from their trust accounts. The ban on publications for level 1 prisoners does not apply to religious publications, but it does apply to political and legal publications like PLN .

These policies have resulted in prisoners who subscribe to PLN having their subscriptions censored because they ...

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 1998 over their policy of censoring publications based on the postage rate that the publisher paid. At that time they banned all mail sent by third or fourth-class mail, now called "standard mail." In 2001 the Ninth circuit ruled in PLN 's favor, holding that the policy was unconstitutional. See: Prison Legal News v. Cook , 238 F.3d 1145 (9 th Cir. 2001). On remand, the district court awarded PLN over $58,000 in attorney fees and costs and entered an injunction prohibiting the censorship of mail based on its postal classification and ordering due process when mail is censored.

Rather than follow the injunction, the Oregon DOC enacted new mail rules that still censored mail and denied due process based on its postal classification, singling out non profit publications such as PLN for censorship. The Oregon DOC continued to refuse to deliver PLN to its Oregon subscribers. They also ...

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 (HCV).

In 1999 the ODOC reported to state legislators that an estimated 30 percent of the state's 10,000 prisoners suffer from HCV, but none were receiving treatment, which averages between $18,000 and $20,000 per person. Instead, in an attempt to avoid the cost of treating HCV infected prisoners, ODOC officials implemented a rigid, medically unacceptable HCV protocol that is designed to deny as many prisoners as possible the life-saving treatment they need.

On March 23, 2001, fifty-seven prisoners filed grievances related to the delay and denial of HCV diagnosis and treatment, in an effort to comply with the exhaustion requirements of the Prison Litigation Reform Act (PLRA).

In an obvious effort to deprive prisoners of access to the courts as long as possible, ODOC officials simply refused to answer any of the HCV grievances. So, on July 5, 2001, all fifty-seven prisoners filed grievances related to ...

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, resulting in sentencing being postponed for one year in lieu of interim probation during that period. Thereafter, the Court could dismiss the charge, impose sentencing terms of incarceration or probation, or take other action.

Tremper and Johnson filed suit and sought TRO relief barring enforcement of a special probation condition that Tremper refrain from contact with Johnson. The defendant, Ulster County Department of Probation (UDCP), regularly recommends that judges impose such a condition. Tremper and Johnson alleged the condition violated their "privacy and associational rights under principals of substantive due process under the First, Fourth, Ninth, and Fourteenth Amendments." Specifically, they argued their right "to participate in the care, custody, and management of their natural child, and the right of their child to live together with her natural parents."

There is no dispute that enforcement of the condition will cause irreparable harm to Tremper and Johnson by prohibiting them from ...

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 Correctional News , and to visitors to the Corrections Connection website at

There are more than two million prisoners held in over 7,000 facilities in the U.S. including prisons, jails, and detention centers. Moore already serves 2,000 of these facilities with a line of health care products, including hundreds of special items designed for prisoner-patients and for secure clinical settings.

CCA, the nation's largest private prison company, has about 61,000 prison beds under contract. "In addition to streamlining our ordering process, this arrangement [with Moore] represents another step in our company's ongoing efforts to manage medical costs while ensuring quality services," said Michael Dray, CCA's managing director of corporate health services.

Danielle Klaussen, associate publisher for Correctional News , noted, "We know our readers are keenly interested in health care issues and medical care efficiency. Our relationship with Moore Medical brings a ...

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 assassinated on December 15, 2000 just three days before he was to take office and now Dorsey has been charged with his murder.

Dorsey was arrested for first degree murder in Brown's death on November 30, 2001. At a bail hearing in December, county district attorney's office investigator Chris Harvey testified that Dorsey's intent was to create an opening in the sheriff's office at which time he could reclaim his old job in a special election. Brown had defeated Dorsey after accusing him of turning the county jail into a "wasteland of corruption."

Evidence revealed at the bail hearing indicated that two to three weeks after losing the election, Dorsey summoned a deputy to his house and gave him a note that said "Kill Derwin Brown." Dorsey, who was not present when Brown was shot 11 times in his driveway, is also alleged to have targeted ...

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. An emergency call was placed at 4:42 a.m. and an ambulance arrived at the jail in less than 15 minutes. But by the time help arrived on the scene Kathy Kearns was dead, her stomach swollen to unnatural proportions. Details of the case were revealed only after the Virginian-Pilot newspaper invoked the Freedom of Information Act. Amnesty International and the F.B.I are now investigating the case.

Kearns had been serving a 14-month sentence in the Virginia Beach city jail for drunken driving when she was diagnosed with an umbilical hernia four months prior to her death. She was also under medical treatment for hepatitis C and advanced liver disease. After being diagnosed with the hernia, Kearns gained over 80 pounds in less than three months. In spite of a surgeon's determination that Kearns was in need of outpatient surgery and repeated complaints of intense and ...

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 the end of the year 2000, the United States incarcerated 2,071,686 persons. Excluding prisoners in local jails, federal and state prisons held 1,312,354 prisoners. Local jails accounted for another 621,149 prisoners. Territorial prisons, Immigration and Naturalization detention facilities, military prisons, Indian country jails, and juvenile facilities accounted for the rest of the prisoners. The 2000 incarceration rate was 478 sentenced prisoners per 100,000 U.S. residents, up from 292 per 100,000 in 1990. One of every 109 men and one of every 1,695 women in the U.S. are incarcerated. If jails are also considered, the incarceration rate rises to 699 prisoners per 100,000 residents, or about 1 of every 143 U.S. residents imprisoned.

From 1990 to 2000, the State and Federal prison populations grew at an annual average rate of 6.0%. From a peak growth rate of 8 ...

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 court also held that no genuine issues of material fact existed with regard to her state law claim of sexual battery.

Olga Lydia Paz filed suit against Harris County, TX, under 42 U.S.C. Sections 1983, 1985 and 1986 as well as the state law claim of sexual battery for alleged sexual assaults by a jail chaplain.

Paz alleged that during her incarceration in the Harris County Jail in 1997 and 1998, contract-chaplain Fred E. Weir had sexual contact with her on numerous occasions. She alleged that in July 1997 Weir put his hand under her shirt and fondled her breasts. This occurred again a couple weeks later.

Paz reported that she was "very confused by what Chaplain Weir had done" to her because she "had looked to him for the spiritual help [she] needed and he took advantage of [her] confusion and vulnerable position."

A third incident occurred ...

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 murder for allegedly killing his wife. Following the trial, Falkner discharged his attorney, Michael Foshaug, hired new counsel and moved for a new trial based on the ineffective assistance of Foshaug. The motion was denied by the trial court, but on appeal Falkner's conviction was reversed because Foshaug's failure to investigate and prepare a defense prejudiced Falkner's right to a fair trial. The case was remanded for a new trial.

In December of 1998, the case went to trial for a second time. After the state's first witness violated a pretrial evidentiary ruling, the trial court declared a mistrial. Falkner's new counsel then moved to dismiss the case due to prosecutorial misconduct, but before the motion could be ruled on Falkner entered an Alford plea to one count of first-degree manslaughter and was released from custody. In an Alford plea, a defendant maintains his innocence ...

$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. When he made parole on the underlying sentence, prison officials erroneously released him. He remained on parole for four and a half years, then his parole was revoked. Millard was credited with the time he was incarcerated under the pre-revocation warrants, but given no credit for either sentence for the time he was on parole.

Millard filed a state petition for a writ of habeas corpus under Article 11.07, Texas Code of Criminal Procedure, alleging that he was entitled to credit on both sentences for the time he spent on parole. Recommending to the CCA that relief be granted, the district court found that Millard was erroneously released through no fault of his own and was therefore entitled to the credit requested.

The CCA noted that time credit claims were cognizable on habeas corpus; however, recently enacted state law, § 501.0081 of the Texas Government Code, requires that prisoners ...

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 of the work stoppage. Relatives of TCI prisoners say the work stoppage is just a culmination of several months of building frustration.

"It's rice and beans just about every day," said former prisoner David Salazar, who was released from TCI the day after the strike began. "Even if you like rice and beans, you don't want to eat it every day." Salazar said the meals only occasionally contain meat and then only processed meats.

TCI prisoners have long complained about the substandard food at the prison, but prison official insist the complaints are mere fabrications.

TCI spokesman Terry Craig said had the prisoners not been on lockdown due to the strike, they would be eating meals which include items like pie, cake and cookies. Because they are locked down, they are only receiving three sack lunches every day.

TCI officials also dispute that prisoners do not receive adequate ...

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, filed suit under 42 U.S.C. § 1983, alleging the city's informal policy of strip searching every detainee being held within the city's cell block was unconstitutional, regardless of the reason for the detention. The case was before the court on both plaintiffs' and defendants' motions for summary judgment.

Gonzalez had been stopped in her vehicle for a purported traffic violation, then asked to accompany the police officer to the jail to clear up an "association bit" which indicated that someone of her name was wanted in a different jurisdiction. Gonzalez remained in the jail, but not in a cellblock, while the police officer took copies of her fingerprints to Albany to check on whether she was the wanted person. Gonzalez was never arrested, but alleged the police officer ordered a female jail matron to strip search her and she was required to disrobe to the point of ...

$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 and ex prisoners. Now in its 13th edition, the Directory is an extremely useful resource for organizations, prisoners and their families. A must for prison libraries and organizations. Cost is $30, post paid. Contact: NPP, 733 15th St. NW, Ste. 620, Washington DC, 20005.

The National Prisoner Resource List is compiled and distributed by the Prison Book Program, a group that distributes free books to prisoners in the Southeast United States. The Resource List is available to all prisoners, regardless of location. It lists hundreds of groups, organizations and publications, ranging from art projects, book programs, religious groups, ethnic groups to legal resources, activist groups, pen pals, parole resources and much more. One of the most extensive and current resource lists around. Cost is $1.00. Contact: Readers Corner Prison Book Program, 31 Montford Ave., Asheville, NC 28801.

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 capacities, and the deputy in his personal capacity.

Kevin Doyle Ramsey, a citizen of Watauga County, North Carolina, filed a civil rights action pro se in state court against the sheriff of Watauga County, a deputy, and the sheriff's bonding company, alleging that a deputy working at the Watauga County Law Enforcement Center ("the jail") caused him to lose the distal portion of his right index finger in violation of his Fourth, Fifth, Eighth and Fourteenth Amendment rights, state common law, and N.C.Gen.Stat. § 162-55 (1994) a state statute prohibiting injuring a prisoner. After the suit was removed to a North Carolina federal court and treated as a suit under 42 U.S.C. § 1983 with pendent state claims, the defendants moved to dismiss the complaint.

Ramsey was arrested by police for being intoxicated and disruptive, taken before Magistrate Walter Green to be arraigned and given a ...

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 four actions under 42 U.S.C. § 1983 after he was imprisoned. Massachusetts Correctional Institution interpreted 28 U.S.C. § 1915(b)(2) as requiring a 20% total monthly assessment for all fees, regardless of the number of lawsuits filed. Lafauci was transferred to Sauza Baranowski Correctional Center, who interpreted the law as requiring a 20% monthly assessment for each suit filed. Lafauci filed a motion to correct filing fees with the court.

The court found the issue is one of first impression in the circuit, but it had been previously ruled upon, with different results, by the Second and Seventh Circuits. The Seventh Circuit in Newlin v. Helman, 123 F. 3d 439 (1997), held that fees must be collected simultaneously so prisoners would have to incur immediate costs for each of their legal activities, and not receive multiple suits for the price of one.

The court rejected this rationale ...

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 Bilal filed suit against Scott Driver, a guard at the Escambia County, Florida Jail, for forcing him to wear an electronic shocking device built "approximately 1,000 times" during all court and in-house transports from June 1995 to February 1997. Bilal alleged Driver intimidated him by threatening to discharge the belt in retaliation for the "fright" Bilal instilled in Driver from a chance encounter between the two at a hospital before Bilal was incarcerated. The district court dismissed the complaint as frivolous.

The Eleventh Circuit left for another day the decision of whether or not Bilal's legal theory - an excessive force claim for immediate, malicious threat of electrical shock _ would be indisputably meritless. It held the review of a dismissal of a complaint for frivolousness, under 28 U.S.C. § 1915(e), is made using the abuse of discretion standard. The court stated a district court has long ...

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 as its own.

On August 7, 1998, Sidney Hurt pleaded guilty to one count of vehicular homicide by driving under the influence. Incarcerated and acting pro se, Mr. Hurt mailed a motion to withdraw this plea on August 3, 1999. For whatever reason, the motion did not arrive at the trial court until August 10 and Mr. Hurt's motion was dismissed as untimely under Washington's one-year collateral attack statute of limitation. See RCW 10.73.090.

On appeal, Mr. Hurt, now represented by counsel, argued that his motion was timely filed under the federal mailbox rule and that Washington should adopt such a rule for prisoners in that state. After surveying the law from both the federal judiciary and other states, the Court of Appeals agreed. It found that as a matter of due process, equal protection, and overall procedural fairness adopting such a rule was necessary. Thus ...

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 January, 1995, until August, 1997, when he resigned to accept an appointment to the parole board from former Governor Roy Romer. He was fired by current Governor Bill Owens on December 4, 2001, while authorities executed a search warrant for the suspected pornography at Schwarz's home.

No charges were filed on the first day of the search, though officers did seize several boxes of material from the home, as well as a computer. The warrant for Schwarz's house was aimed at finding "any and all pornographic materials, video tapes, films, magazines, books, written material, photographs, computer files and disks (about) sexual abuse of any child or juvenile. . ." The officers indicated that they would have to return to the home, perhaps for another day or two, to conclude the search.

Governor Owens said that he fired the 61-year-old Schwarz for "providing false information to the governor on his application ...

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 13 years imprisonment for robbery. Between 1989 and 1995, Texas statutes did not authorize sentencing prisoners to hard labor as part of their punishments. Statutes before and after did. See: Tex.Rev.Civ. Stat. Art. 6166X (repealed 1989); Tex. Gov't Code § 497.090 (1995, repealed in 1999 and replaced by Tex. Gov't Code § 497.099(a)).

Ali filed a 42 U.S.C. § 1983 suit claiming violation of his 13th amendment right to be free from involuntary servitude. The district court dismissed the suit and the court of appeals affirmed.

The appeals court stated: "This appeal leads us to reiterate that inmates sentenced to incarceration cannot state a viable 13th amendment claim if the prison system requires them to work." The court cites numerous precedents that hold that "When a person is duly tried, convicted and sentenced in accordance with the law, no issue of peonage or involuntary ...

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 prisoners won at trial, see Johnson v. Texas Dept. of Criminal Justice , 910 F. Supp. 1208 (WD TX 1995) [ PLN , Oct. 1996], but were reversed on the merits on appeal, see: Johnson v. Rodriguez , 110 F.3d 299 (5th Cir. 1997) [ PLN , Nov. 1997]. On remand, the lower court ordered the defendants to pay the plaintiffs $471,946.05 in attorney fees and costs, holding that while the plaintiffs had lost on the merits, the lawsuit had served as a "catalyst" because the parole board defendants "voluntarily" changed their policies and practices to accommodate the plaintiffs' demands. The defendants appealed.

In Buckhannon Board and Care Home Inc. v. West Virginia Dept. of Health and Human Resources , 121 S.Ct. 1835 (2001) the supreme court overruled nine circuit courts of appeal and rejected the catalyst theory of who is a prevailing party for attorney fee award purposes.

Relying on Buckhannon , 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 Arkansas state prisoner, filed suit under 42 U.S.C. § 1983 after he was attacked by another prisoner named Pruett. The suit alleged that prison officials violated his Fifth, Eighth, and Fourteenth Amendment rights by failing to maintain adequate security within the prison and failing to provide him proper medical care. While Krein's motion to extend the discovery deadline was pending, defendants filed a motion for summary judgment on the basis of qualified immunity.

The magistrate recommended dismissal of the medical claims. However, the magistrate was unable to make a recommendation on the other issue because, whereas it was undisputed that the defendants had no way of knowing that Pruett posed a specific threat of harm to Kreins a material dispute of fact exists concerning whether defendants should have been aware of a serious risk of harm based on Pruett's violent history and recent disciplinary conviction and the ...

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 medical needs. The doctor filed a motion for summary judgment on the basis of qualified immunity. "Qualified immunity shields government officials for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have know." The doctor admitted he knew Moore had serious medical needsAIDS and Hepatitis Cbut he was not deliberately indifferent to those needs. The district court denied the motion, concluding that there was a material fact issue regarding deliberate indifference and that qualified immunity was unavailable because, viewing the evidence favorably to Moore, the doctor's conduct was not objectively reasonable under clearly established law. The doctor filed an interlocutory appeal.

An interlocutory appeal is an appeal of an order that does not finally decide a case. This is an exception to the general rule that only final orders are appealable. To qualify for interlocutory appeal, the ...

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 parentchild relationship between B.R.G., a child, and Texas state prisoner Robin Lynn Geer and seeking appointment of conservators, medical support and child support. The trial court set a date for a hearing and Geer sent the district clerk a letter stating that he was a prisoner and asking for a continuance of the hearing until after his expected release date eight months later. When the courtrescheduled the hearing for a date prior to the expected release date, Geer filed an application for writ of habeas corpus ad testificandum to appear at the hearing and a notice to the court that he was an indigent prisoner. The court denied Geer's application and the hearing before a Master proceeded in Geer's absence. The court then set a date for a hearing on the merits in advance of Geer's expected release date. Geer objected, reminded the court that ...

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.

Glen Delaney is a SCC prisoner in segregation since January 1995. George DeTella is SCC's warden. In 1996, SCC was placed on lockdown. Before the lockdown, segregation prisoners posing no security threat were granted 5 hours of out-of-cell exercise. During the 6-month-long lockdown, Delaney and others were denied all out-of-cell exercise.

Consequently, Delaney developed various physical and psychological problems related to lack of exercise. His complaints to prison officials were ignored, and Delaney eventually filed suit under 42 U.S.C. §1983, alleging that the denial of exercise and resulting problems violated his Eighth Amendment right to be free from cruel and unusual punishment.

SCC officials moved for summary judgment, asserting qualified immunity. The district court denied summary judgment and denied qualified immunity to defendants. Defendants appealed, citing qualified immunity, asserting a penological interest in denying exercise, and denying that Delaney suffered any serious injury of which they were ...

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' Shawnee Correctional Center. When he entered prison grounds, a guard directed him to park in a designated visitors' parking lot. He parked the car and locked it. The guard requested to search the car before Carillo reached the prison entrance. Carillo consented. The guard found a paper bag in the back of the car that contained four unopened cans of beer. Carillo was tried and convicted of introduction of contraband into a penal institution, and he appealed.

The court found that over the years the legislature has added to the list of contraband items. Many of which people routinely carry with them, but must not carry into jail or prison. The most notable example is "electronic contraband" such as cellular phones, computers, and pagers. The term "weapon" was broadly defined to cover anything from tire irons to golf clubs.

In 1983 the court equated bringing items of contraband into a ...

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 case.

Jonathan Garrett is a lifer at BOP's Administrative Maximum Facility (ADX) in Florence, Colorado. C. A. Stratman is the chief medical officer at ADX. Garrett's shoulder was seriously injured in a fight in June 1995. Garrett repeatedly sought medical attention from Stratman for his injury, complaining consistently of severe pain and loss of mobility. Despite an orthopedic specialist's review and recommendation that he receive reconstructive surgery, Garrett was not transferred to BOP'S medical center until eleven months after the injury.

Garrett sued Dr. Stratman under Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics , 403 U.S. 388, 91 S.Ct. 1999 (1971), for denying him needed medical treatment in violation of the Eighth Amendment. Specifically, Garrett alleges that Stratman failed to take sufficient steps to insure prompt, appropriate treatment. Stratman argued that he took all allowable steps and moved for summary ...

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 that his continued incarceration was illegal because only one member of the Board was present at his parole hearing. The state conceded that West had a liberty interest in parole and that due process and Montana statutory provisions required the Board to personally interview him prior to making a determination about his parole, as the Court previously held in Sage v. Gamble , 279 Mont. 459, 929 P.2d 822 (1996).

Respondent argued, however, that not all members of the Board were required to be present for the personal interview, pursuant to the Court's later holding in Radford v. Mahoney , 290 Mont. 530, 977 P.2d 342 (1998).

The Court rejected the state's argument, stating: "We held in Sage v. Gamble that because of the subjective nature of the Parole Board's decision, to deny an inmate the opportunity to appear before those who will personally decide the merits ...

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 qualified immunity.

In 1998, Lonnie Benefield was a prisoner at the U.S. Penitentiary in Florence, Colorado. While there, he alleged that a prison guard named McDowall put him in danger of attack or even death at the hands of other prisoners by circulating rumors that he was a snitch.

Seeking relief, Benefield filed a Bivens action in U.S. District Court where he complained of Eighth Amendment violations growing from McDowall spreading rumors that he was a snitch. McDowall moved to dismiss the complaint. In December 1999, the district court denied McDowall's motion and she appealed to the U.S. Court of Appeals for the Tenth Circuit.

"Prison officials have a duty to protect prisoners from violence at the hands of other prisoners. A prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment. A prison official who knows ...

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 vegetarian diet and by the unsanitary way in which food was prepared and served.

Lawrence Caldwell is a white D.C. prisoner. He is a member of the Liberal Catholic Church and a strict vegetarian. Willie Caesar was the Chaplain at Lorton Reformatory's Maximum Security Facility (Maximum) while Caldwell was confined there. Aramark is a private company contracted by D.C. to prepare and serve food for Maximum.

While in Maximum, Caldwell repeatedly requested that he be given a vegetarian diet as part of his religious beliefs. Caesar had to approve the requests and notify Aramark. Although requests were supposed to be renewed every 90 days, Caesar made Caldwell renew his requests at arbitrarily shorter times, sometimes monthly. Aramark also repeatedly failed to serve Caldwell the vegetarian diet, and frequently prepared and served it in an unsanitary manner.

After repeated complaints, Caldwell sued under 42 U.S.C. § 1983 ...

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 expired.

Richard Brandon is an Alaska state prisoner held in a private prison. He attempted to file suit over commissary surcharges that were in violation of a settlement agreement in Cleary v. Smith , a statewide conditions case. Brandon sought a filing fee exemption, which was granted, and he was ordered to pay a reduced filing fee. He later sought, and was granted an extension of time in which to pay the fee. A different superior court judge dismissed the suit without prejudice before the time limit set for payment of the filing fee had expired, because Brandon had not yet paid the fee.

On appeal, the Alaska supreme court affirmed in part and reversed in part. The court held that A.S. 09.19.010, the statute that requires prisoners to pay the filing fees in civil actions is constitutional. In doing so ,the court rejected Brandon's equal protection ...

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 disease related topics.

Dr. Palmer's book is written in an easy to read style and its information is understandable by lay people and professionals alike. The book can help the reader to understand the state of their health from medical reports, and evaluate the treatment they are receiving or might need.

As director of the National Hepatitis C Prison Coalition I am constantly dealing with hepatitis related issues, and I am able to quickly find the answer to most questions in Dr. Palmer's book.

The book is a must read for anyone who wants to learn more about hepatitis and liver disease, and it is a valuable addition to the literature available about those diseases. I give an unqualified recommendation to Dr. Palmer's book and Penguin Putnam is to be commended for bringing it out in a low cost paperback edition.

[Phyllis Beck is director of the ...

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 conduct.

Colorado prisoner Benjamin Davis was injured when he slipped and fell on a spill that had allegedly been caused by Lieutenant Paolino. Davis brought suit against Paolino and the Colorado Department of Corrections (DOC) seeking compensation for the injuries he allegedly suffered as a result of the fall.

Defendants moved to dismiss, arguing that Davis' suit was barred by the CGIA and that his "complaint failed to allege any facts that would demonstrate that Paolino's conduct was willful or wanton such that the CGIA would be inapplicable."

Davis claimed that the CGIA violated his constitutional rights to access the courts and equal protection of the law. He also argued that Paolino was not immune from liability and that he had "deliberately neglected" to clean the spill in "reckless disregard for the plaintiff's safety." Davis also sought to amend his complaint to allege that Paolino's actions were ...

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 Florence, Colorado, filed a Bivens action in U.S. District Court. Oxendine alleged that the prison physician, Barry Kaplan, and his helper, Jose Negron, were not qualified to perform an emergency re-attachment of Oxendine's right, middle finger after it was accidentally severed when it was caught in his cell door. Oxendine complained that the defendants' failure to obtain outside, specialized medical assistance before, during, and after the March 1999 re-attachment procedure caused permanent loss of a portion of his finger and this failure violated his Eighth Amendment rights.

In July 2000, the district court dismissed Oxendine's complaint after finding that he had not alleged deliberate indifference as required to support a Bivens action but had, at most, alleged negligence. Negligence claims against government agents are not cognizable under Bivens but may only be brought against the federal government itself under the Federal Tort Claims Act, said the court ...

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 and several other prisoners at the Morgan County Jail sued the jail for serious Eighth Amendment violations. Following a hearing, Judge Clemons issued a Findings of Fact and Conclusions of Law and a Preliminary Injunction. Judge Clemon opened the findings stating, "The sardine-can appearance of [the jail's] cell units more nearly resemble the holding units of slave ships during the Middle Passage of the eighteenth century than anything in the twenty-first century."

Specifically, the judge found that prisoners slept on the floor under bunks, between bunks, next to toilets and showers, and on tables where meals are served, frequently, "with[out] sleeping mats, blankets, or sheets." The jail did not regularly clean the linen that was provided, and took weeks to return clothes sent out for cleaning. The judge berated the jailers for maintaining filth by neither cleaning the jail nor supplying prisoners with adequate cleaning supplies. Judge Clemon ...

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 Correctional Facility, had filed a 42 U.S.C. § 1983 complaint against prison staff in US District Court (S.D.N.Y.).

Lebron submitted the required authorization form to permit deduction of the $120 filing fee required under the Prison Litigation Reform Act (PLRA), 42 USC §1915, but the court was unaware of this and dismissed the case for failure to pay the fee.

Lebron appealed, paying the additional appellate filing fee. The Court of Appeals vacated the district court's procedural dismissal and remanded for a determination whether Lebron had indeed properly proffered payment at the district court level.

The district court ruled in Lebron's favor and let him proceed in forma pauperis. Lebron also motioned the appellate court for return of his appellate filing fees, which that court denied.

Ultimately, Lebron lost his case in district court, and filed a new notice of appeal - now on the ...

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 Named Agents of the Fed. Bur. of Narcotics , 403 U.S. 388, 91 S.Ct. 1999 (1971). The District Court dismissed with orders to file an amended complaint by March 7, 2000. Ordonez filed on March 2, 2001, but failed to comply with a local rule regarding the number of copies. The court clerk did not notify Ordonez of his failure until sixteen days after the deadline.

Ordonez promptly complied with the court rule, but his corrected, amended complaint was not filed until April 3, 2000. The district court dismissed for failure to meet the filing deadline.

On appeal, the Ninth Circuit found that the district court abused its discretion in dismissing Ordonez's complaint. The appeals court ruled that Ordonez constructively filed his amended complaint before the deadline. Failure to satisfy the local rule did not divest the court of jurisdiction. The court held that basing jurisdiction on a ...

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, the public defender, when Cooper stepped into the case and demanded a guilty plea to a felony. Judge Jonathan Link found Cooper was motivated by animus against Tetlow because he was a public defender, not because of any crime he may have committed. Federal judge H. Russell Holland had recently found that Cooper made an "untrue statement" in responding to a contempt motion after she refused to abide by a court decision striking down the state's sex offender registration law.

Connecticut: In March 12, 2002, Anthony Tortorella, 41, a guard at the Federal Correctional Institution in Danbury, pleaded guilty to charges of unlawfully harboring an illegal alien and engaging in sexual acts with female prisoners at the facility. Tortorella admitted to having sex with six different female prisoners while employed at the prison. He also lived for ten months with a former female prisoner who was an illegal alien ...


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