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Prisoner Education Guide

Prison Legal News: August, 2002

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Volume 13, Number 8

In this issue:

  1. News in Brief (p 1)
  2. From the Editor (p 7)
  3. Ill Treatment on Our Shores (p 8)
  4. New Jersey Goes Online with Sex Offender Website (p 11)
  5. Florida Guards Murder Another Prisoner, Get Another Acquittal (p 12)
  6. No 85% on New Jersey Murder Conviction (p 13)
  7. The Parents' Project (p 14)
  8. Prisoner's Guerrilla Handbook to Correspondence Programs in The United States and Canada , 2 nd Ed. (p 15)
  9. Officials Netted in Kansas Jail Bribery (p 16)
  10. Courts Retain Power To Grant TROs Under PLRA (p 16)
  11. Washington PDA May Be Used for Pre-Trial Discovery (p 17)
  12. Kansas Sexual Predator Civil Commitment Standards Refined by U.S. Supreme Court (p 17)
  13. Washington Prisoner Attorney Disciplined for Negligence (p 18)
  14. USPC Reverses Stance on HIV Discrimination after Suit Filed (p 18)
  15. Remand Defeats Georgia DOC's Attempted 11th Amendment Immunity Bar (p 19)
  16. Texas Juvenile Jail Suicide Settles for $100,000 (p 19)
  17. BOP Policy Denying Electric Musical Instruments Upheld; Religious Exception Enjoined (p 20)
  18. Statute of Limitation Tolled by Administrative Exhaustion (p 21)
  19. Wisconsin DOC in Contempt for Not Collecting PLRA Fees (p 21)
  20. Motion Accepted as Appeal Notice; Damage Award Set Off Against Costs (p 22)
  21. New Florida Trend: Abuse in a Spray Can (p 22)
  22. Nevada Juvenile Road Accident Kills Six, Settles for $3.5 Million (p 24)
  23. $54,750 Damages Awarded Asthmatic Prisoner in Michigan ETS Suit (p 25)
  24. Court Criticizes PLRA Attorney Fee Cap (p 26)
  25. States Capitulate on Reading Legal Mail (p 26)
  26. Judge Awards $2.8 Million to Victims of CSC Texas Boot Camp Sexual Abuse (p 27)
  27. Oklahoma Jailhouse Informants Settle Failure to Protect Suit for $80,000 (p 27)
  28. Criminal Guards in Texas (p 28)
  29. CCA Conditions Claim Not Frivolous (p 28)
  30. PLRA and AEDPA Have Different Effects on Prisoner Petitions (p 29)
  31. Court Reviewability of California Parole Denials Survives; No Parole Policy Goes to State Supreme Court (p 30)
  32. News in Brief (p 32)

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 ...

From the Editor

9-11 Immigration Detainees

NJ Sex Offender Website

Florida Guards Acquitted

Parents' Project

S.Ct. on Civil Commitment

$3.5 Million Nevada Settlement

Damages in Michigan Smoking Case

Legal Mail Bans

$2.8 Million TX Boot Camp Award

Texas Guards

California Parole

News in Brief

When people think of the prison
system, they usually think of adults in jail and prisons. The tens of thousands of children in juvenile prisons are rarely considered. In last month's PLN , we reported on the abuse of juvenile prisoners in Kentucky. This month, we report on happenings with Corrections Service Corporation, one of the biggest for profit prison companies in the U.S. that specializes in juvenile prisons. As many states have outsourced their juvenile prisons to private companies, we explore the intersection of greed, profit, child abuse and the human rights of children, the most vulnerable population in the American gulag. Upcoming issues of PLN will explore this topic further.

A whole generation of legislators, pundits and bureaucrats have made careers out of demonizing youth and pushing for more draconian punishments rather than crime prevention and rehabilitation measures. The result is a growing number of imprisoned children being abused in horrific conditions designed ...

Ill Treatment on Our Shores

( On October 24, 2001, Muhammed Butt died of a heart attack at the Hudson County Correctional Center in Kearny, New Jersey. Butt, a Pakistani national, was detained on September 19 by the FBI as a suspect connected with the September 11 attacks. He was then transferred to the Immigration and Naturalization Service (INS), which charged him with a visa violation.

The New Jersey state medical examiner conducted a preliminary autopsy that showed Butt died of natural causes related to a heart ailment," Emily Hornaday, a spokesperson for the state Division of Criminal Justice, told The Washington Post. On October 1, reported The Nation, Butt underwent a routine physical. His blood pressure and medical findings were normal." However, the dentist prescribed a five-day regimen of antibiotics for gingivitis. That's all he complained about," county spokesman Jacob De Lemos told The Washington Post.

Butt's cell mate at the Hudson County facility tells a different story. On January 27, César Muñoz and Allyson Collins of Human Rights Watch visited the Elizabeth Detention Center in New Jersey. Both say they met with the cell mate, whose name the group is not releasing. Muñoz says he is concerned the prisoner could suffer retribution ...

New Jersey Goes Online with Sex Offender Website

A federal district court in New Jersey has denied sex offender plaintiffs Motion for Preliminary Injunction Relief seeking to prevent implementation of New Jersey's (NJ) Internet sex offender registry, but barred the listing of the offenders' home addresses. On November 7, 2000, NJ's electorate approved a public referendum to amend the state's constitution allowing disclosure of sex offender registry information to the general public.

In effect, the amendment sought to expand New Jersey's Megan's Law, which required designated sex offenders to furnish the local police with their name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, exact address of legal residence, and date and place of employment.

The registry information, under Megan's Law, is not made available to the general public absent the signing of a waiver stating the information will not be disclosed to anyone outside the obtainer's household or used to harass or discriminate against he offender, but the information must be distributed to persons likely to encounter the offender.

The classes of persons or organizations to whom this information must be distributed depends upon the offender's classification as a low, moderate, or ...

Florida Guards Murder Another Prisoner, Get Another Acquittal

by David M. Reutter

A state jury has acquitted three Florida prison guards in the murder of death row inmate Frank Valdes. The guards, Captain Timothy Thornton, Sgt. Jason P. Griffis, and Sgt. Charles A. Brown, were exonerated of second-degree murder, conspiracy to commit aggravated battery on a prisoner, official misconduct, and accessory to felony murder. Despite taking months to select a jury and four weeks of trial, the jury rendered its decision in only 3 ? hours. The jury's decision was a result of the paltry job done by the prosecution, the jury's composition, or perhaps both.

Valdes was on death row at Florida State Prison (FSP) for killing a guard while trying to free another prisoner being transported from Glades Correctional Institution to a doctor's office in West Palm Beach. The area around FSP is home to a small rural community that relies upon the $100 million economic impact provided by the employment of 3,000 people who work at the areas five prisons. Of the 11,079 potential jurors available in Bradford County, over 3,000 were called to the courthouse for possible selection in the Valdes murder trial. With only three jurors chosen, of ...

No 85% on New Jersey Murder Conviction

The Supreme Court of New Jersey has affirmed an Appellate Division's holding that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, does not apply to murder. The justices evenly split on this case of statutory construction.

Murder is the only crime for which life imprisonment is an available ordinary sentence in New Jersey (NJ). NERA, though, fails to define what constitutes 85% of life for the purpose of applying NERA's parole ineligibility period. The court cited numerous cases showing due process requires a defendant is entitled to know, with reasonable exactitude, the penalty for the criminal charge to be defended against.

The Attorney General argued NJ parole law makes all prisoners parole ineligible for one-third of the maximum sentence imposed. That law makes life sentences parole ineligible until after 25 years have expired. Therefore, the maximum must be 75 years, and parole ineligible under NERA for 63.75 years.

The Court found NERA's failure to include a provision of eligibility for life sentences suggests the legislature did not intend NERA to apply to murder. To hold otherwise would create the potential that any murder prosecution defendant could contend a statutory ambiguity exists ...

The Parents' Project

by Denise Johnston and Michael Carlin

According to the U.S. Department of Labor, more than 25% of the nation's adult population lives with a criminal record for a substantial portion of their lives. The majority of these adults are parents. The Center for Children of Incarcerated Parents estimates that there are over 1.8 million parents who are prisoners in the U.S., more than twice that number who are probationers or parolees, and several times that number who have been incarcerated for some period during the lifetimes of their minor children.

Prisoners and former prisoners know that family involvement in the criminal justice system has multiple and costly consequencesfor parents, for children and for society.

Major Consequences of Parental Incarceration

The most serious consequence of parental incarceration for parents and children appears to be the dissolution of family bonds. Families of prisoners come permanently apart as the result of 1) lack of services to address pre-existing family problems and issues, 2) lack of supports for maintenance of existing family relationships during and after parental incarceration, and 3) legal and legislative barriers that prevent families from retaining or regaining child custody.

1) Lack of family support services. As ...

Prisoner's Guerrilla Handbook to Correspondence Programs in The United States and Canada , 2 nd Ed.

by Jon Marc Taylor, Biddle Publishing Co., 2002, pb. 341 pages

Review by Hans Sherrer

All across the country DOC educational programs available to prisoners are being reduced or eliminated. That dire situation is compounded by the increasing denial of ready access by prisoners to information about outside educational opportunities. The recently released 2 nd Edition of the Prisoner's Guerrilla Handbook to Correspondence Programs goes a long way to helping fill the educational black hole many prisoners find themselves in.

The book provides contact information and an outline of the courses offered by over 250 educational providers, including many major universities. The book includes information on high school, vocational, paralegal, law, college and graduate courses.

The book has many useful tips and articles for the proactive prisoner, including how to acquire a college degree for less than $2,000. The Prisoner's Guerrilla Handbook to Correspondence Programs is an invaluable resource for any prisoner willing to work to improve their education so they can have a better chance to get a good job and create a life for themselves after their release.

Ordering info: Biddle Publishing Co., PO Box 1305, PMB 103, Brunswick, ME 04011. Prisoner price: $25.95 ...

Officials Netted in Kansas Jail Bribery

A private company, MgtGP Inc., was awarded a $1.5 Million contract in 1997, and a four-year renewal in January 1997 worth $615,000 for that year alone, to run Kansas's Reno County Jail Annex. In May 2001, Reno's Sheriff, Larry Leslie, pled innocent to 34 counts of bribery. Also pleading innocent to bribing Leslie was MgtGP's co-founder and treasurer, Gerald Hertach. MgtGP was named as a defendant. Leslie and Hertach are free on a $300,000 bond.

Hertach had previously received a fee for renting and operating a dormitory at the State Fairgrounds where non-violent prisoners served their sentences. When the agreement with the fairgrounds ended, the county renovated a building next to the courthouse to serve as an annex to the jail. Leslie recommended MgtGP to county commissioners saying it would be cheaper than hiring more county employees.

According to state records, MgtGP was incorporated just 13 days before the county awarded the 1997 contract. MgtGP's annual report to the Kansas State Secretary states the company function is operating "a minimum security jail for the Sheriff of Reno County." Leslie, who earns $59,672 a year as Sheriff, accepted more than $280,000 from ...

Courts Retain Power To Grant TROs Under PLRA

The District of Columbia (DC) Court of Appeals has vacated a district court ruling on the merits of a prisoner lawsuit where the district court also found that the prisoner plaintiffs failed to exhaust administrative remedies prior to filing suit.

Louis Johnson, Isadore Gartrell, Carl Wolfe, and Roddy McDowell are all DC prisoners who are legally required to be in custody of the Federal Bureau of Prisons (BOP) but are in custody of the Virginia Department of Corrections (VDOC). Due to insufficient space, both BOP and DC contracted with VDOC to house DC prisoners. The prisoners are of Rastafarian or Sunni Muslim faith and have strong religious beliefs about beards and hairstyles for men.

On November 15, 1999, VDOC Procedure DOP 864 took effect, banning beards, collar-length hair, and other hairstyles, with strong penalties imposed for violations. Force may be used to compel compliance. Jackson and Wolfe began the grievance process. All four men were granted, a temporary restraining order (TRO) by the district court. No plaintiff completed the grievance process. VDOC responded by screening DC's Rastafarian and Sunni Muslim prisoners and transferring them to BOP custody.

Plaintiffs filed suit under §1983, arguing that DOP 864 violated the First ...

Washington PDA May Be Used for Pre-Trial Discovery

The Washington State Supreme Court held that the Washington Public Disclosure Act (PDA) at RCW § 42.17 et seq, may be used as a pretrial discovery tool to obtain caserelated documents from agencies against whom parties are litigating civil cases.

The issue arose from a civil action filed in the King County Superior Court by Kathleen O'Connor. She sued the State Department of Health Services (DSHS) after Kevin Keo, a DSHS employee molested her minor son in 1997 while he was incarcerated at the Indian Ridge Juvenile Corrections Facility in Snohomish County, Washington.

Denis Sterns of Marler & Clark, a Seattle law firm, represented O'Connor. During the litigation Sterns made PDA requests for caserelated documents of both DSHS and the Attorney General's office. Assistant Attorney General John Kirschner, who represented DSHS in the case, denied the requests.

Kirschner then moved for a protective order under CR 26(a), asking the Court to quash O'Connor's PDA requests and to order her to use the Superior Court Civil Rules to discover caserelated documents. The Court granted the motion.

Sterns then filed a motion for direct review in the Supreme Court of the Superior Court's order disallowing the ...

Kansas Sexual Predator Civil Commitment Standards Refined by U.S. Supreme Court

The U.S. Supreme Court refined its earlier ruling that a sexually violent predator could constitutionally be civilly committed after his criminal sentence had been served by distinguishing sexual misbehavioral impairment classifications into those caused by an uncontrollable mental abnormality and those resulting from volitional acts.

Michael T. Crane was the object of civil commitment proceedings by the State of Kansas because Crane was allegedly a repeat sexual offender (lewd and lascivious behavior; aggravated sexual battery) whose currently diagnosed latent exhibitionism and antisocial personality disorder rendered him a public risk if released.

Relying on Kansas v. Hendricks, 521 US 346 (1997), the Kansas Supreme Court ruled that Crane couldn't be so confined without proof that Crane would always be completely unable to control his behavior. See: In Re Crane , 7 P.3d 285 (Kansas, 2000).

The US Supreme Court disagreed, stating that the Kansas court had read Hendricks too rigidly. Hendricks had denied civil commitment when the prisoner was deemed "difficult" to control. At issue here was if "difficult" meant "impossible."

The U.S. Supreme Court ruled that there could be no bright line rule because psychiatry was an imperfect tool and therefore rejected Kansas' standard that required proof ...

Washington Prisoner Attorney Disciplined for Negligence

by Lonnie Burton

Attorney Jean Scheidler-Brown holds the DOC "free-services" contract to provide legal representation to prisoners incarcerated at McNeil Island Corrections Center (MICC) and the Washington Correction Center for Women, both in Washington state. In April 1997, she agreed to represent MICC prisoner William H. Rayburn in filing an appeal of the District Court's dismissal of his petition for writ of habeas corpus to the Ninth Circuit Court of Appeals. Scheidler-Brown memorialized this agreement in a July, 1997, letter to Rayburn.

On October 24, 2001, however, Scheidler-Brown was disciplined by the Washington State Bar Association (WSBA) for violating Rules of Professional Conduct (RPC) 1.4 and 5.1 for
allowing Rayburn's case to be dismissed and for ignoring Rayburn's repeated attempts to contact her.

Scheidler-Brown had assigned an associate in her office, S. Russell Joe, to complete and file Rayburn's Ninth Circuit brief, which he did on August 25, 1997. Shortly thereafter, Joe left Scheidler-Brown's employ. That's when the trouble began. Between September 9, 1997 and March 17, 1998, Rayburn wrote no less than 10 letters to Scheidler-Brown or her office requesting an update of his case. No one ever responded to Rayburn ...

USPC Reverses Stance on HIV Discrimination after Suit Filed

by Deborah M. Golden

In September 2001, the United States Parole Commission (USPC) issued a Notice of Action that, while not precedent, signifies an important policy and a possible way for prisoners to challenge parole decisions. The case arose after the USPC denied parole to a woman because she was HIV+ and had prior prostitution charges. Reasoning that her HIV made her a threat to the community, the USPC denied her parole. Administrative appeals were denied.

A Habeas Corpus petition was filed in the district of her incarceration, naming the warden and the USPC as defendants. In the petition, we argued:

l. Section 504 of the Rehabilitation Act prohibits the denial of benefits to an otherwise qualified person with a disability under any program or activity conducted by an Executive agency of the federal government. 29 U.S.C. 794;

2.  The USPC is an Executive agency;

3. Parole is a program or activity;

4. HIV is a disability. See, e.g., Bragdon v. Abbott, 524 US 624, 630 (1998).

5. In making any decision that looks at an individual's disability, the USPC must conduct an individualized inquiry into the person's condition, possible threats to the community, and ...

Remand Defeats Georgia DOC's Attempted 11th Amendment Immunity Bar

by John E. Dannenberg

The US District Court (M.D. Ga.) remanded a state prisoner 42 USC §1983 medical indifference civil rights suit back to state court because under state law, defendant Georgia Dept. of Corrections (DOC) could not hide behind an Eleventh Amendment immunity bar there.

Prisoner Danny Iler died allegedly due to inadequate medical care he received while in custody of the DOC. Barbara Ramey, Administrator of Iler's estate, brought suit in Fulton County, Georgia Superior Court against DOC and several individual defendants in both their individual and official capacities. After dismissing a Professional Malpractice claim, Ramey pursued (1) a 42 USC § 1983 federal claim, (2) a Georgia law claim based upon responsibilities for medical care of prisoners and (3) a Georgia wrongful death law.

Defendants successfully removed (i.e., transferred) the case to US District Court, where they moved for summary judgment predicated upon Eleventh Amendment immunity. Ramey responded with a motion to remand the case back to state court. The instant case is concerned solely with the narrow question of whether the suit belongs in state or federal court.

First, the DOC defendants complained that Ramey's motion to remand was untimely, having been filed ...

Texas Juvenile Jail Suicide Settles for $100,000

On October 5, 2001, the Denton County Juvenile Detention Center in Texas agreed to a pre lawsuit settlement of $100,000 in the suicide death of Seth Moss. Moss, 15, was being held in the Center as a runaway. Apparently Moss hung himself thinking that he would promptly be found ...

BOP Policy Denying Electric Musical Instruments Upheld; Religious Exception Enjoined

The United States District Court for the District of Columbia has upheld the Federal Bureau of Prisons (BOP) policy prohibiting prisoners from using or possessing electric guitars or electronic musical instruments. The court enjoined BOP's exception that permitted electric guitars and electronic musical instruments owned by the Religious Services Department and used for religious worship.

Brent Kimberlin and Darrell Rice are BOP prisoners who use electronic musical instruments to produce unique musical expressions. In 1997 Congress passed the "Zimmer Amendment," a get tough-on-prisoners measure, which prohibited BOP funds from being used to provide a variety of "amenities or personal comforts," including "the use or possession of any electric or electronic musical instrument."

In 1995 and 1996, anticipating the statute, BOP administrators issued internal operational memoranda that prohibited the purchase or repair of such musical equipment with BOP money and prohibited prisoners from using personal monies to purchase or repair such equipment and gave prisoners with such equipment until November 1, 1997, to mail the forbidden items home. BOP created an exception for electric guitars and electronic musical equipment owned by the Religious Services Department and used exclusively for worship.

Kimberlin and Rice filed a civil suit challenging the constitutionality ...

Statute of Limitation Tolled by Administrative Exhaustion

The Eleventh Circuit Court of Appeals for the has reversed and remanded for a district court to decide, in the first instance, whether the statute of limitations is tolled by a prisoner's satisfaction of the mandatory exhaustion requirements of 42 U.S.C. § 1997e(a). Prisoner Arsenio Leal filed a civil rights action for the failure of the Georgia Department of Corrections to protect him from attack by another prisoner; negligence in response to the attack; and after a disciplinary hearing, he was placed in isolation, while the prisoner who attacked him was not disciplined. The district court dismissed the complaint for failure to state a claim reasoning it was barred by Georgia's two-year statute of limitations.

The Eleventh Circuit found the complained-of-actions occurred on March 23, 1997, and Leal did not file suit until February 14, 2000. Leal's argument was interpreted by the court as being that the statute of limitations should have tolled while he was exhausting administrative remedies as required by § 1997e(a). The court declined to decide this issue, as it was not raised in the district court, because the suit was dismissed pursuant to the screening procedures of the Prison Litigation Reform ...

Wisconsin DOC in Contempt for Not Collecting PLRA Fees

Wisconsin DOC in Contempt For Not Collecting PLRA Fees

The US District Court (E.D. Wis.) issued an Order to Show Cause to Wisconsin DOC Secretary Jon E. Litscher as to why he should not be held in contempt for declaring he had no further obligation to collect court-ordered filing fees from a prisoner he had transferred out-of-state.

Prisoner-plaintiff Robert Beese had been granted in forma pauperis status in three civil rights actions. Nevertheless, he was required to pay filing fees per the Prison Litigation Reform Act (PLRA), 28 USC §1915(b)(2), by having 20% of any monthly income to his prison trust account (minimum $10 increments) forwarded to the clerk of the court by the Warden having his custody.

Here, Beese had been transferred (for one year) to an out-of-state facility by the Wisconsin DOC. Secretary Litscher wrote the court a "Dear John" letter saying DOC was no longer obliged to continue collecting and forwarding the court-ordered fees until Beese physically returned to Wisconsin.

Relying on Hall v. Stone , 170 F.3d 706 (7th Cir. 1999) and Hall v. Stone , 179 F.3d 1043 7th Cir. 1999), the district court held that because Beese at all times remained ...

Motion Accepted as Appeal Notice; Damage Award Set Off Against Costs

The Eleventh Circuit Court of Appeals has held that a pro se motion must be accepted as a notice of appeal if it states the intent to appeal, and that a jury's damage award could be set off against a plaintiff's liability for costs awarded to defendants when ...

New Florida Trend: Abuse in a Spray Can

Frank Valdes may have accomplished in death what he could not in life: a decrease in prisoner beatings by guards. The problem of abusive guards, nonetheless, has not disappeared after Valdes's murder. The form of the abuse has progressed to frequent gassings. "Before Valdes, we were getting all kinds of complaints about cell extractions _ people being forcibly yanked from their cells and beat up in the process. We don't have those complaints, anymore. Instead, we get complaint after complaint about gas," said Peter Siegel, a Miami lawyer who specializes in prison litigation.

After Valdes's murder, Florida Department of Corrections Secretary Michael Moore responded with some policy changes. Those changes were broadcast into the prisons via videotape that informed prisoners of the necessity for their compliance with orders, obeying rules, and that guards act in good faith. Any use of force used by guards must be videotaped by the guards, and some prisoners have permanent cameras in their confinement areas.

The new rules have still resulted in a 35 percent increase in the allegations of staff misconduct over the three-year period that ended September 30, 2001, reaching 5,198 in the last fiscal year. The use of ...

Nevada Juvenile Road Accident Kills Six, Settles for $3.5 Million

Six Nevada teenagers in a juvenile offender program working to pay off fees and restitution in lieu of doing time in a detention center were struck and killed in March 2000 as they picked up trash on a freeway median near Las Vegas. The families of those teens have agreed ...

$54,750 Damages Awarded Asthmatic Prisoner in Michigan ETS Suit

by John E. Dannenberg

The U.S. District Court (E.D..) awarded an asthmatic Michigan state prisoner $36,500 in compensatory damages and $18,250 in punitive damages after a bench trial determination that Michigan Department of Corrections (DOC) wardens had violated his Eighth Amendment right to be free from ...

Court Criticizes PLRA Attorney Fee Cap

by David M. Reutter
( A federal district court for the Eastern District of Michigan (EDM) has held the Prison Litigation Reform Act (PLRA) caps attorney fees in prisoner civil rights cases, but criticized that holding. Michigan prisoner Blaine Sallier was awarded damages of $13,000 by a jury for a ...

States Capitulate on Reading Legal Mail

by John E. Dannenberg

The disturbing trend of several states to inspect legal mail outside the presence of the prisoner [see PLN Mar. 2002 "State Prisons Abrogate Attorney Client Privilege"] has begun to crumble under court challenges. Begun under the pretext of postSeptember 11, 2001 security concerns, Massachusetts, Virginia, New Jersey, Vermont and Michigan suspended existing regulations requiring inspection of such mail only in the presence of the prisoner.

Vermont's practice was commenced by Correctional Commissioner John Gorczyk early in November 2001, allegedly to curb the threat of biological terrorism. But two weeks later, White River Junction District Court Judge Paul Hudson granted a motion by attorney Kirk Williams not to open the attorney mail of his jail client, Max Emery, until Emery physically receives it. The judge found that there was no evidence of any threat. Vermont Department of Corrections (DOC) Deputy Commissioner Hartman indicated DOC would not appeal.

Virginia DOC Deputy Director Gene Johnson announced their policy to inspect all legal mail on Nov. 19, 2001. State ACLU Director Kent Willis had protested this action. "Nothing happened on September 11 or afterwards to justify the reversal of prisoners as observers of the opening of their legal mail ...

Judge Awards $2.8 Million to Victims of CSC Texas Boot Camp Sexual Abuse

Judge Awards $2.8 million to Victims of CSC Texas Boot Camp Sexual Abuse

On March 5, 2001, State District Court Judge Paul Enlow found Correctional Services Corporation (CSC) criminally liable for the actions of two former employees who sexually harassed three women while they were confined in a CSC-operated ...

Oklahoma Jailhouse Informants Settle Failure to Protect Suit for $80,000

Federal prisoners Curtis Sherfield and Hugh Grayson, who were being held at the Oklahoma County jail on federal drug charges, were given a total of $80,000 in December 2001 to settle their lawsuit against the county after they were beaten when other prisoners discovered the two were snitches.

The ...

Criminal Guards in Texas

Four female guards were each freed from Jefferson County Jail on $6,000 bond early in January 2002 after being charged with crimes involving sex with Texas prisoners. The four women were employed by the Texas Department of Criminal Justice (TDCJ) at the Mark W. Stiles State Prison, a 2,800-man maximum-security facility for men near Beaumont.

Ingrid Fisk, 21, and Monica Mahoney, 22, were each booked on charges of improper sexual activity with a person in custody. Chastity Broussard, 21, and Latisia Trahan, 25, were charged with criminal responsibility for conduct of another. Each charge is a felony punishable by up to 2 years in a state jail and a maximum fine of $10,000.

Late last year, prisoners at the Stiles facility had complained to TDCJ's Office of the Inspector General that female guards were having sex with certain convicts. In response, investigators set up video cameras in Building 18, a 330-man dormitory at the prison.

On December 22, 2001, Fisk and an unnamed prisoner were videotaped entering a bathroom in the dormitory. Several minutes later, Fisk came cut, got a towel, and went back into the bathroom with the prisoner.

Broussard and Trahan, both assigned to ...

CCA Conditions Claim Not Frivolous

The Sixth Circuit Court of Appeals has reversed a Tennessee Federal District Court's dismissal of a prisoner's 42 U.S.C. §1983 claims as frivolous, vacating and remanding part of the lower court's decision with instructions.

David Dellis is a Wisconsin prisoner who was for a time held in private Tennessee prisons operated by Corrections Corporation of America (CCA). Dellis sued CCA and the prisons in which he was incarcerated alleging numerous civil rights violations. After granting Dellis in forma pauperis status, the district court dismissed all claims as frivolous. Dellis appealed.

Citing Nietzke v. Williams , 490 U.S. 319, 325, 109 S.Ct. 1827 (1989), the appeals court defined "frivolous" as a claim lacking a legal or factual basis for argument. The court found that some of Dellis' claims were frivolous, and other claims failed to state a claim for relief under applicable legal standards.

Three of Dellis' claims failure to protect from gang member assaults, excessive use of force, and deprivation of water were not frivolous.

Prison officials have a duty to protect prisoners from violence suffered at the hands of other prisoners." Dellis' refusal of protective custody did not excuse CCA's failure to ...

PLRA and AEDPA Have Different Effects on Prisoner Petitions

In a December 2001 special report, the Bureau of Justice Statistics, a division of the U.S. Department of Justice, determined that the Prison Litigation Reform Act (PLRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) have had significant, but differing, effects on the filing rates of prisoner petitions. The report is the first to characterize statistically the impact of the PLRA and the AEDPA on prisoners. The analysis focuses on the three most-used categories of prisoner petitions: habeas corpus, 28 U.S.C. §§2241, 2254, and 2255; civil rights, 42 U.S.C. §1983; and mandamus, 28 U.S.C. §1361.

From 1980 to 2000, the State prisoner population rose from 305,458 to 1,236,476 men and women. The Federal prison population increased from 24,363 to 145,416 persons in the same period. As prison populations rose, so did the number of petitions filed by prisoners.

Beginning in 1980, the U.S. Congress sought to reduce the number of prisoner civil rights petitions filed by passing the Civil Rights of Institutionalized Persons Act (CRIPA). The number of petitions filed, though, continued to rise, primarily because of the tripling of the State prison population from 1980-1995 ...

Court Reviewability of California Parole Denials Survives; No Parole Policy Goes to State Supreme Court

The California Supreme Court let stand one appellate court's ruling that the California Board of Prison Terms' (BPT) lifer parole denial decisions were subject to court oversight under a "some evidence" standard, but granted a Petition for Review of (and thereby temporarily vacated) another appellate court's ruling on the arguably more difficult question of the alleged arbitrary policy of Governor Gray Davis to prevent all murderers and most other lifers from actually paroling.

In In Re Edward Ramirez , 94 Cal.App.4th 549 (Dec. 2001), the First District Court of Appeal rejected the BPT's separationofpowers argument that they had argued made their parole decisions immune from all judicial oversight. The court also established that parole denials must be based upon "some evidence."

In In Re Robert Rosenkrantz , 95 Cal.App. 4th 358 (Jan. 2002), rev. granted (" Rosenkrantz III "), the Second District Court of Appeal rejected the Governor's argument that his review of BPT lifer decisions was immune from judicial oversight. It affirmed the Los Angeles Superior Court's ruling overturning the Governor's reversal of Rosenkrantz's courtordered parole release because, since no evidence had supported a denial of parole, it necessarily followed that none supported ...

News in Brief

California: On May 1, 2002, the Wasco State Prison banned all smoking by prisoners at the facility, becoming the second state prison in California to do so. Prison officials claimed it was costing $250,000 a year to reprimand prisoners smoking in non smoking areas and to repair damage to lighting fixtures caused by smokers improvising lighters after matches were banned.

Canada: On May 6, 2002, Maurice Mom" Boucher, 48, the head of the Quebec chapter of the Hell's Angels motorcycle club, was sentenced to 25 years in prison for ordering the killing of two prison guards who were actually killed.

Colorado: In March, 2002, officials at the Colorado State Penitentiary in Canon City mistakenly released Clifton Brecha, 30, on parole. As of May 3, 2002, they were still looking for him. Brecha was serving a sentence of life plus 24 years stemming from the death of a prisoner in 1994. Prison officials were unable to explain why or how Brecha was released.

Connecticut: on April 9, 2002, prisoner Jair Ramirez, 23, escaped from the Hartford Correctional Center during a prisoner transfer by hiding in a garage while other prisoners were loaded into a transport van. Ramirez's escape ...


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