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Prisoner Education Guide

Prison Legal News: September, 2002

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Volume 13, Number 9

In this issue:

  1. Boot Camp or Boot Hill? Troubled Teens Suffer From Too Much Tough Love (p 1)
  2. Audit Shows Folsom Prison Mismanaged (p 7)
  3. From the Editor (p 8)
  4. From the Editor (p 9)
  5. Sixth Circuit Rules PLRA 150% Fee Cap Constitutional (p 10)
  6. California Prisoners Remanded to Jail for Resentencing Do Not Accrue Jail Behavior Credits (p 11)
  7. California Prisoner Gets New Heart (p 12)
  8. BOP Prisoner Awarded $900 in Van Accident (p 13)
  9. 7-up To Pull TV Ad Under Pressure from Human Rights Groups (p 13)
  10. Lessons From the Law (p 14)
  11. The High Cost of Prosecuting Capital Crimes (p 14)
  12. Girls Sue Alabama Juvenile Prison for Abuse (p 15)
  13. CYA Suit Alleges Abuse of Juveniles (p 16)
  14. U.S. Supreme Court: No Death Penalty for Retarded; Juries Must Impose Death Sentence (p 17)
  15. PLRA Allows California Religious Preliminary Injunction (p 18)
  16. Georgia Prison Guards Caught in Bondage Videos (p 18)
  17. Connecticut Retroactive Application of 85% Rule Violates Ex-Post Facto (p 19)
  18. Then They Came for the Lawyers: The Persecution of Lynne Stewart (p 20)
  19. Supreme Court: "Reasonable Attempt" Suffices Absent Actual Notice of Forfeiture (p 21)
  20. 9-11 Prompts New Regulations for Prisoner Airline Transports (p 22)
  21. Washington Prisoners Sue DOC for Extortion, Mail Fraud, Criminal Profiteering and Racketeering (p 22)
  22. Louisiana's Administrative Remedy Procedure Unconstitutional (p 23)
  23. Hemorrhoids: A Serious Medical Condition (p 24)
  24. Massachusetts Supreme Court Upholds Ban on Prisoner PAC (p 24)
  25. Multiple Prisoners Proceeding IFP Must Pay Separate Filing Fees (p 25)
  26. Ohio District Court Grants TRO on Grooming Regulations (p 25)
  27. Disputed Material Facts in Failure to Protect Suit Preclude Interlocutory Appellate Review (p 26)
  28. Microsoft Demands $1.5 Million from Texas Prison System for Software Violations (p 26)
  29. No Qualified Immunity for Guards Who Failed to Provide CPR (p 27)
  30. $287,500 Awarded in Texas Jail Rape (p 27)
  31. Florida Guard's Threat of Death Requires Summary Judgment Denial (p 28)
  32. Dental Care Denial Defeats Summary Judgment (p 28)
  33. Washington Sex Offender Therapist Fired for Sex Related Misconduct (p 29)
  34. News in Brief (p 30)
  35. Death Row Prisoners Volunteer to Die (p 32)
  36. Review: The Criminal Law Handbook, 3rd Edition (p 32)

Boot Camp or Boot Hill? Troubled Teens Suffer From Too Much Tough Love

Boot Camp Or Boot Hill? Troubled Teens Suffer From Too Much Tough Love

by Roger Hummel

On February 15, 2002, Charles Long II was arrested on murder and child abuse charges growing from the death of Anthony Haynes. On July 1, 2001 the 14 year old Haynes died while attending an Arizona boot camp operated by America's Buffalo Soldiers ReEnactors Association. Long, 56, was the camp's director. He was also charged with marijuana possession and aggravated assault for allegedly pulling a knife on a young camper.

The medical examiner's office said Haynes died from the unlikely combination of dehydration and near drowning. Without benefit of shade from the summer sun, the teenager had been made to stand in the 114degree desert heat for 5 hours. When Haynes began hallucinating and eating dirt, he was left face down in a bathtub filled with water.

Haynes was not the first teenager to die in a correctional boot camp, the nation's increasingly popular nontraditional sentencing option for juvenile offenders. Since 1980, at least 31 youngsters have perished in these camps under diverse and often suspicious circumstances.

Boot camp programs are modeled after military basic training. Juveniles often enter the ...

Audit Shows Folsom Prison Mismanaged

In December 2001, the state inspector general concluded an excoriating audit of a city-run prison in Folsom, California. The audit was the result of a six-month investigation that met a great deal of resistance from Folsom officials. It "revealed deteriorating buildings, broken equipment, lax supervision of inmates, visitors and volunteers, and easy access on the part of inmates to tools and supplies that could be used as weapons." The audit also noted that the "main front door of the facility could not be locked."

In 1990, the city of Folsom contracted with the state DOC for a set fee per prisoner. The audit also said that prison Director, Wally Smith, was a major part of the problem. Smith averaged a four-hour workday with extended lunch breaks, the report says. His salary averaged $104,265 annually. In 2001 he made $163,922 with a $23,000 bonus. He also received holiday pay even though he hadn't worked a holiday since Dec. 31, 1999. Smith made more than any other prison warden in the state, including the warden of San Quentin whose 6,500-prisoner population is nearly 20 times more than the city-run prison. The audit also showed that Smith received ...

From the Editor

Over the years, PLN has conducted a number of sample mailings to potential subscribers. This has always been a good way to expand our circulation, but such mailings are expensive to do. We have long recognized that our best outreach resource is our readership. To that end, we want to encourage readers to purchase gift subscriptions of PLN for prisoners, family members and friends, activists, organizations, libraries, schools, judges, attorneys, journalists, legislators and others interested in or affected by criminal justice policies. This allows us to target people that our readers think are important.

Other progressive publications have reported great success with this type of promotion. See page 11 of this issue for details. We hope that this will expand PLN 's subscriber base as well as our influence and impact. It is important to note that the gift subscriptions must be for people who are new to PLN and are not current or former subscribers. With the holiday seasons coming up, what better gift than a subscription to PLN ?

PLN 's new cumulative index and article summary, the result of over two years of hard work, has been available for several months now and we are receiving very positive ...

From the Editor

by Paul Wright

Over the years, PLN has conducted a number of sample mailings to potential subscribers. This has always been a good way to expand our circulation, but such mailings are expensive to do. We have long recognized that our best outreach resource is our readership. To that end, we want to encourage readers to purchase gift subscriptions of PLN for prisoners, family members and friends, activists, organizations, libraries, schools, judges, attorneys, journalists, legislators and others interested in or affected by criminal justice policies. This allows us to target people that our readers think are important.

Other progressive publications have reported great success with this type of promotion. See page 11 of this issue for details. We hope that this will expand PLN 's subscriber base as well as our influence and impact. It is important to note that the gift subscriptions must be for people who are new to PLN and are not current or former subscribers. With the holiday seasons coming up, what better gift than a subscription to PLN ?

PLN 's new cumulative index and article summary, the result of over two years of hard work, has been available for several months now and we are ...

Sixth Circuit Rules PLRA 150% Fee Cap Constitutional

by Matthew T. Clarke

The Sixth Circuit court of appeals has held that 42 U.S.C. § 1997e(d)(2), the section of the Prison Litigation Reform Act, which limits losing civil rights defendants' liability to 150% of the damage award, did not violate the Equal Protection component of the ...

California Prisoners Remanded to Jail for Resentencing Do Not Accrue Jail Behavior Credits

California Prisoners Remanded To Jail For Resentencing Do Not Accrue Jail Behavior Credits

For the narrow question of which behavior credits apply to a state prisoner remanded to county jail solely for resentencing, the California Supreme Court ruled that because he was still a convicted prisoner and not a pre-trial detainee, he could not accrue behavior credits per the jail credit scheme, but only those credits of the prison system. Because the award of prison conduct credits is vested in the Department of Corrections, not the courts, the resentencing judge could only award actual days in jail custody, but not any behavior credits. The court expressly noted that this ruling did not cover the distinguishable case of a prisoner returned from state prison for a retrial upon a reversal of his conviction on appeal.

Convicted of multiple felonies, Joe Buckhalter was sentenced under the three strikes law to three consecutive 25-life terms. On appeal, the consecutive sentencing was reversed and he was returned to county jail for resentencing to a single 25-life term. There, he was awarded actual jail time, but not jail behavior credits, which are more favorable than prison credits.

The appellate court ruled that the resentencing court ...

California Prisoner Gets New Heart

In early January 2002, an unidentified California prisoner received a heart transplant at the Stanford Medical Center. It was the first time any state prisoner has received an organ transplant; and it is not without controversy. Inflated prison populations, longer prison sentences, and an aging prison population make prisoner health care a hot topic. Diseases like AIDS and hepatitis C, rampant in the prison community, are fuel for the fire. Add to this the scarcity of donor organs and you have all the ingredients for a raging inferno of controversy.

Russ Heimerich, spokesman for California DOC says, "We don't have a [prison] policy per se.... The courts have told us that inmates have a constitutional right to health care." Then, with a touch of sarcasm, he adds, "You and I don't, but inmates do."

The 31-year-old prisoner that received the transplant is serving a 14-year sentence for robbery. Under normal circumstances the state would circumvent the responsibility for providing the transplant by releasing the prisoner. "What they do is trigger early release or compassionate release to get the inmate out of the system," said Scott Chavez, vice president of the National Commission on Correctional Health Care. "That way ...

BOP Prisoner Awarded $900 in Van Accident

A federal district court in Illinois held that Chong Won Tai, a federal prisoner, was injured due to negligence by the Bureau of Prisons (BOP) and awarded Tai $900 in damages. Tai was injured while being transported from one prison to another in a BOP van when the van was ...

7-up To Pull TV Ad Under Pressure from Human Rights Groups

Under pressure from Stop Prisoner Rape, a nonprofit human rights organization, and nearly 100 other human rights, HIV/AIDS, prisoner rights, and sexual violence organizations, Dr. Pepper/Seven Up, Inc. has decided to stop airing a national television commercial that makes light of rape in prison.

The commercial, created by Young & Rubicam and called Captive Audience, aired during youth-oriented programming on MTV, UPN, FOX, and the WB. In the ad, a 7UP spokesperson hands out cans of 7UP to prisoners. When he accidentally drops a can, he quips that he won't pick it up, implying that he would risk being raped if he were to bend down. Later in the ad, a cell door slams, trapping the spokesperson on a bed with another man who refuses to take his arm from around him.

Philippa Dworkin, vice president of corporate communications for Dr. Pepper/Seven Up, Inc., told Lara Stemple, executive director of SPR, that the ad would be taken off the air in response to the protest.
This commercial was perpetuating the kind of callousness that allows sexual abuse to continue in so many prisons virtually unchecked," said Stemple. We're very glad to hear that 7UP has decided ...

Lessons From the Law

by Mumia Abu Jamal

For many jailhouse lawyers, the texts of court rulings are read with a close and rapt attention that would be the envy of any conscientious law professor. The writer knows one guy, who, after years of study of criminal law cases, can recite from sheer memory, the names of cases, their citations, and large swathes of the written opinionword for word. If he were not a denizen of death row he could probably pass the toughest bar exam in America.

Guys like him are astute students of the law, who, unlike their free and licensed counterparts "in the world," study legal texts not as a tool to make a living (other than the occasional candy bar, cigarette or cup of java), but to save a life or free a friend.

If those men and women could be united in one body they would constitute the largest law firm in the nation. But to be a student of the law necessarily means more than simply reading, reciting or even analyzing the law as written by the courts. It must mean understanding that the law is a political enterprise, and that the law develops according to the political ...

The High Cost of Prosecuting Capital Crimes

As many local governments are discovering, there is a new twist on an old saying: Nothing is certain except the death penalty and higher taxesand the high cost of capital punishment.

Quitman County in Mississippi raised taxes three times in the 1990s and took out a $150,000 loan to pay for the 1990 capital murder trials of two men. Now, the county is having difficulty attracting new businesses because its property taxes are higher than any nearby county.

In July 2001, when Cecil Gurr, a rural Utah police chief, was shot to death after responding to a call about a domestic disturbance, the decision to seek the death penalty was easy. The hard part will be paying for the trial. Tiny Uintah County hopes to avoid raising taxes by spreading the costs over 3 years.

Jasper County in east Texas ran up a huge bill seeking capital murder convictions of three men who were accused of killing James Byrd Jr in 1998 by dragging him behind a pickup truck. The $1.02 million cost to date is expected to go higher even as the county raises property taxes to pay the bills.

The Texas Office of Court Administration estimates ...

Girls Sue Alabama Juvenile Prison for Abuse

Five girls who were incarcerated at the Chalkville juvenile lockup in Alabama have filed a massive $171 million lawsuit against the agency that runs the jail, the Department of Youth Services (DYS). The suit charges, among other things, that the girls were the victims of repeated and routine sexual abuse by jail staff. A separate suit had been filed against a Youth Services security guard, claiming the guard raped a teenage girl at the Chalkville jail.

Alana Williams, who was sixteen years old when she was booked into Chalkville in early 2001, has been in and out of trouble with the law for years. But nothing in her past prepared her for, or made her deserving of, what she encountered at Chalkville.

Only moments after arriving at the juvenile jail, a guard cursed her, calling her a "cocky little heffer." She later heard stories about girls performing sex acts on male staffers in return for favors. Williams said that eventually she, too, became intimate with a male guard. In return for sex acts the girls would receive goodies like cokes, Williams said.

But the facts detailed in the lawsuit describe a much more disturbing pattern of sexual abuse. Williams, along ...

CYA Suit Alleges Abuse of Juveniles

The California Youth Authority (CYA) houses 6,000 juvenile offenders and was once considered a model for juvenile justice in this country. However, after decades of declining funding and worsening conditions, the California Youth Authority has deteriorated to where severely mentally ill juveniles go untreated, teachers do not show up for work or quit after only months on the job, and wards are subject to assault by both staff and other wards and are locked in filthy cells for 23 hours a day. These conditions and others prompted a federal class action lawsuit, filed by eleven CYA wards alleging that they and all wards are subject to inhumane, illegal and unconstitutional conditions. The lawsuit seeks a declaration from the federal district court that the conditions within the CYA are unconstitutional and an injunction requiring the CYA to improve them.

Mental health care in the CYA falls far below minimal constitutional standards and in many cases leaves mentally ill wards in worse condition when they leave CYA. Wards reported that if they are suicidal they are put in isolation cells or "camera rooms" for 72 hours where they are stripped and left unattended except for intermittent monitoring by closed circuit cameras ...

U.S. Supreme Court: No Death Penalty for Retarded; Juries Must Impose Death Sentence

June was a good month for many death row prisoners. In Ring v. Arizona , 122 S.Ct. 2428 (2002) and Atkins v. Virginia , 122 S.Ct. 2242 (2002), the Supreme Court placed new and significant limitations on the death penalty. These decisions could affect hundreds of prisoners.

In Atkins , the Supreme Court decided that executing a retarded person violates the Eight Amendment's prohibition on cruel and unusual punishment. As the Court noted, "retarded" is typically defined as significantly subaverage intellectual functioning, accompanied by significant impairment of normal life skills. People with an IQ score of 70 or below are generally considered retarded. Prior to Atkins , the Supreme Court had merely required capital juries to consider mental retardation as a mitigating factor.

Atkins should apply to any mentally retarded prisoner who is facing a capital trial, or who has been sentenced to death but his direct appeals are not yet "final." A conviction is final once the direct appeal has gone through all levels of the state courts, and the time for filing a petition for a writ of certiorari in the Supreme Court has expired (or the Supreme Court has denied a petition). It is not yet clear whether ...

PLRA Allows California Religious Preliminary Injunction

by David M. Reutter

The Court of Appeals for the Ninth Circuit has upheld the grant of a preliminary injunction to California Muslim prisoners .See: Mayweathers v. Terhune, 136 F. Supp. 2d 1152 (E.D. Cal. 2001). Prison officials appealed the injunction arguing that: the prisoners lacked standing; the district court had no jurisdiction to enter a second injunction after the notice of appeal was filed; and the district court abused its discretion in entering the injunctions. The injunction barred disciplinary action against Muslim prisoners for attending Jum'ah services and missing work or educational assignments.

In order to have standing, a plaintiff must allege "actual or imminent harm." "The status of being subject to a governmental institution that was not organized or managed properly" does not raise a prisoner's claim to the level of a claim or controversy. In this case, the prisoners claimed they were subject to disciplinary action for unexcused absences to attend Jum'ah services on Fridays. Therefore, they face the choice between following work program rules and obeying the Qur'an. The court held that the prisoners have standing to seek injunctive relief.

The defendants then filed a notice of appeal. The court entered ...

Georgia Prison Guards Caught in Bondage Videos

More than 150 law enforcement officers from various Georgia agencies including the Department of Corrections, have been moonlighting as actors in gay bondage videotapes since 1980. Sold over the internet, the tapes include scenes of kidnapping and torture.

In November 1999, Hays State prison guards Roy Utt and Lt. Joe Johnson were ordered to stop working as actors for the company making the videos, Academy Entertainment. Although a new Georgia DOC policy forbids actions that would reflect discredit on the department, prison officials admit they are powerless to stop the sale of the videotapes on Internet sites that sell sexually-oriented material to gay men.

Johnson and Utt were both given "verbal warnings" and "heavy counselling," but were not punished further because both guards had "good work records." Hays State Prison warden Billy Tompkins said both guards were embarrassed "and said they were sorry for having done it."

According to its Web site, Academy Entertainment "offers unique videos featuring domination . . . with real military and law enforcement personnel to achieve and unparalleled level of realism." Academy advertisements offer an "opportunity" to stay at a fake prison that "caters to men who are curious about brig and prison life but do not want ...

Connecticut Retroactive Application of 85% Rule Violates Ex-Post Facto

The Connecticut Supreme Court has decided that retroactive application of a State law raising the time for parole eligibility from 50% to 85% of time served violates the ex post facto clause of the U.S. Constitution. The court further found that the law in question was not intended to apply retroactively. The ruling affects about 800 Connecticut prisoners.

Since the 1990's, many States have passed "Truth in Sentencing" laws to qualify for federal grants. To obtain the grants, States must require certain violent offenders to serve 85% of their sentences before becoming parole eligible. In Connecticut, Public Act (P.A.) 95-255 implemented the "85% rule," effective July 1, 1996.

On November 10, 1995, Dwayne Johnson was arrested. On September 24, 1996, he pleaded guilty to first degree assault, first degree reckless endangerment, and carrying a pistol without a permit. On November 10, 1996, Johnson was sentenced to fifteen years in prison. In August 1998, the Connecticut parole board notified Johnson that he must serve 85% of his sentence before parole eligibility. The board reasoned that even though Johnson committed his crime prior to July 1, 1996, the 85% rule applied to him because he was sentenced after the ...

Then They Came for the Lawyers: The Persecution of Lynne Stewart

On April 9, 2002, in a chilling first application of the USA-Patriot Act (pushed into law after 9-11), the U.S. government indicted attorney Lynne Stewart along with three Arab men, Mohammed Yousry, Ahmed Abdel Sattar, and Yassir Al-Sirri. Lynne Stewart is the lawyer for Islamic cleric Omar Abdel Rahman, who was convicted and sentenced to life for seditious conspiracy in connection with supposed plots to attack New York landmarks. Prosecutors claimed these plots were part of the 1993 bombing of the World Trade Center.

Stewart was arrested and indicted chiefly because of conversations that are supposed to be constitutionally protectedthat between an attorney and client.

The government says that Lynne Stewart, Mohammed Yousry, who is Rahman's translator, Ahmed Abdel Sattar, a paralegal, and Yassir Al-Sirri violated "special administrative measures" that restrict Rahman's communications with the outside world. Prosecutors say the four helped Rahman pass messages back and forth between Rahman and his organization, the Islamic Group.

Stewart is accused of speaking up in English to distract anyone listening so that Yousry could communicate secretly with Rahman in Arabic. The government says that those indicted were giving "material support" to "terrorists." U.S. prosecutors waited two years _ ...

Supreme Court: "Reasonable Attempt" Suffices Absent Actual Notice of Forfeiture

by John E. Dannenberg

The US Supreme Court held that due process of law was satisfied when a reasonable attempt was made to serve a federal prisoner with a statutory notice of administrative forfeiture of his property, even though he never received that notice.

Larry Dusenberry was arrested in April 1986 at his Ohio home on federal drug possession charges to which he later pled guilty and was sentenced in US District Court to 12 years plus 6 years special parole. Pursuant to warrant, the FBI searched his home and seized drugs/paraphernalia, weapons, an automobile and $21,939 in cash.

Two years later, the FBI obtained court approval to destroy the drugs and weapons. But because the value of the remaining property did not exceed $100,000, the FBI was able to initiate administrative forfeiture procedures for its disposal, and, absent any ownership claims, the cash was subsequently given to the US Marshal's Service.

At issue here was the adequacy of the notice to Dusenberry that his property would be forfeited if he didn't claim it. The FBI followed 19 USC § 1607(a) with newspaper advertising and by sending certified mail notices. The one sent to Dusenberry ...

9-11 Prompts New Regulations for Prisoner Airline Transports

Following the terrorist attacks of September 11, the Federal Aviation Administration (FAA) transferred its rulemaking authority regarding civil aviation security to the Transportation Security Administration (TSA). The TSA subsequently promulgated new rules regarding the transportation of prisoners on civilian airlines.

The new regulation, 49 C.F.R. § 1544.221, effective February 17, 2002, requires that all prisoners be classified as either high or low risk. A "high risk prisoner" is any prisoner who is an exceptional escape risk and has been charged with, or convicted of, any violent offense. Each low risk prisoner must be escorted by at least one armed law enforcement officer during the flight, while high risk prisoners require at least two guards. In either case, the prisoner's identity and classification must be disclosed to the airline. The new rule was adopted without prior notice or public comment.

The new regulation also mandates the airline to provide priority boarding for prisoners, and to seat them in the rear of the plane, if at all possible. Airline personnel are also prohibited from serving prisoners food or beverages without prior approval of the escorting official.

The most significant aspect of the new regulation is that it requires all ...

Washington Prisoners Sue DOC for Extortion, Mail Fraud, Criminal Profiteering and Racketeering

Four Washington state prisoners have filed suit against the Department of Corrections (DOC) over DOC's longstanding practice of charging prisoners to ship their own personal property when they are transferred from one institution to another, and doing so under the threat that their property would be destroyed if they failed to pay.

The suit, filed by prisoners Lonnie Burton, Gordon Lobar, James Brigham and Michael Holmberg, alleges that DOC property policy 440.000 violates state law. That law, RCW 72.02.045(3), quite clearly states that "when convicted person are released from the confines of [an] institution on transfer," the superintendent of the sending institution is responsible to deliver "all funds and valuable personal property" to them. Instead, DOC has been requiring its prisoners, since at least 1994, to arrange and pay to ship their own property. DOC policy 440.000 was changed in 1994 apparently in response to numerous claims filed against the state over negligence and damages incurred when prison staff routinely mishandled prisoners'
property upon transfer. DOC's solution was to change its policy to require all property in excess of two small boxes to be shipped via UPS at the expense of the prisoner ...

Louisiana's Administrative Remedy Procedure Unconstitutional

by Matthew T. Clarke

The Supreme Court of Louisiana has declared that the Corrections Administrative Remedy Procedure (CARP), La.Rev.Stat. 15:1171-1179, when applied to tort claims, violates article V,16 of the Louisiana constitution.

Michael Wayne Pope, a Louisiana state prisoner, was severely injured on his prison job, requiring multiple surgeries and lengthy hospitalization. Four and a half months after being injured, Pope filed a tort action against the Louisiana Department of Public Safety and Corrections. Prison system rules require that prisoners use the CARP procedures before proceeding with a suit in -state or federal court. CARP states that it provides the exclusive remedy available to prisoners. The state tried to have the suit dismissed because Pope had not timely exhausted his CARP-mandated administrative remedies, alleging that this denied the district court jurisdiction and constituted claims abandonment. Pope challenged CARP's constitutionality.

The district court overruled the state's motions because Pope was physically unable to file the administrative remedy within the 30-day limit. The state appealed the ruling. A strongly divided court of appeals panel peremptory reversed the district court, dismissing the tort action with prejudice.

Pope petitioned the Louisiana supreme court for a writ of certiorari ...

Hemorrhoids: A Serious Medical Condition

A federal district court in Illinois has denied a motion to dismiss a complaint for the failure to alter treatment for a prisoner's hemorrhoid problem. Prisoner Brian Jones brought a 42 U.S.C. § 1983 action against six medical doctors at Illinois' Stateville and Joliet Correctional Centers. The defendants sought dismissal based on their failure to be actors under the color of state law, as they were private physicians under contract with the state; and Jones only disagreed with the treatment rendered, and they were not deliberately indifferent to his condition.

The court found that the Supreme Court in West v. Atkins, 108 S. Ct. 2250 (1988) held that a private physician under contract with the state to provide medical care on a part-time or full-time basis to prisoners was a state actor within the meaning of § 1983. Each of the defendant doctors were employed by the State at the time of Jones' incarceration. The crucial inquiry, therefore, is whether Jones was deprived a constitutional right.

The court held that it is well established hemorrhoids are a serious medical condition. Over a two-year period the doctors performed surgery on Jones' hemorrhoids three times. Jones continued to ask for treatment ...

Massachusetts Supreme Court Upholds Ban on Prisoner PAC

The Massachusetts Supreme Court has upheld summary judgment against the Massachusetts Prisoners Association Political Action Committee (MPAPAC). The court also upheld disciplinary sanctions by the Massachusetts Department of Corrections (DOC) against MPAPAC cofounder Michael Shea. The ruling largely destroys MPAPAC.

Shea, four other DOC prisoners, and Sandra Currie, a free citizen, formed MPAPAC in August 1997 for the purpose of educating prisoners and the public about prison issues, registering prisoners to vote, and raising money for political candidates open to prison reform [ PLN , Dec. 1997]. Since then, MPAPAC has fizzled under state repression.

MPAPAC registered with the Office of Campaign and Political Finance on August 11, 1997. The next day, the governor issued an executive order declaring prisons "public buildings" under General Law (G.L.) c.55, §14. Political fund-raising in Massachusetts is not permitted in public buildings. The order banned prisoner PACs, and ordered DOC to confiscate political fund raising materials from prisoners and impose disciplinary sanctions on, and refer for criminal prosecution, prisoners possessing political fund-raising materials. On August 13, 1997, DOC officials searched the cells of MPAPAC's registered prisoner members and confiscated MPAPAC-related material, including a letter to a prisoner soliciting donations to MPAPAC from Shea ...

Multiple Prisoners Proceeding IFP Must Pay Separate Filing Fees

The Eleventh Circuit US Court of Appeals held that multiple prisoners, when asserting in forma pauperis (IFP) status in a federal civil rights action, cannot join their claims to pro-rate a single filing fee among all the plaintiffs.

Earnest Hubbard led a group of 18 Alabama prisoners in a pro se 42 USC §1983 Eighth Amendment civil rights complaint against Alabama prison officials alleging inadequate medical care and diet at the St. Clair Correctional Facility.

Their case stalled in US District Court (N.D. Ala.), however, when the court dismissed the joint complaint without prejudice so that each plaintiff could proceed IFP, filing a separate complaint and paying the requisite 28 USC § 1915(b) filing fee. A motion for class certification was denied.

The problem repeated itself when the plaintiffs filed a joint notice of appeal, and sought to divide the appellate filing fee. But the appellate court treated the appeal as being lead-plaintiff Hubbard's alone and required only one appellate filing fee.

Analyzing the Prison Litigation Reform Act's (PLRA) fee provisions of 28 USC §1915, the appellate court determined that Congress intended to deter prisoner litigation by imposing filing fees on indigent prisoners who declared IFP. It ...

Ohio District Court Grants TRO on Grooming Regulations

The Federal District Court for the Northern District of Ohio has granted a temporary restraining order (TRO) against Marion Correctional Institution (MCI), Marion, Ohio, preventing Warden Christine Money from enforcing a grooming policy against two Orthodox Chassidic Jews.
Michael Goodman and another Department of Rehabilitation and Correction (DORC) prisoner named West are orthodox, sincere, practicing Chassidic Jews. Both maintain long beards and sidelocks as tenets of their faith. Both transferred from another DORC prison to MCI with assurances they could practice fully all reasonable tenets of their religion. Upon arrival at MCI, they were ordered, without explanation, to comply with MCI's grooming policy and trim their beards and sidelocks.
Goodman and West filed for a TRO. The District Court, reviewing and citing Flagner v. Wilkinson, 241 F.3d 475 (6th Cir. 2001) [PLN, March 2002], held that, although DORC's grooming policies may be enforceable," the situation was similar to Flagner, where the court found that the grooming regulations may reflect ... an exaggerated response to or not done for the asserted security concerns.
The court also found that Goodman and West would be irreparably harmed if the regulation was enforced. No one would be harmed by non-enforcement of the ...

Disputed Material Facts in Failure to Protect Suit Preclude Interlocutory Appellate Review

The Sixth Circuit Court of Appeals has ruled that it is without jurisdiction to hear an interlocutory appeal on qualified immunity issues where material facts are in dispute. The Court of Appeals let stand most of a district court's denial of qualified immunity to Ohio Department of Rehabilitation and Correction (DORC) officials in a supervisory liability case.

Jane Doe is the pseudonym of a male prisoner in DORC's protective custody (PC) at Warren Correctional Institution (WCI). Doe has a diagnosed case of gender identity disorder, appears and dresses as a woman despite being biologically male, and was in PC to prevent assaults from other prisoners. Hiawatha Frezzell was also in WCI PC, because he testified against prisoners involved in the 1993 Lucasville Riot. Frezzell has a history of assaulting other prisoners and has been labeled by DORC as a predator.

On July 11, 1996, Frezzell punched Doe in the back of the head and threatened to kill her. Doe reported the incident on July 12, 1996, to Richard Kemp, PC unit manager, and Tom Schweitzer, PC unit case manager. Kemp and Schweitzer both ordered Frezzell to stay away from Doe and alerted guards and shift captain Ronald Stratton ...

Microsoft Demands $1.5 Million from Texas Prison System for Software Violations

Microsoft Corporation, the computer software giant based in Redmond, Washington, has demanded a $1.5 million payment for software "licensing shortfalls." The demand was made on the Texas Department of Criminal Justice (TDCJ), the agency that operates the state's massive prison and parole system.

In 2001, the TDCJ audited its more than 11,000 personal computers to count the Microsoft programs in use and determine how many had proper licenses. At the same time, Microsoft checked its internal records to determine how many licensed programs the prison system had. Thereafter, Microsoft sent the Texas prison system a bill for $1.5 million to bring about 6,000 computers into compliance.

"We didn't feel like we owed that much," said TDCJ spokesman Larry Todd. "We didn't think we had that many PCs out of compliance. We thought we had, maybe, 1,000 PCs that may, and I say may, have needed to be upgraded and brought into compliance. We don't believe any employee willfully or intentionally used a program for any sinister or illegal purposes," Todd added.

Microsoft disagreed. On February 19, 2002, Microsoft sent a demand letter to Art Mosley, Deputy Executive Director of the TDCJ ...

No Qualified Immunity for Guards Who Failed to Provide CPR

No Qualified Immunity for Guards who Failed to Provide CPR

The U.S. Court of Appeals for the Eighth Circuit struck down a district court's grant of qualified immunity and summary judgment in favor of three Nebraska prison guards who had failed to administer cardiopulmonary resuscitation (CPR) to a prisoner who lay dying on the recreation yard.

In July 1995, Frank Tlamka apparently suffered a heart attack and collapsed on the Nebraska State Prison yard. Three fellow prisoners attended Tlamka and promptly administered CPR. Tlamka showed signs of responding. His color improved, his eyes opened, and his chest began to heave.

Minutes later, three prison guards arrived on the scene and immediately ordered the prisoners to discontinue CPR. Despite the order, the prisoners continued their resuscitative efforts. Otha Serrell, a prison guard, then ordered the prisoners to desist and clear the area. The prisoners reluctantly complied with Serrell's order while arguing that it was imperative to continue CPR.

As efforts to revive him were abandoned on Serrell's orders, Tlamka's condition deteriorated. He turned blue and his chest made quick, jerky movements. Although each of the three guards was trained to administer CPR, none approached Tlamka to ...

$287,500 Awarded in Texas Jail Rape

On February 19, 2002, a federal jury in Lubbock, Texas, awarded $287,500 to a former prisoner raped in the Lamb county jail. The plaintiff, who used the pseudonym, J.L., suffers from scoliosis and brain damage. He was serving a 29-day sentence on unspecified charges. J.L. had asked ...

Florida Guard's Threat of Death Requires Summary Judgment Denial

A federal district court in Florida has denied summary judgment to a guard that threatened violence against a prisoner who filed a lawsuit against the guard's brother. While confined at Florida's Liberty Correctional Institution, prisoners Joseph Wilson and David Croft filed a lawsuit against Sgt. Michael Silcox. On at least six occasions thereafter, Sgt. Silcox's brother, guard Ricky Silcox, threatened to kill or cause serious harm to Wilson because of the lawsuit.

Guard Silcox told Wilson that his brother worried every morning if he was going to have a job. Because of that, Silcox was going to make Wilson worry every morning if this would be the day he got his "ass beat to death." Silcox bragged that he and his brother had injured or killed several prisoners at another prison but were acquitted, and that they would "bury" Wilson and Croft. Shortly after an Inspector General's investigation was conducted, Wilson was transferred.

The court did not accept most of the affidavits submitted by Silcox from other guards because it was unclear where the affiants were or if they heard any statements made. Additionally, several of the affiants indicated they were not present at the relevant ...

Dental Care Denial Defeats Summary Judgment

A federal district court in Illinois has denied summary judgment in a prisoner's denial of dental treatment claim under the Eighth and Fourteenth Amendments, and expounded on the relations back upon amendment provision of Fed.R.Civ.P. 15(c). While a detainee at the Cook County Jail (CCJ), Henry Manney started complaining daily in December 1996 about a minor toothache. From June to September 1997, Manney attested it was "ridiculous," "unbearable," and that he could not describe the pain. After he was transferred to state prison in October or November 1997, Manney received dental treatment for extraction of four teeth.

The defendants sought summary judgment after Manney sued. The Court held a jury must resolve the existing disputes of fact of how many times defendant D. Monroe, a dental hygienist at CCJ, or a dentist treated Manney and if that treatment was woefully inadequate; and if Monroe ignored Manney's daily complaints as she passed his cell. When Manney saw a dentist the only treatment rendered was an examination, x-rays, and pain medication. As Monroe had the ability to schedule dental exams, a jury could find she was deliberately indifferent to Manney's condition by holding that merely ...

Washington Sex Offender Therapist Fired for Sex Related Misconduct

Thomas Smith is again in hot water over his seemingly endless sexoriented misconduct. On February 12, 2002 he was fired from his therapist position at the Special Commitment Center (SCC) on McNeil Island near Steilacoom, Washington. He had "treated" civilly committed sex predators imprisoned at the SCC since 1999. Smith was fired for counseling sex offenders to deal with their sexual urges by visiting prostitutes, and for using his work computer to visit an escort service Web site.

In April 2001, Smith was formally reprimanded after several female coworkers at the SCC complained about his constant lewd remarks at work. Smith's reprimand, however, was accompanied by a job promotion. [ PLN , Nov. 2001, "Washington's Island Of Deviant Doctors."] Although difficult to fathom, one can only conclude that the job promotion simply didn't send a stern enough message, considering the reasons for Smith's termination.

The Washington State Patrol investigated Smith between April 9, and August 6, 2001. That investigation revealed that Smith had used his work computer to visit websites thatdisplay partially nude females 57 times between those dates. Also, about 85% of Smith's emails on his computer during that time were personal rather than work related ...

News in Brief

California: On June 24, 2002, San Francisco prosecutor Floyd Andrews pleaded not guilty to felony assault charges stemming from his stabbing of Martin Stanley when he caught Stanley urinating on a fence in front of his home. Andrews stabbed Stanley seriously enough to expose his intestines and sever part of his liver. Andrews also faces misdemeanor charges of misrepresenting himself as a peace officer and making criminal threats against another man who slept in a truck near Andrews' home. Andrews is also charged with battery and corporal injury on a child for hitting his daughter.

California: On May 13, 2002 HIV+ prisoners at the Chronic Infectious Disease Unit at the state prison in Corcoran staged a one day medication strike to protest inadequate medical care and harsh unit conditions. A new prison doctor, with no experience in HIV/AIDS treatment, had taken all HIV+ prisoners off all pain medications despite the fact that many suffer from painful conditions. The prison lacks any HIV specialists on its staff.

California: On November 13, 2001, Robert Bowman, 66, a former doctor at the Valley State Prison for Women in Chowchilla was acquitted by a Madera county jury of felony charges that he sexually ...

Death Row Prisoners Volunteer to Die

Late in 1997, Arizona began moving death row prisoners to a super-maximum security facility. There, they are held in small, separate cells for 23 hours a day with almost no interaction with other human beings.

In Florida, prison officials recently added a mesh to the outside of death row cells so prisoners can no longer see out. In November, 1999, prisoners were given a memo that read: "Effective Monday, November 29, 1999, standard ink pens and pencils are now considered contraband."

In Oklahoma, which, thanks to the falsified laboratory reports of now-disgraced police chemist Joyce Gilchrist, led the nation with 18 executions in 2001, death row prisoners are housed in an underground facility where they never see direct sunlight.

In Texas, condemned men were previously held at the O. B. Ellis State Prison where they could work 4 hours daily, see out of their cells, and enjoy recreation together. In 1999, following an unsuccessful escape by seven death row prisoners, the condemned men were moved to the recently renamed Allan B. Polunsky State Prison where they are locked up virtually all the time, have no view out of their cells, and make brief, solitary visits to the recreation yard.

As ...

Review: The Criminal Law Handbook, 3rd Edition

by Paul Bergman and Sara J. Berman-Barrett. Nolo, 606 pages, paperback, $29.95

A sure-fire method to eliminate future overcrowding of our nation's prisons would be to compel each aspiring scofflaw to read the third edition of The Criminal Law Handbook before his or her 18th birthday. If we agree that forewarned is forearmed, then the handbook would warn and arm each reader against the loss of their liberty and freedom to the criminal justice system.

While not intended as a post-conviction handbook for prisoners, this remarkably well written, logically organized, and easy-to-understand book delivers the unadorned facts on the workings of the criminal justice system in the United States. From a suspect's first encounter with police to last-resort post-conviction remedies, the authors describe each step of the search-and-seizure, arrest, bail, arraignment, indictment, plea bargaining, trial, rules of evidence, sentencing, and appeal processes.

Much of the material is presented in question-and-answer format. The authors often draw upon the trials of such renowned defendants as Timothy McVeigh and 0. J. Simpson to add realism to an otherwise dry point of law or procedure.

With abundant references to U.S. Supreme Court decisions (full citations and a table of cases ...

 

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Disciplinary Self-Help Litigation Manual