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Prisoner Education Guide

Prison Legal News: January, 2003

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Volume 14, Number 1

In this issue:

  1. Washington Prison Health Care Substandard (p 1)
  2. From the Editor (p 5)
  3. Habeas Hints: Procedural Update (p 6)
  4. The Long Silence: Federal Prisoners' Fight to Get the Word Out Reaches Unprintable Extremes (p 8)
  5. Book Review: From Prison to Home (p 10)
  6. North Carolina Jail Fire Kills Eight Prisoners (p 11)
  7. Alabama DOC Quickly Settles Prison Working Conditions Suit (p 12)
  8. Hustler Magazine Survives Arizona Prison Obscenity Test (p 13)
  9. Los Angeles County Settles Overdetention Suits for $27 Million (p 14)
  10. Sexual Assault Violates Eighth Amendment (p 14)
  11. Wackenhut Warden and Six Guards Convicted In New Mexico Prisoner Beatings (p 15)
  12. California's Parole Revocation System Violates Due Process (p 16)
  13. Virginia Guards Acquitted of Assaulting Prisoner (p 17)
  14. Sentence Commuted for Sexually Assaulted New Mexico Prisoner (p 19)
  15. Ninth Circuit Upholds BOP's Prorated Good Time Formula (p 19)
  16. Inartful Pro Se Exhaustion of Administrative Remedies Survives Motion to Dismiss (p 20)
  17. Deaf Michigan Prisoner's ADA/RA Suit Survives Dismissal Challenge (p 20)
  18. USPC Parole Revocation Policies Violate Due Process (p 21)
  19. Trial in Prison Violates Oregon's "Public Trial" Guarantee (p 22)
  20. Amendment of Complaint to Identify Unknown Defendant Denied (p 22)
  21. Denial of Wheelchair Claims Survive Summary Judgment (p 23)
  22. PLRA Does Not Apply to Juvenile Facilities; $379,000 Attorney Fees and Costs Awarded (p 24)
  23. Excessive Force and Delaying Medical Treatment Defeats Dismissal (p 25)
  24. Diabetic's Amputation Suit Set for Trial (p 25)
  25. No Immunity for Failing to Protect Murdered Informant; Correctional Industries Employees Are State Actors (p 26)
  26. Colorado Ad-Seg Decisions Subject to Judicial Review (p 26)
  27. 7th Circuit: PLRA Exhaustion Requirements Retroactive; BOP Has Late Grievance Hardship Exception (p 27)
  28. $27,848.30 Award in Texas Jail Slip and Fall Upheld (p 28)
  29. A Jailhouse Lawyer's Manual, Fifth Ed. and 2002 Supplement (p 28)
  30. Less Restrictive Alternatives Must Be Considered in Washington Sex Predator Commitments (p 29)
  31. Brutal Jail Conditions Warrant Reduced Federal Prison Sentence (p 29)
  32. News in Brief (p 30)
  33. FLSA Inapplicable to Oklahoma Prisoners in Private Prisons (p 31)
  34. 7th Circuit Denies Qualified Immunity on ETS Claim (p 31)
  35. All Aspects of Inadequate Medical Need Not Be Exhausted (p 32)

Washington Prison Health Care Substandard

When Leland Workman's heart faltered while he was imprisoned at McNeil Island Correction Center, the nurses couldn't find the IV equipment needed to ease his chest and arm pain.

They couldn't find standing orders for managing emergencies when there's no doctor on duty at the island prison.

They knew they had to get Workman to a mainland hospital, but staffers couldn't figure out how to start the boat, according to state records. And when the prisoner suffered cardiac arrest in the ambulance, they didn't have equipment on board to help him.

They rushed him back to the prison clinic, where Workman nearly died amid a series of medical failings from clinicians who couldn't run the defibrillator to useless trauma equipment.

The events of that day in December 1999 reflected broader problems of poor training, unreliable equipment and inadequate staffing, a state Health Department inspector found.

They are failings that had been documented before, yet lingered for years saddling prisoners with uneven treatment and taxpayers with legal costs, according to dozens of state inspections and reports.
Such failings continue, at McNeil Island Corrections Center and elsewhere.

System Problems

In Washington prisons, wardens not doctors ...

From the Editor

Welcome to the first issue of PLN for 2003. If you have not yet been donated to PLN's annual fund-raiser it is not too late to do so. All donations, large or small, help. Your donations go directly to supporting the work that PLN does. We have several exciting projects underway for 2003 which include getting all PLN back issues on line on our website. PLN's website already attracts about 30,000 visitors a month and everything can be done online that can be done by mail: subscriptions, books, indexes and back issues can be purchased; a subscriber's address can be changed and information about PLN can be requested to be sent to anyone in the United States. We plan to expand PLN's web presence in the coming year.


In addition to reporting news from other outlets, PLN also develops and reports stories of its own. This includes working in conjunction with other media outlets to develop and research stories that PLN lacks the resources to do on its own. This month's cover story on poor health care in Washington is a case in point. I originally started working on abysmal health care in Washington ...

Habeas Hints: Procedural Update

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


PROCEDURAL UPDATE


As we say goodbye to 2002 it's a good time to take a look at some of the year's most prisoner-friendly decisions regarding procedure under the AEDPA.


Tolling of the AEDPA for "Pending" State Habeas Petitions


The AEDPA statute of limitations is tolled (doesn't run out) while a "properly filed" state habeas corpus application is "pending". In Artuz v. Bennett, 531 U.S. 4 (2000), the Supreme Court (USSC) held a that state petition is "properly filed" so long as it meets all the state's formal requirements for filing, regardless of whether the claims themselves may be substantively or procedurally flawed. Hence, as long as a state petition is filed in the proper court and is file-stamped by the clerk, it will be deemed "properly filed", and a "properly filed" petition is entitled to tolling under the AEDPA as long as it is "pending".

The ...

The Long Silence: Federal Prisoners' Fight to Get the Word Out Reaches Unprintable Extremes

As an aspiring 26-year-old writer with a dark past, Mark Jordan figures he has plenty to tell the world. He has stories about bank robberies, for instance, and the many episodes of violence he's seen in eight years of prison life. And how federal authorities have been trying to coerce him into confessing to a murder that he swears he didn't commit.


But as U.S. Bureau of Prisons prisoner #48374-066, Jordan has no right to publish anything, anywhere, about any of these matters. According to his keepers, even the act of trying to get his views into print amounts to a violation of prison regulations, subject to disciplinary action. In the past year, Jordan has been punished twice for the crime of "acting as a reporter or publishing under a byline," offenses that have resulted in his losing some of the few privileges he has left as a 23-hour-a-day lockdown prisoner in the highest-security prison in the country.


Jordan's case highlights what has become an increasingly heated and litigious battle over the information flow in and out of the federal prison system. In recent months, federal authorities have drastically tightened the restrictions placed on incoming and ...

Book Review: From Prison to Home

by Jeremy Travis, Amy Solomon and Michelle Waul
Justice Policy Center, the Urban Institute, Washington DC, 2001, 56 pages, paper

Review by Roger Hummel

In a remarkable new book from the Urban Institute's Justice Policy Center, the dimensions of prisoner reentry are analyzed and reported in highly readable detail. Useful statistics, graphs, charts, maps and abundant sidebars accompany a fact packed text to offer the reader a 56 page book that delivers a comprehensive review of the nation's reentry process.

This year about 600,000 prisoners - roughly 1,600 per day - will be released from the nation's state and federal prisons. Most will reenter the communities where they were arrested and will try to avoid returning to prison. Sadly, for most of the returnees, that won't happen. Forty percent of released prisoners will be rearrested within one year while nearly two thirds are expected to be rearrested for a felony or serious misdemeanor within three years of release.

From Prison to Home examines the recidivism phenomenon along with the collateral consequences: rearrest and reincarceration, public health risks, homelessness, disenfranchisement, and weakened family and community ties. The Urban Institute deserves high marks for producing this objective view ...

North Carolina Jail Fire Kills Eight Prisoners

A fire in the Mitchell county jail at Bakersville, North Carolina killed eight prisoners on May 3rd. Joey Grindstaff, 23; Mark Thomas, 20; Edmond Banks, 46; Danny Johnson, 42; Jesse Davis, 27; Jeremiah Presnell, 20; Jason Boston, 27; and Tywain Neal, 28 died in the blaze. Two other prisoners were still in the hospital two days later.


The fire, which is believed to have started in a shed adjacent to the first-floor drunk tank, was first noticed by Diane Greene, the only jailer on duty, who was in the office with the only female prisonera trustyat 10:05 p.m. Apparently, no attempt was made to release the sixteen male prisoners incarcerated at the jail until deputies and firefighters arrived several minutes later. Two other deputies and a firefighter then attempted to rescue eight men from the first floor cell. One of the deputies had to flee the building for fresh air. The others helped four conscious and four unconscious prisoners out of the jail. By then, smoke and heat made it impossible to reach the second floor cell where seven prisoners died. The fire burned for ninety minutes.


Sheriff Kenneth Fox said that most of the dead prisoners were ...

Alabama DOC Quickly Settles Prison Working Conditions Suit

by John E. Dannenberg


On January 8, 2002, a scant two months after being sued, Alabama Department of Corrections (DOC) officials settled a class action complaint filed on behalf of 200 prison workers at the Elmore Correctional Facility who were subject to severely unsanitary and dangerous conditions while working at Elmore's garbage separation (recycling) facility. The Settlement Agreement details elaborate rules regarding safety, working conditions and protocols, sanitation, medical treatment (job injuries), retaliation, compliance/monitoring and attorney fees.


Kendrick Brinkley and fourteen other named prisoners at Elmore sued Warden Earnest Harrelson, senior staff and prison guards responsible for forcing Elmore prisoners to labor without pay in gross, inhumane and dangerous conditions in the prison recycling plant serving Montgomery, Alabama. The 42 U.S.C. § 1983 civil rights suit filed by attorneys for the Southern Center For Human Rights in federal court alleged that the prisoners were required to hand sort hazardous waste materials "including, but not limited to, human feces, bloody tampons, laboratory and medical wastes, dead animals, used hypodermic needles and intravenous needles, maggot-infested foods, razors, [and] industrial and household chemicals."


Only occasionally provided with thin latex gloves or paper mouth masks, but no protective clothing, the prisoners ...

Hustler Magazine Survives Arizona Prison Obscenity Test

On remand from the Ninth Circuit, the U.S. District Court for the District of Arizona found that prison officials were misapplying the constitutional obscenity standard and improperly seizing a prisoner's copies of Hustler magazine. Prison officials were ordered to pay $65 in compensatory damages and deliver four issues ...

Los Angeles County Settles Overdetention Suits for $27 Million

by John E. Dannenberg


In the largest legal settlement in its history, the Los Angeles County Board of Supervisors agreed in May, 2002 to pay $27 million to compensate 400,000 former jail prisoners who had been held on wrong warrants, held beyond their release dates or who had been ...

Sexual Assault Violates Eighth Amendment

A federal district court in Delaware has held, in denying a motion to dismiss, that a sexual assault during an obstetric medical exam violates the Eighth Amendment. Baylor Women's Correctional Facility prisoner Shalnessa Goode sued, under 42 U.S.C. § 1983, Correctional Medical Services (CMS) nurses Jacqueline A. Nixon and Barbara LeWallen, and several state department of corrections employees.


Goode, who was pregnant, began to have contractions and was called to the prison medical facility for an exam. She was told to undress by Nixon and LeWallen, and was examined without gloves. Goode was asked if she was HIV positive, was then given hugs and kissed on her face and lips. One of the nurses gave Goode her home phone number. Nixon then proceeded to get the speculum so LeWallen could do an internal exam, which caused light bleeding afterwards. Apparently, LeWallen had no license to do an internal exam. Goode stated the incident caused her high blood pressure to rise and that, in turn, caused her to go into labor four weeks early.


The Court held Goode failed to show any personal involvement by CMS and the state defendants, and granted their dismissal motion. However, the Court held ...

Wackenhut Warden and Six Guards Convicted In New Mexico Prisoner Beatings

by Matthew T. Clarke


Six guards and a warden have been convicted in federal court of charges stemming from brutal beatings and subsequent cover up attempts at the 1,200 man Lea County Correctional Facility in Hoots, New Mexico, which holds state prisoners and is privately-run by Wackenhut Corrections Corporation.


The December 1998 incident started when prisoner Eric Duran refused to take his assigned seat in the dining hall and had an argument with guards Kendall Lipscomb and Lt. William Fuller. Duran was taken to "P-15 hallway" where Lipscomb and Fuller repeatedly kicked him in the head while he lay handcuffed and compliant on the floor with guards Lt. Matias Serrata, Jr. and Gary Butler close at hand. During the assault, Fuller looked up and saw other guards witnessing the beating through nearby windows. His reaction was to angrily motion the guards away from the windows. Duran lost consciousness and had to be rushed to a hospital. He still suffers from post-traumatic stress disorder four years later.


In an attempt to cover up the beating, Butler created injuries by punching himself in the face and filed false assault charges against Duran at a police station. The guards then concocted the ...

California's Parole Revocation System Violates Due Process

by John E. Dannenberg


In a class action civil rights case, the United States District Court (E.D. Calif.) held that California's parole revocation system violates procedural due process of law because it does not provide for a preliminary hearing to determine if probable cause for a parole hold exists.


Parolees Jerry Valdivia, Alfred Yancey and Hossie Welch sued state officials beginning in 1994 alleging that California's unitary parole revocation system is unconstitutional. In a unitary system, the parolee's final determination of his alleged violation is made in a single dispositional hearing in lieu of first holding a preliminary hearing to determine probable cause for the parole hold.


Reviewing the undisputed facts, the court noted the wholesale omission of the prisoner from all aspects of such a constitutionally required preliminary determination. Instead, the court found that due process had been replaced by an administrative process involving only the parole agent, his supervisor and the Board of Prison Terms (BPT). Following the parolee's arrest and (often) return to state prison, he would receive a "screening offer" from the BPT [only 90% of which hearings were found to be held within 45 days of arrest] wherein the detained ...

Virginia Guards Acquitted of Assaulting Prisoner

Three former prison guards were acquitted March 27, 2002 on charges of beating a shackled prisoner at the Wallens Ridge State Prison, a Virginia supermax. Lt. Jeffrey Compton, Sgt. Mathew Hamilton and Michael Bliley were charged with felonious assault and fired after allegations they kicked and beat Thomas Plummer in his cell November 17, 2001. They were also charged with falsifying a report documenting the incident. Captain Isaac T. Hockett, a 21 year department veteran, was also fired but charges against him were later dropped.


The court originally had problems selecting a jury. Many potential jurors knew, some were even related to, the accused guards. Wallens Ridge and its sister supermax, Red Onion, employ around 800 people, nearly 10 percent of the Wise County workforce, with an annual payroll of $30 million.


The jury listened to 22 days of testimony in which three Wallens Ridge guards testified that they saw the accused guards beat and kick Plummer. However, it took less than an hour after the conclusion of closing arguments to return the not guilty verdict.


Perhaps the prevailing attitude in Wise County is best summed up in the words of Judy Hartstock, resident and sister of a Wallens Ridge ...

Sentence Commuted for Sexually Assaulted New Mexico Prisoner

Sentence Commuted For Sexually Assaulted New Mexico Prisoner


On May 30, 2002, New Mexico governor Gary Johnson (R) commuted the sentence of Belinda Dillon, a prisoner at the New Mexico State Women's Correctional Facility. The commutation came after several guards at the Dona County Detention Center, where Dillon was imprisoned in 1998, were convicted of sexually assaulting her or attempting to sexually assault her over a two month period.


Of the six guards implicated, three were convicted. Two received prison sentences of 18 months, the other one year. Ms. Dillon, by contrast, had been sentenced to six years in prison for stealing a small sum of money to support her drug habit. Gov. Johnson labeled her a victim of the drug war. "She received a harsh sentence for her nonviolent crimes while yet those who abused and mistreated her received collectively less time for their sexual offenses," he said. "It is morally and ethically appropriate to ... [commute] her remaining sentence."



Source: The Santa Fe New Mexican

Ninth Circuit Upholds BOP's Prorated Good Time Formula

Ninth Circuit Upholds BOP'S Prorated Good Time Formula


The Ninth Circuit Court of Appeals held that the Bureau of Prisons' (BOPS') application of good time credits on a prorated basis during the final year of confinement is a reasonable interpretation of the federal good time statute.


Federal Prisoner "Francisco Pacheco-Camacho was an exemplary prisoner. Serving his sentence of a year and a day, he earned the maximum number of good time credits permissible under federal law. Pacheco says that number is fifty-four days, but . . . (BOP) regulations allow him only forty-seven."


Under 18 U.S.C. Section 3624(b)(1) a federal prisoner may receive up to 54 days off his sentence at the end of each year of imprisonment if the BOP finds that the prisoner displayed exemplary compliance with prison disciplinary rules. "Under this scheme, at the end of each year, the BOP determines whether the prisoner has been naughty or nice. If the latter, it may award him credit for an extra fifty-four days towards the remainder of his sentence."


Section 3624(b)(1) provides that during the last year of a prisoner's sentence good time credits shall be prorated and credited within the last six ...

Inartful Pro Se Exhaustion of Administrative Remedies Survives Motion to Dismiss

Inartful Pro Se Exhaustion of Administrative Remedies Survives Motion To Dismiss


The US District Court (S.D. Cal.) held that the inartful pro se pleadings of a California state prisoner were sufficient to exhaust his administrative remedies for purposes of the Prison Litigation Reform Act, 42 USC § 1997e(a), and thus denied the defendants' motion to dismiss on those grounds.


Steven Irvin filed a 42 USC § 1983 civil rights damages complaint against Calipatria State Prison authorities for alleged cruel and unusual punishment for their failure to give adequate medical care when he suffered toxic effects from the spraying of pesticide that got into his cell via the housing ventilation system.


Prior to his court filing, he filed two state prison administrative appeals. The defendants claimed these appeals were so defective as to justify dismissal of his suit for failure to exhaust available remedies.


As a threshold question, the court first ruled that defendant's Motion for Summary Judgment under Fed.Rules Civ.Proc. 56 was misplaced because Rule 56 is reserved for failure to exhaust judicial, not administrative, remedies. Nonetheless, the court rehabilitated defendants' defective pleading by construing the motion instead as a "nonenumerated" Motion to Dismiss under FRCP 12 ...

Deaf Michigan Prisoner's ADA/RA Suit Survives Dismissal Challenge

A Michigan District Court has granted in part and denied in part Michigan Department of Corrections (MDOC) officials' motion to dismiss a state prisoner's suit against MDOC under the Americans with Disabilities Act (ADA), 42 U.S.C. §12101, et. seq., and the Rehabilitation Act, 29 U.S.C. §794. Prior rulings in this case were reported in previous issues of PLN.


David Key is a hearing-impaired state prisoner in Michigan serving time for criminal sexual conduct. Though he has sought sex offender treatment, he either has been denied it by MDOC due to a lack of sign language interpreters or has been placed in sex offender therapy where no interpreter was available. Key sued various MDOC officials in their official and individual capacities alleging that he has been repeatedly denied parole due to a lack of appropriate treatment and has suffered emotional and psychological damage by MDOC's failure to accommodate his disability. Key brought suit under both the ADA and the RA. He also asked the federal court to assume jurisdiction over his claims brought under the Michigan Persons with Disabilities Civil Rights Acts (MPDCRA). Defendants moved to dismiss on all counts, and the case went before ...

USPC Parole Revocation Policies Violate Due Process

by David M. Reutter


A federal district court for the Dis-trict of Columbia has granted injunctive relief to prisoners challenging the United State Parole Commissions (USPC) unconstitutional policies, which unduly delay revocation of parole proceedings.


The USPC assumed the powers, duties, and jurisdiction of the District of Columbia Board of Parole (DCBP) on August 5, 2000, pursuant to the National Capital Revitalization and Self-Government Act of 1997. USPC replaced the parole revocation procedures of DCBP with new parole regulations.


Upon assuming DCBP parole matters, USPC was hit with a backlog of 230 cases waiting in custody for hearings. Immediately, USPC found its resources were "overwhelmed," and operations "reached a state of near collapse." USPC's backlog had increased in October 2000, to 400 arrested parolees who were beyond the constitutional deadline established in Morrissey v. Brewer, 92 S.Ct. 2593. In November 2000, USPC released 116 arrested parolees without hearing in an effort to reduce the backlog, but "delays of four months from arrest to final revocation decision continued to be common&with some hearings delayed six months or more."


USPC found itself unable to provide preliminary interviews in a timely manner, unable to determine when warrants were executed, or which parolees were awaiting bearings. Additionally, USPC admitted that documentary evidence needed to make findings as to probable cause, and for revocation of parole was often missing.


In Morrissey, the Supreme Court established that despite their limited rights, parolees retain a liberty interest in their freedom. Thus, probable cause decisions must be made "as promptly as convenient after arrest." The Court did not define what "prompt" entails, but USPC interprets it as being three to five days after arrest.


The prisoners challenged USPC's policy of delaying final probable cause determination for more than 21 days after arrest. The District Court cited numerous cases, which are not isolated incidents, of probable cause determinations not occurring until 50 to 176 days after arrest.


USPC's policies also require a final revocation hearing "shall be scheduled to be held no later than sixty days after a final determination of probable cause." This policy comports with Morrissey's holding. The prisoners evidenced cases where final determination was not made until from 152 to 326 days after arrest. The U.S. Marshall Service's report to the Court stated that the average time from arrest to revocation hearing is 99 days, and from arrest to final decision averages 156 days.


The District Court held that to comport with the outer limits of due process under Morrissey, USPC must provide a final determination of probable cause within 5 days of arrest, a final revocation hearing 60 days thereafter, and a final revocation decision 21 days thereafter. In other words, USPC must complete the process within 86 days of arrest.


The parolees also challenged as violating due process, USPC's regulations denying them the opportunity to review all the evidence against them before having to present their case. USPC's procedures provide for discovery only at the final revocation hearing. Morrissey held the "minimum requirements of due process&include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence." The District Court held this ...

Trial in Prison Violates Oregon's "Public Trial" Guarantee

The Oregon Court of Appeals held that a trial conducted within the confines of a prison that was not open to the public violated Oregon's constitutional guarantee of a public trial.


James Jackson, a prisoner at the Snake River Correctional Institution, (SRCI), was charged with Sodomy in the First Degree for allegedly forcing his cellmate to submit to anal intercourse on two occasions.


The jury was selected and sworn in at the county courthouse then transported to SRCI for the trial, which was conducted in a room inside SRCI that was not open to the public. A live television transmission of the trial was broadcast to a room at the court courthouse where seating was available for approximately ten spectators. The transmission showed the judge, the witness stand and part of the jury box. The attorneys could be heard but not seen and Jackson could not be seen.


Jackson objected to the trial being held inside SRCI, as violating Article I, sections 10, and 11, of the Oregon Constitution. "Section 10 provides, in part, that `[n]o court shall be secret, but justice shall be administered openly and without purchase, completely and without delay.'" Section 11 guarantees criminal defendants ...

Amendment of Complaint to Identify Unknown Defendant Denied

The Third Circuit Court of Appeals has affirmed a Pennsylvania District Court's grant of summary judgment to Pennsylvania Department of Corrections (PADOC) officials and denial of Plaintiff's motion to amend the suit to substitute a new, named defendant for a previously-unnamed defendant. In so so ruling, the Court of Appeals noted a problem with, and asked the Judicial Conference Advisory Committee on Civil Rules to modify, Federal Rule of Civil Procedure (FRCP) 15(c)(3).


Dorothy Singletary, mother of PA DOC prisoner Edward Singletary, filed a 42 U.S.C. §1983 suit against SCI-Rockville and various named PA DOC officials and "Unknown Corrections Officers," alleging cruel and unusual punishment against her son. Edward committed suicide while at SCI-Rockville. Mrs. Singletary claimed PA DOC officials were deliberately indifferent to Edward's known mental health problems.


Nearly two years after filing suit, and one week after responding to PADOC's summary judgment motion, Mrs. Singletary, using FRCP 15(c)(3), sought to amend her complaint to change "Unknown Corrections Officers" to "Robert Regan," the psychological services person who diagnosed Edward as not suicidal. The district court denied the motion and granted summary judgment in PADOC's favor. Mrs. Singletary appealed ...

Denial of Wheelchair Claims Survive Summary Judgment

A federal court in Massachusetts held that issues of material fact concerning the extent of a prisoner's injuries precluded summary judgment. The court also held that the corrections commissioner was not entitled to qualified immunity related to the denial of a wheelchair and disabled accessible facilities to a handicapped prisoner.


In 1998 Ezequiel Navedo, a prisoner who used a wheelchair entered the Massachusetts Department of Corrections (MDOC). He retained the use of his wheelchair throughout his confinement until his transfer in July 1999, to MCI Norfolk where his wheelchair was confiscated from him at the front gate because, he was told, the facility was not wheelchair accessible.


From July 1999 through April 2000, Navedo was deprived of the use of his wheelchair and his "condition . . . became progressively worse, resulting in diminished motor functioning of his lower extremities; his bladder function also appeared to be deteriorating." His repeated requests for a wheelchair were turned down, and he did not receive physical therapy at any time during his confinement at Norfolk.


On January 27, 2000, the Norfolk Classification Board voted to recommend Navedo's transfer to MCI Shirley because his medical issues could be better dealt with there. A deputy superintendent ...

PLRA Does Not Apply to Juvenile Facilities; $379,000 Attorney Fees and Costs Awarded

by David M. Reutter


A federal district court in South Dakota has held the PLRA attorney fees provision does not apply to juvenile facilities, and awarded $379,000 in attorney fees and costs. The court had before it the plaintiff's motion for attorney fees and costs after a Settlement ...

Excessive Force and Delaying Medical Treatment Defeats Dismissal

A federal district court in Rhode Island has denied a prison guard's Motion to Dismiss a prisoner's claim that the guard intentionally slammed a cell door on the prisoner's fingers, and waited over an hour to get the prisoner medical treatment. Rhode Island prisoner Anthony S. Ducally sued under 42 U.S.C. § 1983 alleging Eighth Amendment claims of excessive force, and failure to provide medical attention against guard Godwin Ebong.


Upon returning from recreation Ducally asked Ebong to open his cell door. After opening the door, Ebong approached Ducally from behind and intentionally slammed the cell door on his fingers. Ebong then waited over an hour before allowing Ducally to get medical attention. Ducally's swollen left hand suffered open wounds to his middle and ring fingers. He also asserted he is losing feeling and power in his entire hand, and he suffers nightmares of the incident.


The Court held that the use of excessive force can be an Eighth Amendment violation when there is an unnecessary and wanton infliction of pain and the force was "maliciously and sadistically used to cause harm." If done intentionally, and proven so at trial, Ebong's actions, as alleged ...

Diabetic's Amputation Suit Set for Trial

A federal district court in Illinois has held a diabetic detainee's claim of deprivation of medical treatment is sufficient to deny the doctor's motion for summary judgment. Cook County Jail pre-trial detainee Andrew Spencer filed a 42 U.S. C. §1983 action alleging on Eighth Amendment violation of deliberate indifference to his serious medical need. Spencer, a diabetic, hit his right foot on a steel bed while attempting to exit his living quarters, which resulted in a cut between the fourth and fifth toes. The suit proceeds against one defendant, Dr. Ghassan Zalzaleh. On two occasions Zalzaleh saw Spencer. The first was upon Spencer's complaint of swelling and redness, Zalzaleh found no wound or other abnormalities, but conceded he did not recall looking between Spencer's toes. He then refused Spencer painkillers, believing him to be a drug seeker who would complain of anything.


Twenty days later, Zalzaleh learned from a nurse's notes the sole of Spencer's foot was discolored. Zalzaleh then waited two days before he decided to "eye ball" Spencer's condition for the second time. At that examination, Spencer had "positive skin changes," which is "not a good thing." That same day ...

No Immunity for Failing to Protect Murdered Informant; Correctional Industries Employees Are State Actors

No Immunity for Failing to Protect Murdered Informant; Correctional Industries Employees Are State Actors


The Sixth Circuit Court of Appeals held that prison officials were not entitled to qualified immunity for failing to protect a prisoner who was ultimately murdered by another prisoner. The court also held that Correctional Industries employees are state actors for purposes of Section 1983 liability.


Robert Flint, a prisoner at Luther Luckett Correctional Complex (LLCC) worked in the prison's print shop that was managed by former prisoner James Montgomery, who had a "close relationship" with several prisoners including Raymond Rust, James Underwood and William Borsch. Montgomery had actually served time with both Rust and Underwood.


Montgomery allowed Rust, Underwood and Borsch to make telephone calls from his office in violation of prison rules. While he was on vacation, Rust called him at home from the print shop, which Flint reported to prison officials in July 1995. "Surmising that Flint reported Rust's phone calls, Montgomery terminated Flint's employment at the print shop on August 31, 1995, and in September of 1995, fabricated an incident report against Flint." Montgomery accused Flint of "ratting" on him and Rust told him "that he would `fix it ...

Colorado Ad-Seg Decisions Subject to Judicial Review

The Colorado Court of Appeals held that administrative segregation (ad-seg) placement decisions are subject to judicial review.


Leonard Baldauf, a prisoner of the Colorado Department of Corrections, (CDOC), was placed in adseg and filed a C.R.C.P. 106(a)(4) complaint seeking judicial review of the placement decision. The district court granted prison officials' motion to dismiss the complaint and Baldauf appealed.


On appeal, the court observed that C.R.C.P. 106(a)(4) authorizes judicial review of any administrative agency action that is judicial or quasi-judicial in function, when no alternative remedy is otherwise available.


The court found that CDOC's ad-seg action constitutes quasi-judicial action. In doing so it found that there is no meaningful distinction between the CDOC's quasi-judicial disciplinary procedures and its ad-seg procedures. Accordingly, the court concluded that CDOC ad-seg decisions are subject to judicial review under C.R.C.P. 106(a)(4).


The court did not decide whether or not prisoners have a constitutionally protected liberty interest in classification decisions because there "is no requirement that a C.R.C.P. 106(a)(4) action must be based on alleged constitutional violations." See: Baldauf v. Roberts, 37 P.3d ...

7th Circuit: PLRA Exhaustion Requirements Retroactive; BOP Has Late Grievance Hardship Exception

The Seventh Circuit Court of Ap-peals held that the administrative exhaustion provisions of the Prison Litigation Reform Act (PLRA) apply retroactively.


In October 1995, federal prisoner Anthony McCoy was housed at the Federal Correctional Institution in Greenville, Illinois, (Greenville): an overcrowded medium security facility.


By October 1995, tensions had been mounting at Greenville for several weeks. The Bureau of Prisons (BOP) later attributed the tension to the prison's work assignments and Congress' refusal to reform the sentencing guidelines for persons convicted of selling crack and powdered cocaine.


On October 20, 1995, the BOP ordered a lockdown at all federal institutions. A riot ensued, lasting 24 hours and being of such a magnitude that it made national news. Numerous employees sustained severe injuries and the prison itself suffered more than $400,000 in property damage."


A group of vigilante guards amassed a list of prisoners they believed to have been involved in the disturbance. On the night of October 26, 1995, the guards, in full riot gear, burst into McCoy's cell. McCoy told them he did not join or participate in the rioting but the guards "handcuffed him, slammed his head against the cell door, and dragged him into ...

$27,848.30 Award in Texas Jail Slip and Fall Upheld

An award of $27,848.30 to a pris-oner who slipped and fell on a food spill in a Texas jail has been upheld by a Texas state court of appeals in an unpublished opinion.


Mickey Caves, a Dallas County (Texas) Jail prisoner, filed suit against Dallas County under the ...

A Jailhouse Lawyer's Manual, Fifth Ed. and 2002 Supplement

by Columbia Human Rights Law Review, 2002, 1,593 pages


Reviewed by Paul Wright


The law review staff at Columbia University in New York has published A Jailhouse Lawyer's Manual (JLM) since 1978. Now in its fifth edition, the JLM is an excellent resource, reference guide and how to manual for all prisoners interested in asserting their rights. It is also a useful quick reference guide for lawyers and other professionals looking for a good starting point in areas they don't normally practice in. While aimed at prisoners in New York State, the book is useful to prisoners in all jurisdictions and contains sections specific to federal prisoners and state prisoners in Florida and Texas. It is also very useful for pretrial detainees who have not yet been convicted of a crime or who are housed in jails.


Broken into 35 concise, well written chapters, the JLM covers all legal aspects of incarceration from challenging conditions of confinement to challenging the fact of imprisonment itself. It starts off with legal research, learning the law and finding a lawyer but more significantly it contains important chapters on how to interpret legal documents and obtaining information to prepare one's ...

Less Restrictive Alternatives Must Be Considered in Washington Sex Predator Commitments

The Washington state Supreme Court, sitting en banc, held that the "equal protection clauses of the state and federal constitutions require that less restrictive alternatives (LRAs) to confinement be considered at . . . commitment trials" under RCW 71.09, Washington's Sexually Violent Predator (SVP) statute.


Scott Brooks was convicted on four separate occasions of committing sexually violent crimes. Just before the end of his last sentence, the State moved to have Brooks involuntarily committed under RCW 71.09. At his commitment trial "Brooks asked the court to instruct the jury that the State must establish that he could not be safely treated in an LRA to total confinement, but the court refused." The jury found Brooks to be an SVP and imposed a commitment order. The Court of Appeals affirmed the commitment order, In Re Detention of Brooks, 94 Wash .App. 716, 973 P.2d 486 (1999) and the Supreme Court granted review.


The Court upheld its position set forth in In Re Restraint of Young, 122 Wash.2d 1, 857 P.2d 969 (1993), that persons committed under the SVP, and those committed under RCW 71.05, the state's mental illness commitment statute, "are similarly situated with respect to ...

Brutal Jail Conditions Warrant Reduced Federal Prison Sentence

A federal court judge granted a defendant's request for a reduced prison sentence based upon the abject conditions of pre-sentence confinement in a New York Jail. Elvin Francis came before a U. S. District Court where he pled guilty to illegal re-entry and faced a sentencing range of 46 to 57 months. He asked the court for a reduced sentence because of the barbaric circumstances under which he was confined at New York's Hudson County Correctional Center (HCCC).


Francis presented evidence of the substandard conditions at HCCC including safety, overcrowding (HCCC was operating at 150 percent capacity), unsanitary conditions, inadequate bathroom facilities, inadequate medical attention, limited recreation, restricted family and counsel visits, no access to Spanish-language reading materials (Francis does not write or speak English, only Spanish), lack of work opportunities, spoiled and unsanitary food, theft of personal property, rampant gang activity, obstruction of access to telephones, co-mingling of state and federal prisoners, extortion of food and money, robbery, and violence.


Reynaldo Caban, a former HCCC prisoner, testified that guards allowed prisoners to fight without staff interference or discipline. When asked if he reported the fighting, Caban responded: "The police watched us fight, so what kind of report ...

News in Brief

Alabama: On May 8, 2002, Mobile county sheriff Jack Tillman fired jail warden Kenneth Cooper for making false statements on his job application. Cooper claimed he had graduated from Valdosta State with a bachelor's degree in physical education. School records indicate he never graduated.


Alaska: On November 19, 2002, prison guard James Hesterberg, 48, and four unidentified state prisoners were killed on a highway near Seward when a tractor trailer truck crossed the center line and crashed into the prison van transporting the prisoners which was driven by Hesterberg.


Brazil: On November 11, 2002, prisoners at the Franco de Rocha prison in Sao Paulo rioted for 14 hours. Three guards who were taken hostage were freed unharmed. Ten prisoners were stabbed to death by other prisoners.


California: A record 38 prisoners killed themselves in California jails in 2001; up from 23 in 2000 and surpassing the previous record of 37 suicides in 1983. The most common means of suicide was strangulation. William Crout, deputy director of the state Board of Correction, attributed the increase in suicides to the fact that more mentally ill people are imprisoned rather than hospitalized.


California: On April 22, 2002, black and white prisoners at ...

FLSA Inapplicable to Oklahoma Prisoners in Private Prisons

An Oklahoma appellate court held that the Fair Labor Standards Act, (FLSA) does not apply to prisoners in private prisons.


Michael Washington, a prisoner of the Oklahoma Department of Corrections, (ODOC), was transferred to the Great Plains Correctional Facility, (GPCF), a private prison operated by Cornell Corrections, Inc., (CCI). While there, Washington worked in a warehouse and the law library, earning approximately $32.


Washington brought an action against CCI in state court, to recover $3,468 in wages allegedly due and unpaid. He claimed he was entitled to an hourly rate of $5.15 under the FLSA, for work he performed as an "employee" at GPCF.


The trial court granted defendants' motion for summary judgment and Washington appealed. Citing the reasoning of the Tenth Circuit in Franks v. Oklahoma State Industries, 7 F.3d 971 (10th Cir. 1993), the court of appeals found that Washington's relationship with Great Plains CF did not arise out of an employer-employee relationship but by virtue of his status as a prisoner.


The appeals court affirmed, concluding that Washington's confinement in a private prison did not alter his status as a prisoner, he was not an employee and he was not entitled to ...

7th Circuit Denies Qualified Immunity on ETS Claim

The Seventh Circuit Court of Ap-peals held that prison officials were not entitled to qualified immunity on a claim of exposure to environmental tobacco smoke (ETS). Wisconsin DOC prisoner Chad J. Alvarado brought suit against prison officials alleging an Eighth Amendment violation due to his exposure to ETS while incarcerated.


Alvarado suffers from severe asthma that is made worse by exposure to STS. His medical records, dating back to 1982 indicate that he is allergic to smoke and that he has a long history of perennial asthma. The term "severe asthma" is also used and his records indicate multiple hospitalizations and trips to the emergency room for asthma-related problems.


Alvarado alleged that while incarcerated he was exposed to ETS which caused his health to deteriorate and he was forced to increase his daily asthma medication dosages. He filed multiple grievances within the prison system regarding his ETS exposure that were rejected or dismissed. Alvarado claimed that defendants acted with deliberate indifference to his complaints about ETS exposure.


Defendants filed a Rule 12(b)(6) motion to dismiss for failure to state a claim for relief, and asserted a qualified immunity defense. The district court denied the motion and prison officials ...

All Aspects of Inadequate Medical Need Not Be Exhausted

A federal court in California held that it is not necessary for a prisoner to allege every aspect of inadequate medical care claims in a grievance for purposes of exhausting administrative remedies under the Prison Litigation Reform Act (PLRA).


On October 14, 1995, Sylvester Gomez, a prisoner of the California Department of Corrections, (CDOC), was seen by a doctor who ordered a blood test. Gomez tested positive for both hepatitis A and C, but was not told that he had hepatitis C (HCV) until October 1997, despite recurrent complaints of lower abdominal pain.


On October 28, 1997, a doctor suggested that Gomez might need a liver biopsy to obtain further information about his condition. The biopsy was performed March 3, 1998 but Gomez was not told he was eligible for interferon treatment for HCV until May 21, 1998. He did not begin treatment until December 9, 1998. On July 2, 1998, Gomez filed an initial grievance based on his concern about the medical services being provided to him. He eventually exhausted each step of the CDOC grievance process. Gomez filed a compliant alleging deliberate indifference to his serious medical needs including the delay in informing him of his diagnosis, the ...

 

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