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Prisoner Education Guide

Prison Legal News: October, 2003

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Volume 14, Number 10

In this issue:

  1. The Deadly Health Services of Naphcare in Alabama (p 1)
  2. Temporary Injunction Issued in Alabama Suit (p 5)
  3. Crime Control as Industry: Towards Gulags, Western Style (p 7)
  4. Wackenhut's Legacy of Shame in Austin (p 8)
  5. New Study Rejects Link Between Prisons and Economic Growth (p 10)
  6. Hawaii: High Recidivism for Mainland Prisoners (p 10)
  7. From the Editor (p 11)
  8. Scandal-Ridden, Bankrupt MCI WorldCom Wins No-Bid California Prisoner Phone Contract (p 12)
  9. $500,000 Settlement in Connecticut Suicide (p 13)
  10. Dead Man Waking (p 14)
  11. Family Awarded $229,000 Against CMS in Illinois Hepatitis C Jail Death (p 15)
  12. Honduras Prison Massacre: What Really Happened (p 16)
  13. Cheap Mexican Prison Labor Exploited by U.S. Firms (p 17)
  14. Michigan Visiting Rules Upheld by U.S. Supreme Court (p 18)
  15. Thomas and Scalia Flunk History (p 19)
  16. Federal Appeals Courts Address Finality of Dismissals, Grievance Contents (p 19)
  17. Washington SCC Injunction and Contempt Order Upheld (p 20)
  18. Director of Florida's Private Prison Commisssion Resigns, Fined $10,000 for Ethics Violations (p 21)
  19. Eight Washington Prison Premises Liabilities Claims Settled for $35,058 (p 22)
  20. Nebraska Prisons Get Progressive Phone Contract (p 23)
  21. Washington DOC Settles Failure to Protect Case for $13,000 (p 24)
  22. Nebraska Prisons Get Progressive Phone Contract (p 24)
  23. Kansas Sheriff, Lawyer, Jailed for Sweetheart Jail Contract (p 25)
  24. Washington Retaliation Suit Settled for $2,500 (p 25)
  25. California Taxpayer Action Forces Private Employer to Pay Prisoners Prevailing Wages (p 26)
  26. Washington Posts Health Care Provider Information Online (p 26)
  27. U.S. Supreme Court: Reviving Expired Statute of Limitations Violates Ex Post Facto (p 27)
  28. California Prisoner Who Received First Heart Transplant Dies (p 28)
  29. PLRA Physical Injury Rule Not Applicable in Non-Prison State Cases (p 29)
  30. First Amendment Protects Witnessing of California Executions (p 30)
  31. Survivors of North Carolina Jail Fire Settle for $1.94 Million (p 30)
  32. Receipt of Federal Funds Waives Eleventh Amendment Immunity for Rehabilitation Act (p 31)
  33. Diagnosis, Not Exposure, Triggers Limitation Period in HCV Action (p 31)
  34. Stun Belt Prejudice Reverses California Conviction (p 32)
  35. PLRA Does Not Apply to Challenges to Civil Commitment (p 32)
  36. News in Brief (p 33)
  37. Pendency of Federal Lawsuit Doesn't Toll 31-Day Texas Limitations (p 35)
  38. Seventh Circuit Reverses BOP's Denial of Death Row Prisoner's Interviews (p 36)

The Deadly Health Services of Naphcare in Alabama

It is often said that you can tell a lot about a society by checking the condition of its prisons. Based on the way prisoners in Alabama are treated (or, more accurately stated, not treated), citizens of that state have a lot to be worried about. With only a few months left to go on his sentence for marijuana possession, 43-year-old prisoner Timothy Oliff caught a cold that he just couldn't shake. Oliff's complaints went ignored by prison health care workers at the Elmore Correctional Facility until several days later when he became so ill that fellow prisoners had to carry him to the gate for emergency help.


Three days later Oliff died at the Montgomery Baptist South Hospital. Although neither prison officials nor hospital brass would comment on his death, Oliff's sister, Diane Aman, said doctors at the hospital told her he had died of pneumonia and had the worst stomach infection they'd ever seen. Aman also said they told her that prison health care workers had been too late in getting Oliff to the hospital for the emergency care he needed.


Also refusing to comment on his death are officials of NaphCare, Inc., the ...

Temporary Injunction Issued in Alabama Suit

On June 26, 2003, the parties in Baker v. Campbell agreed to the entry of a temporary preliminary injunction which, among other things, provides for "immediate" and "adequate" medical care for Alabama prisoners with serious illnesses.


The "Preliminary Injunction Settlement Agreement" stems from a class action suit filed by prisoners at the St. Clair Correctional Facility against the Alabama Department of Corrections (DOC) and Naphcare, a for-profit company that contracts with Alabama to provide medical services to its prisoners. (See: Baker et al., v. Campbell, et al., No. CV-03-C-1114-Mt U.S, District-Court for the Northern District of Alabama.) The suit was brought because of "the grossly inadequate medical care provided to them" by ADOC and Naphcare. Among the illnesses-the 11 named plaintiffs claim the defendants allowed to go untreated are cancer, lung disease, hemophilia, Hepatitis C, deafness, and other serious medical conditions. The suit alleged that defendants' negligence is causing plaintiff's to suffer "serious harm and are at great risk of further harm, including death."


In fact, after the original complaint was filed, lead plaintiff Jerry Baker, suffering from lung disease, died on May 15, 2003 from "the failure to fill his prescribed medications," according to the amended complaint ...

Crime Control as Industry: Towards Gulags, Western Style

by Nils Christie, Routledge Press (2000 Rev. Ed.) 244 pages, Paperback

Review by Peter Wagner


The heavily revised third edition (2000) of Crime Control As Industry: Towards Gulags, Western Style is an essential guide to understanding the incarceration boom and considering how we can turn it around. The first book of Norwegian criminologist Nils Christie, Limits to Pain, argued that the criminal justice system is in fact a pain delivery system, with the size of the system controlled not by the number of committed acts labeled as crimes but by the amount of pain that a society is willing to impose on its citizens. Crime Control as Industry expands upon that theme, and tracks how an industry has arisen to manage crime. And like any industry, the crime control industry is not about to say on its own: "Stop, we have enough of the market. We don't need to grow."


Christie does an important job providing an international perspective to incarceration, comparing disparate incarceration rates between otherwise similar European countries. Hope can be found in his story of Finland becoming accustomed to a high level of pain delivery and then deciding in the 1970s that its incarceration rate associated ...

Wackenhut's Legacy of Shame in Austin

by Matthew T. Clarke


The price of attending the March 1997 South by Southwest Music Festival in Austin, Texas, came very high for Dallas record producer David Prater. Busted for a minor drug possession, in 1998 Prater was sentenced to 250 days in the Wackenhut-run Travis County Community Justice Center (TCCJC).


TCCJC is a state jail, intended to house prisoners convicted of minor felonies. State jail felonies came into existence in 1994, following the successful lobbying by a group of Texas district attorneys for the legislature to create a new class of felonies and new prisons (state jails) to keep nonviolent prisoners with convictions for minor felonies out of hard core prisons. In theory, the state jails were to intensively focus on rehabilitation and education. There are 17 state jails and 8 substance abuse prisons under the auspices of the Texas Department of Criminal Justice-State Jail Division (TDCJ-SJD). Some of them are operated by private companies, such as Wackenhut and Corrections Corporation of America. From its opening in March 1997 until November 1999, TCCJC was run by Travis County which subcontracted with Wackenhut to operate it as a private prison.


Just ten days into his incarceration at TCCJC, Prater made ...

New Study Rejects Link Between Prisons and Economic Growth

A new study examining 25 years of economic data finds that despite the many claims and promises, building prisons in rural communities has had no positive effect on either employment or per capita income. The study by The Sentencing Project examined prison development trends in upstate New York State over the past two decades of record prison expansion, when 38 prisons were built in mostly rural areas.


The report compared rural counties in New York that built prisons since 1982 with those rural counties that did not construct prisons, finding that prisons have produced no advantages to rural areas in either income or unemployment rates. Overall, between 1982 and 2000, per capita income rose slightly higher in non-prison counties (141%) than in those with prisons (132%).


The study also reveals that unemployment levels throughout the economic swings in New York State since 1982 have consistently moved in the same basic directions for both prison and non-prison counties, following overall state trends. In fact, during two of the three distinct economic periods between 1982 and 2001, the non-prison counties performed marginally better than the prison counties.


Prisons have become a growth industry in rural America, with approximately 350 rural counties building ...

Hawaii: High Recidivism for Mainland Prisoners

Hawaii prisoners housed out of state are virtually guaranteed to return to prison after release, according to a Jan. 21, 2003, story by the Honolulu Star-Bulletin. Currently, 90 percent of prisoners housed on the mainland return to prison, while those housed in state have a recidivism rate of between 47 percent and 57 percent.


State Rep. Glenn Wakai (D-Moanalua Valley) found the disparity in recidivism rates startling. "What's the public good of us sending them to the mainland to just house them there so they can come back X number of years later and go and prey on us again?" he said.


State Rep. Colleen Meyer (R-Laie) believes the numbers imply that prisoners housed on the mainland are not being rehabilitated. Public safety officials testified in Jan. 20, 2003 that an overwhelming 85 percent of Hawaii state prisoners need substance abuse treatment. Apparently, this treatment is either non-existent or ineffective for those housed out of state.


Severe prison overcrowding has forced Hawaii to contract with out of state private prisons. Currently, more than one-fourth of Hawaii's 5,093 prisoners are housed on the mainland, at a cost of $25 million to state taxpayers.


Not noted in the article ...

From the Editor

Subscribers should soon receive PLN's fall fundraiser letter along with our reader survey. Periodically we send readers a survey asking readers what they think of PLN's coverage and content and what they would like to see in future issues. We welcome suggestions and comments so that we can better serve our readers' needs. By the same token, just because we do reader surveys doesn't mean that you should wait until we do one to submit any suggestions or ideas.


Starting October 1, 2003, we are also starting our Subscription Madness campaign, which was very successful last year. One of the best ways to get new readers and let people know about PLN is to mail out sample copies to potential subscribers. However, sample mailings are expensive and time consuming to prepare and even the most successful sample mailings usually only have a response rate of one or two percent. By allowing readers to buy gift subscriptions at an introductory low rate we allow for the expansion of our subscriber base and pass the savings on to the buyer of the gift subscription.


Potential people to give gift subscriptions to include journalists, legislators and judges as well as ...

Scandal-Ridden, Bankrupt MCI WorldCom Wins No-Bid California Prisoner Phone Contract

A renewed four-year no-bid prisoner phone contract was awarded in June, 2002 by the California Department of General Services to MCI WorldCom, a telephone conglomerate whose recent bankruptcy exposed the largest accounting fraud in US business history - $11 billion. The non-competitive award, giving MCI exclusive control of prisoner phone calls in 29 of California's state prisons (the other four went to Verizon Corp.) was let two months after MCI gave $13,000 and one month after Verizon gave $25,000 to Governor Gray Davis' political campaign fund. MCI spokeswoman Natasha Haubold called the timing "purely coincidental." Gov. Davis, under intense media pressure, had recently returned a $25,000 donation that preceded an $85 million no-bid award to software supplier Oracle Corp.


Charles Carbone, legal director of California Prison Focus - a San Francisco non-profit prisoner rights group - called the award "very disconcerting" because the contract "should have been opened to competitive bidding." But even if it had been, it is unclear for what factor the "winner" would have been selected. California, like many other states, exacts a contractor "kickback" as a flat percentage of all prisoner phone revenues. The previous two-year MCI contract generated approximately $35 million in annual kickbacks ...

$500,000 Settlement in Connecticut Suicide

On April 14, 2003, the family of a prisoner who committed suicide in 1996 while in a Connecticut prison settled with the state for $500,000.


William Dumais, 19, was imprisoned in the Corrigan Correctional Institution in Uncasville from December 1995 to February 1996 on a charge of fourth-degree larceny. On his first full day at the prison, he was seen by a psychiatric nurse and placed on medication after he was discovered "crying and talking about killing himself," according to the lawsuit filed by his family.


Dumais was released in February but returned to Corrigan in April 1996 after he failed to appear on time at a court hearing. According to the lawsuit, which was scheduled for trial May 21, 2003, a nurse at Corrigan failed to properly review medical records and therefore did not notice his psychiatric history. Two days later, Dumais hung himself.


Dumais had a history of depression. He had tried to kill himself on many occasions, the lawsuit revealed. In one incident, at the age of 14, he commandeered his father's car and crashed it into a tree. He told medical personnel he had "wanted to kill himself." In other incidents he had cut ...

Dead Man Waking

Is it possible Timothy McVeigh was fully alert and utterly sentient when potassium chloride shot through his leg and stopped his heart? The tear witnesses saw well up in his left eye suggests that he might have been very conscious as lethal drugs burned his veins, took his breath, and seized his heart. There are lots of people who hope so. But Mark Heath is not one of them. "It gave me the creeps," Heath, an anesthesiologist and neuroscientist at Columbia Presbyterian Medical Center in New York, says of the tear. "It is a classic sign of an anesthetized patient being awake." Heath found it disturbing to think that the federal government would torture McVeigh and other citizens it puts to death.


In fact lethal injection has become the execution method of choice in most jurisdictions precisely because it seems to induce a more dignified dispatch than either the electric chair or gas chamber. The idea is to "show respect and dignity for everyone involved," says Federal Bureau of Prisons spokesman Dan Dunne. Toward this end a sedative, sodium thiopental, or Pentothal, is pumped into the condemned prisoner's blood stream, rendering him or her unconscious.


Prompted by reports of ...

Family Awarded $229,000 Against CMS in Illinois Hepatitis C Jail Death

A jury has awarded the family of a prisoner who died while in the Kane County Illinois Jail $229,500. On May 16, 2002, after 92 hours of deliberation, the jury returned a verdict against Correctional Medical Services of Illinois, the jail's health care contractor. The total award was ...

Honduras Prison Massacre: What Really Happened

On April 5, 2003, 68 people were murdered inside the walls of the El Porvenir prison in Honduras. The story that initially came out of that country said that 59 of the dead were gang members who shot at other prisoners, then barricaded themselves inside the cellblocks. Original reports went on to say that the "vicious" group then set a suicidal fire, killing innocent victims in the process. All the while, the report said, as police were rushing in to restore order.


The only problem with the story though is that it was all false. According to outside experts, it was all made up to cover up what really happened in what turns out to be the worst Honduran prison massacre in many, many years.


According to the new report commissioned by the nation's president, 51 of the dead, all members of a street gang, were actually executed by state police, soldiers, prison guards, and other prisoners working with the guards. The murdered prisoners were either shot, stabbed, beaten or burned to death by the force.


"The prison was a time bomb," said Jose Edgardo Coca, a former police sergeant known as the prisons "leading inmate." The day of ...

Cheap Mexican Prison Labor Exploited by U.S. Firms

Even with U.S. laws prohibiting the importation of commodities produced with prison labor, prison officials in northern Mexico report that prisoners there are making furniture headed for Texas. Moreover, they're pursuing more contracts with American companies to produce a variety of goods, even offering to label the products in such a way that their origin is hidden. "Our products don't say they are made in prison," said Manuel del Riego, the Tamaulipas state prison director. "They put a fancy tag on them and say they are made in a faraway country."


Prison factories are seen by some Mexican authorities as a way to counter the outflow of foreign-owned business from within Mexico's borders to even cheaper labor in Asia. Prison labor, however, faces global criticism. The importation of prison made goods is banned by many countries including the U.S. on the basis it siphons jobs from the public sector, weakens unions, and creates a fertile breeding ground for human rights abuses.


Even so, one U.S. businessman, Clint Hough of Austin, Texas has been purchasing prison-made furniture for over a year, says del Riego. Asked during an interview at the prison whether or not he ...

Michigan Visiting Rules Upheld by U.S. Supreme Court

On June 16, 2003, the United States Supreme Court unanimously upheld visiting restrictions imposed by the Michigan Department of Corrections (MDOC). The decision reverses contrary rulings by the U.S. Sixth Circuit Court of Appeals and a Michigan federal district court. Twenty-one states plus the federal government filed amicus curiae briefs on Michigan's behalf. The decision makes it possible for other states to impose the same sweeping restrictions on their prisoners by adopting Michigan's rules.


In 1995 MDOC imposed broad restrictions on the number of visitors prisoners could have. The Department was responding to prison overcrowding, alleged drug smuggling into prisons by visitors, and allegations that prisoners had harmed unsupervised children during visits. The rules prohibited visits by minors who were not children, stepchildren, or grandchildren of prisoners; prohibited visits by former prisoners who were not immediate family; prohibited visits by children where a prisoner parent had lost custody of the children; and allowed only ten selected other persons, not counting clergy and attorneys, on each prisoner's visiting list. The rule also banned visits for at least two years, excluding clergy and attorneys, for anyone disciplined two or more times for a drug offense. After the case ...

Thomas and Scalia Flunk History

The unanimous decision of the United States Supreme Court in Overton v. Bazzetta, upholding Michigan's punitive restrictions on prisoners' visiting rights, showed again how antagonistic the Rehnquist Court is toward prisoners' rights compared to the Burger Court. But the Court's two most conservative justices showed they would like the clock turned back even further.


In his concurring opinion in Overton, Justice Clarence Thomas (joined by Justice Antonin Scalia) asserted that "the history of incarceration as punishment supports the view that the [prison] sentences& terminated any [emphasis added] rights of intimate association."


Thomas and Scalia cited several works of prison historiography, including my book, With Liberty for Some: 500 Years of Imprisonment in America (1998), to trace the development of imprisonment in this country from the late 18th century to the mid-19th century, as if to buttress their case that Michigan's policy didn't somehow violate the Eighth Amendment ban against cruel and unusual punishment. (Why they considered only that less-than-100-year span wasn't explained.)


Their opinion included examples of some early prison practices from slavery days, without condemning them or suggesting that society might do well to progress from such barbarism.


Thomas and Scalia seemed to indicate ...

Federal Appeals Courts Address Finality of Dismissals, Grievance Contents

In two, separate, unrelated cases, the Third and Seventh U.S. Circuit Courts of Appeals have addressed the finality of dismissals without prejudice, the contents of grievances, and various procedural points under the Prison Litigation Reform Act (PLRA) and prisoner suits brought under 42 U.S.C. § 1983.


Ali Ahmed, a former Pennsylvania prisoner, filed suit in 1998 against various Pennsylvania corrections officials for an assault by two prison guards. Ahmed failed to appeal his administrative grievances in a timely manner and was barred from exhaustion. Nevertheless, Ahmed sued under 42 U.S.C. §1983, and the district court dismissed, Ahmed v. Sromovski, 103 F.Supp.2d 838 (E.D. Pa. 2000). The court designated the dismissal as "without prejudice."


Ahmed was released from prison in July 2000. He did not appeal the dismissal. Subsequently, Ahmed moved to amend his complaint to relate back to the prior complaint. The district court denied the motion, and Ahmed appealed.


Ahmed argued that since the original dismissal was "without prejudice," he should be granted leave to amend. Pennsylvania argued that the original dismissal was a final, appealable order, which Ahmed failed timely to appeal. The appeals court held that, though designated a dismissal ...

Washington SCC Injunction and Contempt Order Upheld

On February 26, 2003, U.S. District Judge Barbara Rothstein upheld an injunction and contempt order issued against the superintendent and clinical director of the Special Commitment Center ("SCC") at McNeil Island, Washington. The SCC houses former prisoners civilly committed as "sexually violent predators." In 1994, U.S. District Judge William Dwyer issued an injunction that required SCC to provide constitutionally adequate mental health treatment to its residents. In 1999, Judge Dwyer held SCC in contempt for failing to take all reasonable steps to comply with the injunction. Since that time, the court has on several occasions held that SCC has yet to comply with the injunction and continued the 1999 contempt sanctions. A detailed history of the SCC and the litigation its creation spawned was discussed in the following issues of PLN: May 2000, pg. 8; Sept. 2000, pg. 20; Aug. 2001, pg. 21 & 32.


Judge Rothstein held a two-day evidentiary hearing in December 2002 to determine whether SCC had achieved substantial compliance with the injunction and, if so, whether the contempt sanctions against it should be purged. The court noted six specific steps SCC must take in order to achieve injunction compliance: (1) fund and establish less restrictive alternative ("LRA") facilities in locations other than McNeil Island; (2) develop additional LRA space soon enough so that residents can apply for LRA status and receive prompt placement if they are found eligible; (3) appoint a new ombudsman; (4) develop vocational training facilities and programs; (5) fully implement an effective grievance procedure; and (6) revive and continue regular consultations regarding the special needs ...

Director of Florida's Private Prison Commisssion Resigns, Fined $10,000 for Ethics Violations

Agreeing to pay $10,000 for ethics violations, the director of Florida's agency overseeing private prison contracts resigned in April, 2002. The Florida Ethics Commission has accepted the settlement. C. Mark Hodges was in charge of Florida's Correctional Privatization Commission (CPC), a state agency empowered to award contracts to private prison companies where it would save the state money over the cost of state-run prisons. As director, he was the natural target of the Florida state prison guards union, the Florida Police Benevolent Association (FPBA).


In November, 2001, FPBA tipped off the Florida Department of Management Services that out-of-use computers at CPC had been illegally used to access porn websites. This proved to be true. Under Florida's open records law, it was legal for FPBA to download the computers' hard drives. Ken Kopczynski, an FPBA political affairs assistant, claimed he was only looking "to find evidence of Hodges doing private consulting" by checking the computers. "That's when we hit the porno." Hodges retorted that inspection of the unlocked computers was but another attempt by FPBA to discredit him with a smear campaign whose true motive was to derail non-union jobs. The union's complaint further alleged ...

Eight Washington Prison Premises Liabilities Claims Settled for $35,058

Premises liabilities claims by injured Washington state prisoners and visitors were settled in eight unrelated claims totaling $35,058 over a two year period in 2001 and 2002.


Pro per Walla Walla State Penitentiary prisoner Marcus Ogans filed a 42 U.S.C. § 1983 complaint in state superior court under ...

Nebraska Prisons Get Progressive Phone Contract

by Matthew T. Clarke

In February, 2003, The Nebraska Department of Corrections (DOC) has contracted with AT&T to set up what may be the most progressive prisoner phone service in the United States. The five-year contract makes AT&T the sole provider of local and long distance services, associated equipment, maintenance and administrative services to the approximately 3,700 prisoners in the Community Corrections Centers at Lincoln and Omaha, the Diagnostic and Evaluation Center at Lincoln, Hastings Corrections Center, Lincoln Correction Center, Nebraska Correction Center for Women, Nebraska Correctional Youth Facility at Omaha, Nebraska State Penitentiary, Omaha Correctional Center, Work Ethic Camp at McCook, and the Youth Rehab Treatment Centers at Geneva and Kearney.

AT&T operates more than 49,000 prisoner phone stations at over 3,000 U.S. prisons and jails. AT&T invented prisoner "collect calling only," 23 years ago. However, the contract calls for AT&T to offer the dialer a choice of calling collect or charging the call to a debit account. The ability of prisoners to call using a debit account has two favorable features: a 20% lower call rate and the ability to place international calls (which may not be done collect).

Prisoners are limited to 15 minutes of phone calls a day. The DOC is not accepting a commission. This allows for remarkably low rates. Local collect calls cost $1.00 regardless of length. Local debit calls cost 80¢, regardless of length. Each non-local call involves a service charge plus a call rate. The service charge for collect calls is 75¢; for debit calls it is 60¢. Thus, the charge on calls is as follows: 75¢ + 7¢/min (collect) or 60¢ + 5.6¢/min (debit) for a non-local call within the same area code; 75¢ + 10¢/min (collect) or 60¢ + 8¢/min (debit) for non-local calls outside the same area code, but within NE; 75¢ + 20¢/min (collect) or 60¢ + 16¢/min (debit) for out-of-state calls; and 50¢ per international unit (debit only). International calls to Canada, Mexico, Europe, and most South American, Central American, and Asian countries cost one international unit per minute. Very remote countries and those lacking modern digital telephone technology cost up to five international units a minute.

The prisoner phone system has digital switching with sophisticated security features. All calls are digitally recorded and the recordings backed up and archived for years. CDs can be made of the recordings for evidentiary purposes. The system detects call-forwarding and 3-way calling. Once detected, the call can be automatically disconnected or its recording automatically flagged for review. The system also automatically blocks prisoners from dialing additional digits once the call is placed ...

Washington DOC Settles Failure to Protect Case for $13,000

On March 16, 2002, the Washing-ton Department of Corrections (WA DOC) settled an Eighth Amendment complaint for failure-to-protect at the Washington State Reformatory (WSR) where a high security prisoner was attacked and seriously injured by another prisoner known to want to kill him.


Ryan Bartlett, a maximum security prisoner at Clallam Bay Correctional Center's Intensive Management Unit (IMU), was moved to the segregation unit of WSR. While working there as a tier tender, he was "gassed" with feces and urine by another prisoner who announced he wanted to kill Bartlett. Although this event precipitated a keep-away order in their files, the aggressor was soon returned to Bartlett's tier, resulting in their having a common yard period, albeit in separate cages. During one such outing, the aggressor scaled the 14 ft. fences isolating them and attacked Bartlett with a shank, inflicting severe lung and liver injuries. After much delay, he was finally taken to an outside hospital for emergency 3-1/2 hour surgery to close his wounds. Nine days later, he was transported to Shelton Correctional Center's IMU, with no further medical attention or pain medication.


On January 11, 2000, Bartlett sued, initially in pro per, under 42 ...

Nebraska Prisons Get Progressive Phone Contract

by Matthew T. Clarke


In February, 2003, The Nebraska Department of Corrections (DOC) has contracted with AT&T to set up what may be the most progressive prisoner phone service in the United States. The five-year contract makes AT&T the sole provider of local and long distance services, associated equipment, maintenance and administrative services to the approximately 3,700 prisoners in the Community Corrections Centers at Lincoln and Omaha, the Diagnostic and Evaluation Center at Lincoln, Hastings Corrections Center, Lincoln Correction Center, Nebraska Correction Center for Women, Nebraska Correctional Youth Facility at Omaha, Nebraska State Penitentiary, Omaha Correctional Center, Work Ethic Camp at McCook, and the Youth Rehab Treatment Centers at Geneva and Kearney.


AT&T operates more than 49,000 prisoner phone stations at over 3,000 U.S. prisons and jails. AT&T invented prisoner "collect calling only," 23 years ago. However, the contract calls for AT&T to offer the dialer a choice of calling collect or charging the call to a debit account. The ability of prisoners to call using a debit account has two favorable features: a 20% lower call rate and the ability to place international calls (which may not be done collect).


Prisoners are limited to 15 minutes of phone calls a day. The DOC is not accepting a commission. This allows for remarkably low rates. Local collect calls cost $1.00 regardless of length. Local debit calls cost 80¢, regardless of length. Each non-local call involves a service charge plus a call rate. The service charge for collect calls is 75¢; for debit calls it is 60¢. Thus, the charge on calls is as follows: 75¢ + 7¢/min (collect) or 60¢ + 5.6¢/min (debit) for a non-local call within the same area code; 75¢ + 10¢/min (collect) or 60¢ + 8¢/min (debit) for non-local calls outside the same area code, but within NE; 75¢ + 20¢/min (collect) or 60¢ + 16¢/min (debit) for out-of-state calls; and 50¢ per international unit (debit only). International calls to Canada, Mexico, Europe, and most South American, Central American, and Asian countries cost one international unit per minute. Very remote countries and those lacking modern digital telephone technology cost up to five international units a minute.


The prisoner phone system has digital switching with sophisticated security features. All calls are digitally recorded and the recordings backed up and archived for years. CDs can be made of the recordings for evidentiary purposes. The system detects call-forwarding and 3-way calling. Once detected, the call can be automatically disconnected or its recording automatically flagged for review. The system also automatically blocks prisoners from dialing additional digits once the call is placed ...

Kansas Sheriff, Lawyer, Jailed for Sweetheart Jail Contract

Negotiating their way out of 21 felony bribery charges, a former Kansas sheriff and a lawyer-cum-executive for a private prison contractor each pled guilty to two misdemeanor counts of conflict of interest on December 18, 2002, getting only one year in county jail and a $750,000 restitution order.


Reno County Sheriff Larry Leslie entered into a "prohibited contract" with lawyer Gerald Hertach when Leslie accepted $285,000 in bribes from Hertach for Leslie's part in awarding first a $1.5 million three-year contract and then an over $2 million four-year contract to Hertach's corrections company MgtGp Inc to run the Reno County jail annex. They had been indicted in May, 2001 after which Leslie resigned [PLN, Aug. `02].


Sentencing Judge Michael Barbera rejected a plea agreement involving only $750,000 in restitution because he doubted the two would pay. He did offer them a chance to do so after serving 90 days, however. Leslie said the $285,000, on top of his $59,762 annual salary, was "all gone." Leslie, Hertach and MgtGp Inc. were ordered to pay the $750,000. Hertach's attorney Steve Joseph opined that the punishment was "a little bit harsh for a ...

Washington Retaliation Suit Settled for $2,500

On February 27, 2002, the Washington DOC settled a prisoner claim of retaliation for his having filed a grievance and a lawsuit, for $2,500.


Airway Heights Correctional Center prisoner Douglas Gallagher was employed in the food factory production facility on a day when three door handles were broken off ...

California Taxpayer Action Forces Private Employer to Pay Prisoners Prevailing Wages

by John E. Dannenberg


Under California Code of Civil Procedure §526a, a private citizen taxpayer may bring an action to compel an officer or agent of a municipality to restrain him from wasteful or injurious expenditure of government funds. In a novel application of this law, the state was compelled to discharge its duty to pay prisoners prevailing wages under California Proposition 139, the Prison Inmate Labor Initiative of 1990, for work they had performed for CMS Blues (a private contractor) - on the theory that the state had opened itself to citizen watchdog oversight when it became financially accountable by attaching part of the prisoners' wages for the purpose of defraying incarceration costs.


Christina Vasquez is an officer of the Union of Needle trades, Industrial and Textile Employees, which had been involved in protecting the interests of prisoners at the R.J. Donovan Correctional Facility who were cheated out of wages by CMT Blues, a contractor using prisoners to manufacture clothing articles. (See: PLN, December, 2002, p.16.) Although the Union had appeared for the prisoners there, the instant action was taken by Vasquez in her capacity as a private citizen taxpayer to ensure that the wages paid the prisoners ...

Washington Posts Health Care Provider Information Online

Past issues of PLN have reported on the checkered pasts of many prison health care employees. Before being employed by prisons and jails many medical staff have been disciplined, had their licenses revoked and suffered other forms of license limitations designed to protect the public from sex predators and assorted incompetents. Washington has more than its share of incompetent prison medical personnel. In a major step towards government accountability and consumer protection, on April 15, 2003, the Medical Quality Assurance Commission of the Washington state Department of Health began to post the disciplinary histories of all medical care professionals licensed to practice in Washington state.


The MQAC website lists all pending and past disciplinary actions against the 260,000 medical care providers licensed in Washington state. This ranges from doctors, dentists, nurses, x ray technicians, acupuncturists and much more. Where discipline has occurred after July, 1998, the action taken is listed. Likewise in cases where charges are pending. For disciplinary actions occurring before that date, those will be indicated on the website and the information can then be requested from the MQAC in a hard copy format. The site is also useful to anyone, in prison or out, concerned about ...

U.S. Supreme Court: Reviving Expired Statute of Limitations Violates Ex Post Facto

U.S. Supreme Court: Reviving Expired Statute of Limitations Violates Ex Post Facto Clause


Reversing the California Court of Appeal, the U.S. Supreme Court ruled that California's recent law reviving criminal liability for previously time-barred prosecutions violated the Constitutional proscription against ex post facto laws.


Catering to public outrage against child molesters, the California Legislature in 1993 enacted a revised statute of limitations for such crimes - Penal Code (PC) §803(g). In place of the previous general three-year felony statute of limitations, §803(g) permitted sex crimes against children to be prosecuted within one year of the victim's report to the police. Moreover, in a 1996 amendment (PC §803(g)(3)(A)), the Legislature acknowledged that it intended such retroactivity to apply regardless of how old the offense was.


In 1998, based upon these intervening new laws, Marion Stogner was indicted for such crimes occurring between 1955 and 1973 - 40 to 22 years after the previous statutes of limitations had expired. After the trial court denied his motion to dismiss the indictment, and the California Court of Appeal affirmed the denial (Stogner v. Superior Ct. (2001) 93 Cal.App.4th 1229), Stogner petitioned the high court on ...

California Prisoner Who Received First Heart Transplant Dies

A California man, who is believed to be the first prisoner in the nation to receive a heart transplant while incarcerated, died last December from complications relating to the operation. The man, whose name has never been released, was serving a 14-year sentence for robbing a Los Angeles convenience store, but had been suffering from a viral heart infection from the time of his sentencing in 1996.


Though according to a prison spokesman the prisoner died because "his body was rejecting the heart," it is not clear whether he received proper and adequate post-surgery medical care from the California Department of Corrections.


The transplant itself, which took place on January 3, 2002, set off a nationwide controversy and debate over whether a prisoner should be eligible to receive an organ transplant when so many "law-abiding" citizens are on waiting lists. But both medical professionals and organ transplant centers alike say that their decisions about who gets organs depend solely on medical protocols, not social opinion. It was estimated that at the time of the prisoner's surgery there were over 4,000 patients on the waiting list for a donor heart.


Critics also cite the cost of the prisoner's ...

PLRA Physical Injury Rule Not Applicable in Non-Prison State Cases

The Eleventh U.S. Circuit Court of Appeals has vacated and remanded part of an Alabama Federal District Court's dismissal of a federal prisoner's suit against tobacco companies. The Court held that prisoner suits unrelated to prison conditions that are brought in state court do not have to satisfy the "physical injury" rule of the Prison Litigation Reform Act (PLRA), 42 U.S.C. §1997e(e).


William Mitchell is a federal prisoner. In December 1999, he filed suit in an Alabama Circuit Court against five tobacco companies including Brown & Williamson Tobacco Corporation and Liggett Group, Incorporated. All of Mitchell's claims involved Alabama tort law. Mitchell claimed physical and emotional injury from the companies in the form of shortness of breath, headaches, nicotine addiction, and fear of dying of cancer. Mitchell asked for $10,000,000 in actual and general damages from all defendants, $750,000 in actual damages from each defendant for nicotine addiction, and $1,000,000 in punitive damages from each defendant.


The tobacco companies had the case removed to federal court, citing 28 U.S.C. §1332. The complaint was referred to a magistrate judge for review. The magistrate ordered the parties to show ...

First Amendment Protects Witnessing of California Executions

by John E. Dannenberg


The Ninth Circuit U.S. Court of Appeals, finding a restrictive state prison regulation unconstitutional, ruled that public witnesses enjoy a First Amendment right to view California executions uninterrupted from the moment the condemned prisoner enters the death chamber.


The American Civil Liberties Union (ACLU), joined by a coalition of news media corporations as amici curiae, sued the California Department of Corrections (CDC) under 42 U.S.C. § 1983 to gain unrestricted viewing of the entire execution death chamber procedure. At issue was CDC's San Quentin Institutional Procedure (IP) 770. Whereas when cyanide gas was the method of execution, full viewing was permitted (IP 769), now that lethal injection is used, restrictions were placed on the process (IP 770) to shield the identity of the executioners during "set-up" when they insert needles and start an initial saline solution intravenous (IV) flow. Under IP 770, witnesses could only see the condemned prisoner after the saline IV was switched over to the lethal cocktail. The question ultimately was whether the First Amendment right of the public to witness executions trumped CDC's "legitimate penological interest" in hiding the identity of its executioners.


Initially, the district court ruled ...

Survivors of North Carolina Jail Fire Settle for $1.94 Million

On January 9, 2003, Mitchell County (NC) Superior Court Judge Marlene Hyatt approved a settlement in which the families of the eight fatalities and the nine survivors of the May 3, 2002, Mitchell County Jail fire will split $1.94 million. $60,000 had already been paid as funeral expenses for the eight victims. The settlement provides for the immediate payment of $50,000, minus fees, to each survivor and each family of a fatality. Another $4,013 will be reimbursed to a law firm that paid an expert to inspect the jail after the fire. The remaining $1.09 million will be divided among the plaintiffs by an arbitration panel.


The $1.94 million is close to the maximum the plaintiffs could have received under state law. It is also the maximum allowed by the county's insurance coverage. As a part of the settlement, the county admitted no guilt and the plaintiffs relinquished the right to sue the county or its employees.


Scott MacLatchie, the attorney for the county, said that fighting the claim would have resulted in huge legal expenses. "It was a wise business and economic decision, and somewhat of a moral decision," said MacLatchie.


The ...

Receipt of Federal Funds Waives Eleventh Amendment Immunity for Rehabilitation Act

The U.S. Third Circuit Court of Appeals has affirmed in part and reversed in part a Pennsylvania Federal District Court's grant of summary judgment to state defendants in a prison employee's claim involving the Rehabilitation Act (RA) and Americans with Disabilities Act (ADA).


George Koslow, a water treatment plant supervisor at the State Correctional Institution - Graterford (SCI-Graterford) injured and reinjured his back while on the job. SCI-Graterford officials refused to grant Koslow relief from lifting water softener bags and climbing stairs, both of which Koslow claimed aggravated his injuries, and ordered Koslow to return to full work duties. Subsequently, Koslow was dismissed for being unable to perform essential functions of his job.


Koslow sued the Commonwealth of Pennsylvania, SCI-Graterford, and prison superintendent Donald Vaughn under the ADA, 42 U.S.C. §12101, et. seq., the RA, 29 U.S.C. §701, et. seq., and the Pennsylvania Human Rights Act (PHRA), 43 Pa. Stat. Ann., §951, et. seq. Koslow sought reinstatement and damages.


The district court granted summary judgment to the defendants on authority of Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001 ...

Diagnosis, Not Exposure, Triggers Limitation Period in HCV Action

The Iowa Supreme Court held in a workers compensation case that the statute of limitations in a hepatitis C exposure case begins to run on the date of diagnosis, rather than the date of exposure.


On October 2, 1990, Diane Perkins was employed by an Iowa retirement facility. On that date she was sprayed with blood when a shunt in a patient's leg ruptured. She had blood all over her body and in her mouth, eyes, and ears. Unbeknownst to Perkins, the patient was infected with the hepatitis C virus (HCV).


Perkins was tested for HCV on October 11, 1990, and the test results were negative. No other testing was performed until late 1995 or early 1996. Those tests revealed abnormal liver function, but Perkins was not actually diagnosed with HCV until April 1996.


In October 1996, Perkins filed a workers' compensation claim. The industrial commissioner denied her claim, concluding that Perkins knew shortly after the October 2, 1990 incident that she had been exposed to HCV and of the possibility that she contracted HCV. Accordingly, her claim was rejected because she failed to file her petition within two years of the October 2, 1990 injury.


The Supreme Court ...

Stun Belt Prejudice Reverses California Conviction

by John E. Dannenberg


The California Supreme Court overturned a three-strikes conviction and remanded the case for a new trial because of the potential for psychological prejudice from a remote-controlled electronic stun belt on a defendant's demeanor during testimony, where it was an abuse of discretion to use the belt at all absent a manifest need to impose it. James Allen Mar was convicted of interfering with a peace officer and resisting arrest that resulted in great bodily injury to the officer. Because Mar had two prior serious felony convictions, he was sentenced under the "Three Strikes" law to 26 years-life.


At issue was the prejudice that inhered from requiring him to wear a 50,000 volt stun belt, remotely controlled to disable him with an eight second shock. The trial court had imposed the belt, over objection, because Mar had been reportedly physically violent in jail. The California Supreme Court held that the trial court abused its discretion in denying the objection because the record did not support a "manifest need" for the belt.


While restraint at trial using shackles is common, the purpose is solely to restrain escape from or violent physical disruption of the courtroom proceedings ...

PLRA Does Not Apply to Challenges to Civil Commitment

by Matthew T. Clarke


The Eleventh Circuit Court of Appeals has held that the PLRA does not apply to challenges to conditions of confinement by persons detained under the Florida sexually violent predator program.


Bryant S. Troville, a Florida civil detainee committed pursuant to the Jimmy Ryce Act, Fla. Stat. ch. 394.910, et seq. (allowing civil commitment for sexually violent predators), filed suit under 42 U.S.C. § 1983 challenging his conditions of confinement. The magistrate judge granted him in forma pauperis status, then recommended dismissal of the suit under the PLRA, 42 U.S.C. § 1915(e)(2)(B)(ii), based upon his complaint containing "only generalized allegation with no effort to alleged what each defendant allegedly did or failed to do."


Troville filed objections to the magistrate's recommendations, conceding that he failed to allege facts regarding each particular defendant's violations. Troville also filed a motion requesting leave to amend his complaint. The district court adopted the magistrate judge's recommendations, dismissed the suit, and denied the motion. The district court granted Troville's motion to appeal in forma pauperis.


The clerk of the court of appeals sent Troville a "notice to incarcerated appellant of the ...

News in Brief

Alabama: In April, 2003, St. Clair Correctional Facility guard Cedric Bothwell, 39, was fired after being indicted in federal court on extortion charges. Bothwell is accused of selling crack cocaine to a prisoner in exchange for $4,000 and when the prisoner couldn't pay an additional $3,500 for another 2 ounces of crack, Bothwell threatened the prisoner. The prisoner's mother reported the extortion to FBI agents after Bothwell agreed to accept $2,000. She gave him the money in marked bills which was recorded by the FBI. After his arrest, Bothwell denied selling drugs and claimed the FBI had "set him up." Bothwell's brother Kelvn and Cedric's defense lawyer John Floyd, were also indicted on witness tampering charges in the case. Both maintain their innocence as well. Cedric had previously been accused of assaulting prisoners but those charges were dismissed after administrative investigations deemed the prisoners' account and injuries of being assaulted were insufficient to overcome Bothwell's denials.


Arizona: In July, 2003, temperatures in Phoenix averaged 110 degrees Fahrenheit, making it the hottest July since records were first kept in 1896. Over 2,000 prisoners in the Maricopa county jail live year round in ...

Pendency of Federal Lawsuit Doesn't Toll 31-Day Texas Limitations

A Texas state court of appeals has held that the pendency of a federal civil rights lawsuit on the same matter does not toll the statute requiring Texas state prisoners to file lawsuits in state court within 31 days after completion of the grievance procedure. § 14.005, Texas Civil Practices and Remedies Code.


Guy Allen, a Texas state prisoner, was in a prison bus that was involved in a single-vehicle accident. Allen exhausted his administrative remedies, then retained a lawyer. The lawyer gave the Attorney General (AG) notice of suit and an opportunity to settle the claim. The AG refused to settle, so the lawyer filed a lawsuit in federal court alleging that the bus driver's speeding and crashing into a four-foot embankment resulted in Allen's cracked collar bone, facial lacerations requiring 49 stitches, injured back, injured neck, and broken dentures. The federal court dismissed the suit because it involved simple negligence, an issue properly litigated in state court, not federal court.


Allen then filed another grievance and the attorney gave the AG another notice of suit and opportunity to settle. When these went unanswered for 113 days, he filed suit in state court. The trial court dismissed ...

Seventh Circuit Reverses BOP's Denial of Death Row Prisoner's Interviews

The Seventh Circuit Court of Appeals has reversed an Indiana Federal District Court's dismissal of a Bureau of Prisons (BOP) prisoner's complaint that he was unconstitutionally denied media interviews.


David Paul Hammer is a BOP prisoner in the Federal Death Row Unit, United States Penitentiary, Terre Haute, Indiana. Prior to March 2000, Hammer gave a number of news media interviews without incident. Following public outcry over an interview given by Timothy McVeigh in March 2000, Warden Harley Lappin denied every news media request for an interview with Hammer.


Hammer sued Attorney General John Ashcroft, Warden Lappin, and others under 42 U.S.C. §1983, claiming that denial of the interviews was not motivated by legitimate penological reasons but by a desire to censor death row prisoners. Moreover, Hammer alleged that the interview restrictions placed on him by Warden Lappin were much broader than BOP rules required.


Following screening under 28 U.S.C. § 1915A, the District Court dismissed for failure to state a claim. The district court held that Hammer had no right to face-to-face media interviews, and that Lappin's restrictions were related to penological interests. Hammer appealed. The defendants did not file a brief on appeal ...

 

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