Skip navigation

Prison Legal News: November, 2003

Issue PDF
Volume 14, Number 11

In this issue:

  1. Bloated Prison Budget Fuels California's Degenerative Incarceration Spiral (p 1)
  2. Washington Mail Ruling Published (p 5)
  3. From the Editor (p 5)
  4. Pro Se Tips and Tactics: Magistrate Judges in Federal Courts (p 6)
  5. South Carolina Cuts ACA Accreditation at Four State Prisons (p 8)
  6. World Court Orders U.S. to Stop Executing Mexicans (p 9)
  7. Over 600 Prisoners Brutalized by New Jersey Prison Guards (p 10)
  8. Texas Doesn't Have to Pay Interest on Trust Fund Accounts (p 11)
  9. Court Reporter Jailed for Botching VitaPro Trial Transcripts; Convicted Prison Chief Still Free (p 12)
  10. Sexual Abuse at Haltom City Jail in Texas (p 13)
  11. Mothers in Prison Losing All Parental Rights (p 14)
  12. Inmate Compensation Program Applies to Federal Pretrial Detainees (p 15)
  13. Phoenix Sheriff Arpaio Liable for Tent City Assault, Prisoner Awarded $635,532 (p 16)
  14. Ninth Circuit Judge Investigated for Writing Condemned Prisoner (p 17)
  15. Jury Awards $1.75 Million Against CMS in Illinois Jail Suicide (p 18)
  16. Kansas Prisoners Denied Credit for Time on Parole (p 19)
  17. Expert Testimony Required in Alaska Medical Suits (p 19)
  18. 100+ Canadian Prisoners Attempt to Escape from Private Superjail; Racial Profiling Alleged (p 20)
  19. Injunction Prohibits Virginia Grooming Policy Enforcement on BOP Prisoners (p 20)
  20. Washington Supreme Court Upholds Denial of Negligent Parole Supervision Claim (p 21)
  21. First Circuit Reverses 12(b)(6) Dismissal in Jail Rape Case (p 22)
  22. Confinement for Nonpayment Without Willfulness Violates Due Process (p 22)
  23. Trial Required in Pennsylvania Guard Beating (p 23)
  24. Education in Prison Declines (p 24)
  25. Texas Courts Clarify Prisoners' Right to Civil Bench Warrant (p 24)
  26. Gay Prisoners Not Entitled to Double-Occupancy Cell (p 25)
  27. Unauthenticated Evidence Does Not Support Summary Judgment (p 26)
  28. Incarceration Not Grounds for Termination of Parental Rights in Nevada (p 26)
  29. $112.50 Per Hour Post-Judgment Attorney Fees Upheld Under PLRA (p 27)
  30. Eighth Circuit Affirms Damages Award, Discovery Sanctions, Fees in Missouri Pepper Spray Case (p 28)
  31. America Without the Death Penalty: States Leading the Way (p 28)
  32. Oklahoma Prisoner/Paupers May Be Required to Pay Partial Filing Fee (p 29)
  33. Video-Visits Out in New Mexico Prisons (p 29)
  34. Arizona Surcharge on Fines Upheld (p 30)
  35. Oklahoma Jail Pays $385,000 Settlement in Baby's Death (p 30)
  36. Guard Awarded $515,813 Against Private Medical Provider (p 30)
  37. Texas Court Abused Discretion by Dismissing Prisoner's Retaliation Suit (p 31)
  38. Pepper Spray Drift Injury Can Be Actionable (p 32)
  39. Texas Prisoner Gets 30-Day Grace Period to File Expert Affidavit (p 32)
  40. News in Brief (p 33)
  41. Sex Offender Registries Asked: Where Are All the Sex Offenders? (p 36)

Bloated Prison Budget Fuels California's Degenerative Incarceration Spiral

by John E. Dannenberg


California's $5.3 billion prison spending plan was shaved only a miniscule $35 million in the August 2, 2003 $100 billion annual state budget - a "budget" that is admittedly $38.2 billion out of balance over the next two years - while state vehicle registration fees ...

Washington Mail Ruling Published

We reported in the September 2003 issue on a suit brought by PLN where the court issued permanent injunctions ordering the Washington DOC to deliver all bulk mail and catalogs sent to Washington prisoners and to provide due process to the sender and intended recipient when mail to Washington prisoners ...

From the Editor

SouthLand Prison News was a bi-monthly magazine published by Virginia prisoner Joseph Houck. In August, 2003, they published their last issue after almost five years of publishing. I am saddened at their passing as it illustrates the ongoing problems of the prison press in the United States. PLN will be ...

Pro Se Tips and Tactics: Magistrate Judges in Federal Courts

If you are representing yourself in federal court, you should become familiar with how prison cases may be handled by magistrate judges. This column looks at magistrate judge authority in federal cases, and at a recent Supreme Court case about magistrate judge procedure, Roell v. Withrow, 123 S.Ct 1696 ...

South Carolina Cuts ACA Accreditation at Four State Prisons

In a move that would purportedly save the state about $250,000 annually, a South Carolina Corrections Department official on April 13, 2003 announced they would cancel accreditation contracts at four state prisons, including one maximum-security institution.


Corrections Department director Jon Ozmint said the cuts were necessary due to state ...

World Court Orders U.S. to Stop Executing Mexicans

by Matthew T. Clarke


On January 5, 2003, Mexico applied for an injunction from the International Court of Justice, or World Court, to halt the execution of 54 of its citizens by the United States. Mexico claimed that none of them had been accorded their rights under Articles 5 and ...

Over 600 Prisoners Brutalized by New Jersey Prison Guards

On April 25, 2003, acting Attorney General Peter C. Harvey announced he would reopen a criminal investigation in which New Jersey prison guards reportedly brutalized over 600 prisoners.


When guard Fred Baker was stabbed to death in 1997, by prisoner Steven Beverly, at the medium security Bayside State Prison, all ...

Texas Doesn't Have to Pay Interest on Trust Fund Accounts

by Matthew T. Clarke


The Fifth Circuit Court of Appeals has ruled that the Texas Department of Criminal Justice (TDCJ) does not violate the Takings Clause by failing to pay prisoners the interest it earns on their trust fund accounts.


Gary Lee Hatfield, a Texas state prisoner, sued TDCJ under ...

Court Reporter Jailed for Botching VitaPro Trial Transcripts; Convicted Prison Chief Still Free

The latest development in the unsavory Texas VitaPro scandal is the jailing of a court reporter for botching the transcripts in the VitaPro trial.


In 1995, George W. Bush was the governor of Texas and James "Andy" Collins ran the Texas prison system which was involved in a multi-billion dollar ...

Sexual Abuse at Haltom City Jail in Texas

by Matthew T. Clarke


Allegations of sexual abuse have rocked the North Texas town of Haltom City. The allegations surfaced in March, 2001, when a Fort Worth woman filed a complaint with the Haltom City police stating that jailer Clint Wade Weaver, 22, coerced her into having sex with him ...

Mothers in Prison Losing All Parental Rights

Dial up Michelle Spruill and her gentle voice recording tells you that "if you ever need a helping hand, you can find one at this number." On her other line she signs off, "God loves you and so do I." Knowing that Spruill reluctantly gave up two sons for adoption ...

Inmate Compensation Program Applies to Federal Pretrial Detainees

Inmate Compensation Program Applies to Federal Pretrial Detainees, Is Exclusive Remedy for Work-Related Injury


The Seventh Circuit Court of Appeals held that the Inmate Compensation Program (ICP) at 18 U.S.C. § 4126(c) applies to pretrial federal detainees.


Leo Paschal was a pretrial detainee at the Metropolitan Correctional Center ...

Phoenix Sheriff Arpaio Liable for Tent City Assault, Prisoner Awarded $635,532

The Arizona Court of Appeals upheld a jury verdict awarding a prisoner compensatory damages totaling $440,532 and punitive damages totaling $195,000, against Maricopa County, Sheriff Joseph Arpaio, his wife, and other defendants, for failing to protect him from being assaulted by other prisoners. The court also reversed the ...

Ninth Circuit Judge Investigated for Writing Condemned Prisoner

by Marvin Mentor


California Attorney General Bill Lockyer called into question the impartiality of Ninth Circuit Judge Alex Kozinski as to death penalty cases after Kozinski and two other Ninth Circuit judges visited San Quentin State Prison in California, speaking with three condemned prisoners. Kozinski further wrote to one of ...

Jury Awards $1.75 Million Against CMS in Illinois Jail Suicide

Correctional Medical Services (CMS), a private provider of medical services to jails and prisons, lost a jury verdict in a case brought by a former Lake County, Illinois, Jail prisoner's estate alleging that CMS violated the prisoner's constitutional rights, resulting in his suicide. The jury awarded compensatory damages ...

Kansas Prisoners Denied Credit for Time on Parole

The Kansas Supreme Court ruled that parolees sentenced for crimes committed while on parole cannot have the time on parole deducted from their new sentence pursuant to KSA § 21-4608 et seq and amendments thereto.


In Kansas, crimes committed while on parole are sentenced consecutively to the crime for which parole ...

Expert Testimony Required in Alaska Medical Suits

The Alaska Supreme Court held that pro se litigants are not entitled to judicial advice as to the ramifications of every decision made during the course of litigation. That court affirmed the trial court's summary dismissal of the pro se plaintiff's medical negligence action.


James Kaiser was injured ...

100+ Canadian Prisoners Attempt to Escape from Private Superjail; Racial Profiling Alleged

According to the Toronto Star, on September 20, 2002, more than a hundred prisoners at the privately-run Superjail in Penetanguishene, Ontario, used a battering ram to attempt an escape. According to the Ontario Provincial Police, the prisoners, who were armed with homemade weapons and equipped with crude gas masks, breached ...

Injunction Prohibits Virginia Grooming Policy Enforcement on BOP Prisoners

A federal district court for the District of Columbia granted an injunction to a class of Rastafarian and Muslim prisoners holding the requirement that those prisoners must cut their hair or shave their beards imposes a substantial burden on their religious beliefs. The prisoners are in the custody of the ...

Washington Supreme Court Upholds Denial of Negligent Parole Supervision Claim

The Washington State Supreme Court upheld a trial court's judgment for the State in a negligent parole supervision case, brought by a woman who was abducted and raped by a paroled sex offender.


In 1993, Byron Schref was paroled on convictions for kidnapping, raping and setting a woman on ...

First Circuit Reverses 12(b)(6) Dismissal in Jail Rape Case

The United States Court of Appeals for the First Circuit reversed a district court's Rule 12(b)(6) dismissal of a failure to protect action, holding that the complaint sufficiently stated a claim for failure to protect.


On August 30, 1999, Jesus Manuel Calderon-Ortiz (Calderon) was confined as a ...

Confinement for Nonpayment Without Willfulness Violates Due Process

Confinement for Nonpayment Without Willfulness Violates Due Process, Washington Courts Have 10 Years to Collect Fines


The Supreme Court of the State of Washington, sitting en banc, held that defendants cannot be jailed for failure to pay fines, in the absence of a finding that the failure was willful. The ...

Trial Required in Pennsylvania Guard Beating

by John E. Dannenberg


The Third Circuit U.S. Court of Appeals held that summary judgment for defendant prison guards was inappropriate without a trial to develop the facts, in a case where a prisoner claimed he was viciously beaten by six guards while another guard watched.


Carl M. Smith ...

Education in Prison Declines

In a special report issued in January 2003, the Bureau of Justice Statistics (BJS) found that participation rates in prison education programs declined 5% from 1991 through 1997, although the total number of prisoners in education programs rose with the prison population in the United States. The report surveyed prisoner ...

Texas Courts Clarify Prisoners' Right to Civil Bench Warrant

by Matthew T. Clarke


The mechanism for a Texas pro se prisoner to gain transport to court for a hearing is to file a motion for bench warrant or petition for a writ of habeas corpus ad testificandum (WHCAT). Two Texas courts of appeals have held that prisoners have the ...

Gay Prisoners Not Entitled to Double-Occupancy Cell

Gay Prisoners Not Entitled To Double-Occupancy Cell


The Fourth Circuit U.S. Court of Appeals held that legitimate penological interests supported a prison policy to restrict homosexual male prisoners to single celled housing while at the same facility yet permitting homosexual female prisoners to live together, as well as heterosexual ...

Unauthenticated Evidence Does Not Support Summary Judgment

by Matthew T. Clarke


A Texas state court of appeals held that the trial court's granting of TDCJ's motion for summary judgment was error because photocopies of prison rules attached to the motion were not authenticated.


Richard Allen Kleven, II, a Texas state prisoner, sued the Texas Department ...

Incarceration Not Grounds for Termination of Parental Rights in Nevada

In two separate parental rights cases, the Nevada Supreme Court held that imprisonment alone is not sufficient grounds for termination of parental rights.


In 1997, the minor child Q.L.R. was born to Roger R. and his wife, Dina M. Dina and Roger separated in August 1999. Roger admitted ...

$112.50 Per Hour Post-Judgment Attorney Fees Upheld Under PLRA

The Court of Appeals for the Ninth Circuit has held that post-judgment attorney fees are compensable under the Prison Litigation Reform Act (PLRA), though subject to the PLRA's rate cap of $112.50 an hour.


In 1991, Robert Webb, then a prisoner in Idaho's Ada County Jail, brought ...

Eighth Circuit Affirms Damages Award, Discovery Sanctions, Fees in Missouri Pepper Spray Case

The U.S. Eighth Circuit Court of Appeals upheld a jury verdict, damages awards, and discovery sanctions against Missouri Department of Corrections officials at the Potosi Correctional Center (PCC) in a case involving excessive force against PCC prisoners.


Edward V. Lawrence and Dennis Kirksey, PCC prisoners, sued PCC Guard Thomas ...

America Without the Death Penalty: States Leading the Way

America Without the Death Penalty:
States Leading the Way

by John F. Galliher, Larry W. Koch, David Patrick Keys,


and Teresa J. Guess. Northeastern Univ. Press, Boston, 2002,


280 pages, hardcover $35.00


Review by Robert H. Woodman


Death penalty foes seeking to abolish government-sanctioned murder in their states now ...

Oklahoma Prisoner/Paupers May Be Required to Pay Partial Filing Fee

Oklahoma Prisoner/Paupers May Be Required to Pay Partial Filing Fees


The Oklahoma Supreme Court upheld a trial court order directing an indigent prisoner to pay partial filing fees from future prison labor earnings.


Eugene Smith, an Oklahoma prisoner, petitioned a Blaine County, Oklahoma trial court for a writ of ...

Video-Visits Out in New Mexico Prisons

After two years, the draconian practice of video-only visitation was abolished in New Mexico prisons. "I believe we can achieve the same security goals with non-contact visits," said newly installed Corrections Secretary Joe Williams. "Keeping an inmate's family ties are important," he added. Williams went on to describe the ...

Arizona Surcharge on Fines Upheld

Arizona Surcharge On Fines Upheld


The Arizona Supreme Court recently upheld A.R.S. 16-954(C) which imposes a 10% surcharge on civil and criminal fines, with a portion of the proceeds to fund political campaigns.


Steven May, an Arizona legislator, received a $27 parking ticket but refused to pay ...

Oklahoma Jail Pays $385,000 Settlement in Baby's Death

Oklahoma Jail Pays $385,000 Settlement
in Baby's Death


On December 11, 2002, Oklahoma County, Oklahoma agreed to settle a medical neglect suit by paying $385,000 to Deborah Smith, 31, a former prisoner in the Oklahoma county jail. While imprisoned in the jail in March, 1998, Smith repeatedly ...

Guard Awarded $515,813 Against Private Medical Provider

A Florida Jury awarded a Martin County Jail guard, Ronald Keeler, $515,813 against a private medical provider. Keeler sued Correctional Physician Services (CPS), who provided medical care to jail prisoners, and New Horizons of the Treasure Coast, Inc., who was a subcontractor to provide mental health services to prisoners ...

Texas Court Abused Discretion by Dismissing Prisoner's Retaliation Suit

by Matthew T. Clarke


A Texas state court of appeals has held that the trial court abused its discretion when it dismissed a prisoner's suit that alleged retaliation for accessing federal courts.


Angel Martinez Vacca, a Texas state prisoner, filed suit in state court under 42 U.S.C ...

Pepper Spray Drift Injury Can Be Actionable

by John E. Dannenberg


The Ninth Circuit U.S. Court of Appeals held that where guards' pepper spraying of combatant prisoners in one cell did not violate their Eighth Amendment rights against cruel and unusual punishment, the drift of the spray to neighboring cells, with no attention to calls of ...

Texas Prisoner Gets 30-Day Grace Period to File Expert Affidavit

by Matthew T. Clarke


A Texas state court of appeals has ruled that a prisoner claiming accident or mistake in failing to file an expert report within 180-days of filing his medical negligence suit is entitled to a 30-day grace period in which to file the report.


Gerald Allen Perry ...

News in Brief

Alabama: In August, 2003, 163 prisoners on death row at Holman Prison were allowed to have small fans to relieve the heat in their cells. The prison has no air conditioning. Fans had been allowed but were banned on death row in 1995. In 2002 the Southern Poverty Law Center ...

Sex Offender Registries Asked: Where Are All the Sex Offenders?

Sex Offender Registries Asked:
Where Are All the Sex Offenders?


An informal poll by the organiza-tion Parents for Megan's Law has revealed holes in states' abilities to track the location of convicted sex offenders who are required to register with local authorities under the so-called "Megan's Law" each ...