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Prisoner Education Guide

Prison Legal News: November, 2003

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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 were tripled, universities lost $480 million, K-12 grade school funding was slashed, health clinics for the aged and infirm were shuttered, state sales tax re-apportionment to counties was hijacked, court budgets were cut 10%, 800 Highway Patrol positions were eliminated, public works projects were delayed or canceled and University of California tuition fees were increased 25%. Although the budget was a month overdue, the California prison guards' 7% wage increase took effect immediately. The first increment of a five year programmed 37% increase, it had been quietly separately signed into law by Governor Davis as "emergency legislation" on January 15, 2002 (Chapter 1, Stats. 2002) without regard for the future welfare of the rest of the state.

The 37% package, representing an estimated $518 million annual added budget burden, is the result of the influence bought with multi-million dollar political campaign donations by the California Correctional Peace Officers Association (CCPOA ...

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 is censored. The injunctions went into effect on August 17, 2003.

The Court's ruling has been published at Prison Legal News v. Lehman, 272 F.Supp.2d 1151 (WD WA 2003). The DOC has filed an interlocutory appeal of the injunctions. PLN's claim that the Washington DOC's censorship of court rulings, settlements and verdicts that it sends to Washington prisoners is unconstitutional is stayed pending a ruling by the court of appeals.

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 taking over SPN's remaining subscription obligations as soon as we receive their mailing list. SPN focused primarily on news from the Eastern and Southern states. PLN will retain its national focus and continue covering news and legal developments from all fifty states.

We recently expanded to 40 pages to bring our readers still more news and information. Even with the expansion there is still plenty going on. More than we have room to print. Our goals for the next year are to increase the number of advertisers in PLN in order to expand our size further and to better determine the types and kind of news that you, our readers, find useful.

A reader survey form is enclosed with this issue. Please take a few minutes to fill it out and let us know what you think of PLN's content and the issues and news that we cover ...

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 (2003).

Article III, Magistrate Judges,

and Prison Cases

The U.S. Constitution provides that people who file civil suits in federal court are entitled to what is called an "Article III Judge." Article III of the Constitution says that the "judicial power" of the U.S. government is exercised by judges who "hold their offices during good behavior&" This has been interpreted to mean judges sitting for life who have been appointed by the President and confirmed by the Senate, and so parties in federal court have a right to this kind of judge in most cases. An "Article III Judge" is what is commonly known as a "federal district judge," and I will use the term "district judge" in this column.

The workload for district judges is very heavy in many districts, and so Congress has provided for help for district judges in the form of magistrate judges. 28 U.S.C. § 636. Magistrate judges are not appointed by the President, but instead by the district judges. 28 U.S.C. § 631. Magistrate judges sit as judges in so-called petty (relatively less serious) criminal cases in which there is no right to a district judge, and they can also provide help in other cases as well, including some civil cases in which there is a constitutional right to a district judge. There are many ways in which magistrate judges can do work in various kinds of cases, but in cases involving prisons and jails, the work of magistrate judges takes primarily two forms.

Assignment of Prison Cases to Magistrate Judge for Report and Recommendation

A district judge may assign a prison conditions case (or a habeas corpus case) to a magistrate judge to preside over crucial parts of the case _ including holding hearings to take evidence _ and to make a "report and recommendation" to the district judge, with the district judge making the final decision on the case. 28 U.S.C. § 636(b)(1)(B). In this kind of case, the district judge has the final power to decide the case "de novo" (without having to follow the magistrate judge's recommendation), which preserves the parties' right to have an "Article III Judge" make the final decision.

But the magistrate judge has a lot of power in this kind of case. The magistrate judge hears the evidence and makes a recommendation about what the "findings of fact" should be, as well as what the final ruling should be. The parties, if they disagree with the magistrate judge's proposals, must file papers showing the district judge where the magistrate judge made a mistake.

There are some things that are crucial to remember about this kind of assignment of a case to a magistrate judge for a "report and recommendation." The district judge does not have to ask you or any other party to the case whether you agree to this kind of assignment to a magistrate judge, the district judge can just assign it. And, most important, once the magistrate judge makes a "report and recommendation" to the district judge, advising that judge what to do with the case, you must make detailed objections to the "report and recommendation" on a short time frame. (The statute says ten days, 28 U.S.C. § 636(b)(1)(C), but in many districts you will be given a little longer by local rule.) If you do not make specific objections to every proposed fact and proposed legal recommendation with which you disagree, the judge does not have to decide whether to change that part of the report and recommendation.

Note that, as part of objecting to a magistrate judge's recommendations, you can ask the district judge to do a number of different things. You can ask that the district judge simply rule in your favor, of course, but there are other possibilities: Under 28 U.S.C. § 636 (b)(1)(C), the district judge has full power over this kind of case, and "may accept, reject, or modify, in whole or in part&" the magistrate judge's "findings or recommendations," and "may also receive further evidence or recommit the matter to the [magistrate judge] with instructions." The "instructions" the statute refers to could be a request for additional findings of fact, an order to take further evidence, an order to reconsider on a legal issue, or almost any other thing the district judge wants the magistrate judge to do. The point is that the district judge has a number of options and is the final decisionmaker in this type of case.

It is certainly possible to persuade a district judge to change the recommendation of a magistrate judge; that happens fairly often. And it is very important that you make specific objections to everything you would like the district judge to change, even if you do not think the district judge will overrule the magistrate judge's recommendation. If you don't make specific objections and you decide to appeal the judgment, you may not be able to complain to the Court of Appeals about any parts of the magistrate judge's recommendation to which you did not object. So you must always file specific written objections whenever you think ...

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 budget restrictions. The cuts are the latest in a series of cost-saving moves for a prison system that is said to be experiencing a $28 million deficit for the fiscal year ending June 30.

Ozmint said he plans to replace the accreditation process with what he says will be "tougher" in-house inspections. Before the announced cuts, all but two of South Carolina's prison were accredited by the American Correctional Association (ACA). The ACA conducts scheduled inspections, and then offers their seal-of-approval for those prisons that meet their standards. ACA auditors also purport to monitor a prison's strengths and weaknesses aiming to improve operations for both staff and prisoners. The result is supposed to be improved prisons with standards monitored and enforced by an outside agency.

Currently the cost of ACA accreditation is $7,200 per prison in South Carolina, compared to $8,200 per prison in other states ...

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 36 of the 1936 Vienna Convention of Consular Relations, which requires local officials to immediately inform an arrested foreign nation of the right to contact and enjoy free and privileged communications with the foreign person's consular officials.

"All of the relevant paragraphs used `shall' language and they don't say, "Wouldn't it be nice if a signatory did this?"' said Jordan Paust of the University of Houston Law Center. "This language expressly talks about human rights. I don't think the United States generally disagrees with this. As a matter of treaty law and generally within the domestic legal federal process, these treaty obligations are self-executing. Your laws must provide full effect, and if they don't, you're in violation of the treaty."

On February 5, 2003, the International Court of Justice at the Hague, Netherlands, issued an injunction ordering the United States to stay the execution ...

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 state prison facilities were placed on lockdown. What happened during that lockdown was a crime.

Surveillance tapes show one prisoner bouncing from step to step as guards dragged him down a steel staircase. Another prisoner, dragged along the floor by guards, asked to be allowed to walk; a supervisor ordered, "Don't pick him up, drag him. I want him drug along the floor, just like that, like a pig." Still other tapes reveal prisoners with various cuts and bruises from their beatings.

Eventually, reports of the brutality began to leak beyond the walls of Bayside. Ombudsman Maggie Aguero approached warden Scott Faunce with prisoners' allegations of physical persecution. Faunce claimed these prisoners had probably been fighting or had fallen against their bunks.

"I believe that Mr. Faunce was in denial," Ms. Aguero said.

Ms. Aguero recently told prisoners' attorneys that she was also approached by several guards who verified ...

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 42 U.S.C. § 1983, in federal court, alleging TDCJ violated the Fifth Amendment Takings Clause (forbidding the government from taking private property without just compensation). TDCJ filed a motion for summary judgment which the trial court denied. TDCJ then filed an interlocutory appeal.

After determining that it had jurisdiction to review questions of law, the Fifth Circuit noted that, for the year ending August 31, 2001, the trust fund had a consolidated account balance of $11,606,800 (maintained in a bank), which earned an interest of $199,438.59 (a breathtaking 1.76%). Against this was charged $228,627.25 in fees and $871,971 in costs of operating the trust fund. When past interest exceeded the cost of maintaining the trust fund, it was invested in U.S. Treasury bills resulting in $738,839.68 interest in FY 2001. Thus, the costs of maintaining the trust fund ...

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 rapid expansion. Ballooning from 35,000 to 150,000 prisoners in seven years, the prison system had been allowed special "emergency" contracting powers, sidestepping state bidding requirements. During that time, Collins used the special procedures to defraud the taxpayers out of millions of dollars. The fraud took many forms, but inevitably resulted in single-bid contracting on such items as razor wire and the inedible VitaPro meat substitute.

Shortly after he retired, amid rumors of a pending state indictment, Collins gave an interview to Texas Monthly magazine which appeared in the May 1996 issue. In the interview, Collins stated that people well above him in state government were involved in the VitaPro scam and that he would take them down with him if the State of Texas indicted him. The only person above Collins in the governmental hierarchy was the governorGeorge W. Bush. The state did not indict Collins.

In January ...

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 by threatening to accuse her of escape. Weaver resigned April 12, 2001, and was arrested in June of 2001.

In March 2002, Weaver pleaded guilty to official oppression, received two years probation, and was required to register as a sex offender.

On August 30, 2002, three women filed a federal civil rights suit against Weaver accusing him of promising them early release in exchange for sex. According to the suit, Weaver watched a woman (who was being held on unpaid traffic tickets) undress in a jail restroom on September 4, 2000. Weaver moved her to a break room and ordered her to perform a sex act on him. He then threatened her if she told anyone about it.

In November, 2000, Weaver allegedly ordered a 25-year-old Weatherford woman being held on outstanding traffic warrants to perform sex acts on herself before he would let her use the phone. He later ...

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 two years ago, a recent caller can't help wondering if the messages aren't somehow intended for their ears.

In late 1996, Spruill began serving a five-year sentence in an Illinois prison for various property crimes that stemmed from drug abuse. One of her sons was placed in foster care. Another, born in prison, followed. But Spruill was determined to eventually reunite with her children, so she began rehabilitating herself, taking parenting-skills courses and undergoing substance-abuse treatment.

Her efforts appeared to pay off. After two years, Spruill was released into a halfway home and she began the necessary court proceedings to get her kids back. There, however, she encountered the Adoption and Safe Families Act, a federal law passed in 1997 that requires states to move to sever a parent's right to a child after he or she has spent 15 months in foster care.

"Too little, too ...

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, a federal jail, in Chicago, Illinois, when he slipped and fell on a wet floor while working. Paschal filed a suit against the United States, under the Federal Tort Claims Act.

On the government's motion, the district court dismissed the suit, holding that the ICP provided Paschal's exclusive remedy. See e.g., United States v. Demko, 385 U.S. 149, 152, 87 S.Ct. 382 (1966); and Bagola v. Kindt, 39 F.3d 779, 780 (7th Cir. 1995).

On appeal the court noted that "this is the first reported case in which the inmate was a pretrial detainee rather than a convicted prisoner." The court explained that "[a] federal inmate is a person in federal custody; the reason for his being an inmate is irrelevant to his status as an inmate." The court then noted that the policies of the Bureau of Prisoners (BOP) "are generally applicable to ...

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 the three prisoners, Michael Hunter, when the Judge became fascinated with Hunter's fiction writing skills. Lockyer wrote Ninth Circuit Chief Judge Mary Schroeder asking, in essence, that Kozinski be barred from ever reviewing another California capital case.

Judge Kozinski, the son of Holocaust survivors, has a distinguished career. A top-ranking UCLA Law School graduate, he clerked for US Supreme Court Chief Justice Warren Burger. Later serving as assistant White House counsel under President Reagan, he was appointed at age 35 to the Ninth Circuit.

His life as an appellate Judge has not been cloistered. A frequent public speaker on college campuses and on European TV shows, Judge Kozinski has debated the morality of the death penalty against those who would unilaterally ban it. In a 1997 article for the New Yorker magazine, he noted some ambivalence about the death penalty but observed that some murderers nonetheless deserved it.

Hunter ...

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 is being served. The sentence is calculated by aggregating the maximum terms for the consecutive sentences, and then deducting time served on the prior offense to find the start date. The release date is then calculated based on that start date.

In 1980, Kansas prisoners were given credit for parole time served on the prior offense when calculating the term of confinement for crimes committed while on parole. KSA § 21-4608 (3)(e) (1979). In 1983, that statute was amended to disallow credit for parole time on a prior offense when calculating such a new term of confinement.

Joseph Anderson was sentenced to 5-20 years for a 1980 Kansas robbery conviction. He was paroled and convicted of crimes committed while on parole in 1984, 1986, and 1994. He was not given credit for his time on parole for the 1980 conviction when the new sentences were calculated. Anderson unsuccessfully petitioned for ...

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 at work in April 1995. He was treated with Body Ergonomics and Research (BEAR) therapy by Dr. Forooz Sakata. Sakata ignored Kaiser's complaints that the BEAR therapy aggravated his pre-existing injuries. Kaiser terminated that treatment in the spring of 1996. In March 1998, Kaiser filed a negligence action in an Alaska State court against Sakata and others, contending that they worsened his injuries with the BEAR therapy.

During litigation, the trial judge told Kaiser that a medical advisory panel could be appointed to evaluate Sakata's medical decisions. Kaiser was also told that the panel's opinion would not be dispositive, and its involvement might slow the legal process. Kaiser waived the panel.

The trial court repeatedly admonished Kaiser to find a medical expert to support his contentions, because without one, Sakata's expert's opinion would be uncontroverted which would entitle Sakata to summary judgment. Still, Kaiser conducted ...

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 several layers of security. However, Central North Correctional Centere (CNCC) officials, speaking to reporters later that day, refused to confirm that a battering ram or weapons were used. According to them, the disturbance was limited to a 175-man housing area and all of the prisoners were back in their cells less than two hours after the disturbance began.

CNCC is run by Management and Training Corporation (MTC), a Utah-based private prison company. It was designed to help replace 20 older jails around the province. The plan calls for two more superjails in Maplehurst and Linsday and envisions savings of $500 million a year.

The superjail has a total of 1,184 beds, 32 of which are designated for women. Prisoners at CNCC consist of about 1,000 serving up to a day less than two years and around 200 pretrial detainees. According to a confidential provincial cabinet document leaked in ...

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 Bureau of Prisons (BOP), but are housed in the Virginia Department of Corrections (VDOC). The BOP, since the Revitalization Act of 1997 was passed, has assumed custody of all felons coming out of District of Columbia courts. In October 1999, BOP began transferring those new prisoners into its own prisons, contract prisons throughout the country, and VDOC prisons. PLN has reported the previous rulings on this issue. The VDOC has a grooming policy requiring all male prisoners to be clean shaven and have short hair.

After a bench trial, the District Court found VDOC's grooming policy, enacted in November 1999, forces Muslim and Rastafarian prisoners to violate a fundamental tenet of their faith. Prisoners who refuse to comply with the grooming policy are disciplined and forcibly shaved by VDOC guards. Although the BOP has no such grooming policy, it refuses to consider alternatives to housing class members in VDOC ...

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 fire. Shortly after his release, Schref admitted to his parole officer that he had a sexual addiction, used pornography and frequented sex shops, masturbating in film booths. Schref's admissions were reported to the Indeterminate Sentence Review Board (ISRB) but his parole was not revoked.

Schref continued to use sexually explicit materials while on parole and in 1995, he abducted and raped Barbara Bell.

Bell sued the State, alleging that her injuries were the result of negligent parole supervision of Schref. During the trial, former ISRB member David Carlson testified that an alleged parole violation must be established with an 85 to 90 percent certainty before the ISRB would take action. Bell moved to strike the testimony as an incorrect statement of law. The trial court granted the motion in part, but allowed Carlson to testify as to his understanding of the applicable standard of proof.

The trial court rejected ...

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 pretrial detainee at a Puerto Rico state prison. The prison did not separate prisoners according to their safety needs and the security risks they posed.

As Calderon lay in bed, four other prisoners threw a blanket over his face, held him by force and threatened to kill him if he said anything. They proceeded to sodomize him for approximately a half an hour to an hour. No guards intervened. Following the attack, Calderon could not move and remained in his bed until he was taken to the hospital. The criminal charges against him were later dismissed and he was released.

Calderon and his parents brought suit against prison officials. Defendants moved to dismiss the action pursuant to F.R.C.P. 12(b)(6) for failure to state a claim for relief. The district court granted defendants' motion and plaintiffs appealed.

The First Circuit found "at the outset that the ...

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 court also held that the State had ten years to seek the collection of fines.

On October 24, 2000, the Whatcom County District Court ordered that Virginia Smith be held in jail on "pay or stay" status for failing to pay fines that the court had levied against her for 1993 and 1995 driving offenses. The court granted credit toward the fines of $40 per day and set bail at $1,175, the unpaid amount of Smith's fines.

Smith petitioned the Superior Court for a writ of habeas corpus, alleging that her restraint was unlawful because: (1) the district court's jurisdiction over the two convictions expired after two years; and (2) the district court did not first find that Smith was able but unwilling to pay her fines. The Superior court released Smith pending its decision, and ultimately granted the writ, concluding that the district court lacked jurisdiction ...

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 sued guards and staff at the Pennsylvania State Correction Facility at Frackville, PA under 42 U.S.C. § 1983, claiming cruel and unusual punishment in violation of the Eighth Amendment when six guards handcuffed and brutally beat him while one more guard watched, but did not intervene. The U.S. District Court (E.D. PA) had granted summary judgment on the Eighth Amendment claims. It had also dismissed a concurrent due process claim for retaliatory ad seg placement because Smith's claim of a liberty deprivation, without implicating some other constitutional right, failed the hurdle set forth in Sandin v. Connor, 515 US 472, 486. The Court of Appeals affirmed the due process claim dismissal, but delved into the nature of the factual allegations of the Eighth Amendment claims and concluded that the district court had erred by not ordering a trial to develop the facts.

Carl Smith had had ...

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 education programs nationwide in state and federal prisons and in local jails.

The BJS found that about 40% of all State prisoners have neither a high school diploma nor a General Educational Development (GED) certificate despite the fact that 9 out of 10 State prisons, all Federal prisons, and 6 of 10 jails provide high school or GED programming. Twenty-six percent of State prisoners completed the GED in prison, as did about 23% of Federal prisoners; however, literacy levels were not studied.

The report stated that U.S. prison populations are seriously undereducated compared to the general U.S. non-incarcerated population. State, Federal, and jail prisoners fail to complete high school or a GED program at more than twice the rate of the general population. College or post-secondary vocational education participation was much lower. The report, however, fails to note that prisons, especially State prisons, have drastically slashed, or even ...

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 right to have their motion for a bench warrant or petition for a WHCAT ruled on prior to the hearing for which the bench warrant or WHCAT is requested. In making the ruling, the court must balance the interests of the State and the prisoner rather than arbitrarily denying the request.

The Texas Attorney General filed a petition to establish the parent-child relationship between three minor children and Zeb Lee Thompson, a Texas state prisoner. Thompson filed a petition for WHCAT requesting to be present at all hearings. Without ruling on Thompson's petition, the trial court held a hearing and entered an order establishing the parent-child relationship, ordering Thompson to pay current and retroactive child support, and setting visitation. Thompson appealed.

In a similar case, the Texas Department of Protective and Regulatory Services sought termination of a female Texas prisoner's parental rights after her probation was revoked. 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 males. The court thus upheld the district court's dismissal of a gay prisoner's equal protection claim on grounds of failing to state a claim upon which relief could be granted.

Daniel L. Veney is an openly gay prisoner at Riverside Regional Jail in Hopewell, Virgina - a facility housing both male and female prisoners in double-occupancy cells. His complaint was that as a male homosexual, he was being treated disparately from male heterosexuals - as well as female homosexuals - because only male homosexuals were singled out for mandatory single-celled housing. After exhausting administrative remedies, Veney sued Lt. T. V. Wyche and Superintendent Darnley R. Hodge under 42 U.S.C. § 1983 alleging that his constitutional right to equal protection of the law was thus violated.

The district court (USDC, ED Va.) dismissed the complaint on grounds that Veney had not stated a claim upon which relief may be granted, citing ...

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 of Criminal Justice-Institutional Division (TDCJ) and TDCJ guards Matthew Cheatham and Gary Stevens, under 42 U.S.C. § 1983, in state court. He alleged the guards' seizure of his property without compensation violated due process clauses of the Texas and U.S. constitutions and that he was denied his right to compensation under Texas Gov't Code § 501.007. The trial court dismissed the action. Kleven appealed.

The court of appeals held that the trial court erred in granting summary judgment on immunity grounds and failed to address Kleven's theory of liability (lack of meaningful administrative remedies for compensation for loss of property). The court of appeals reversed the case and returned it to the trial court for further proceedings. Kleven v. TDCJ, 35 S.W.3d 112 (Tex.App. Dist.6 2000).

After remand, Kleven amended his petition, alleging retaliation against him for pursuing this action. Kleven filed ...

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 "that in the summer of 1999, he developed an addiction to crack cocaine. Had what he described as an `idiotic two months,' and took a leave of absence from his job. He began calling Dina at work eighty to one hundred times per day. Dina, however, refused his calls, so Roger was unable to speak with her about Q.L.R."

In September 1999, Dina obtained a temporary protection order, based upon Roger's numerous telephone calls. The order prohibited Roger from contacting Dina or Q.L.R. and granted Dina temporary custody of the child.

In November 1999, while the order was still in effect, Roger approached Dina outside Q.L.R.'s daycare center, "forced his way into her car and drove around Las Vegas with Dina and Q.L.R. for approximately six hours." He did not physically harm Q.L.R. and at one point stopped ...

$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 a §1983 class action challenging numerous conditions of confinement at the jail. Webb prevailed on most of his claims on the merits and was awarded $244,308.00 in attorney's fees for this work. See: Webb v. Ada County, 145 F.3d 1343 (9th Cir. 1998).

Webb's attorneys performed post-judgment work relative to enforcing the court's orders and the terms of the consent decree. Finding that Webb was partially successful in this post-judgment litigation, the court awarded $9,495.00 in attorney fees. On appeal, the Court affirmed but remanded so the PLRA's fee cap could be applied to work performed after the effective date of the PLRA (April 26, 1996). See: Webb v. Ada County, 195 F.3d 524 (9th Cir. 1999). (PLN, March 2001).

On remand, the district court rejected the County's argument that fees could not be awarded under the PLRA for ...

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 have a new tool for the task. America Without the Death Penalty, unlike many books written by academics and published by university presses, enlightens much and bores little.

The four authors, sociology professors in various universities, organized a study of nine states that voluntarily abolished the death penalty (Michigan, Wisconsin, Maine, Minnesota, North Dakota, Hawaii, Alaska, Iowa, and West Virginia). The authors sought answers to six empirical research questions: (1) the relationship between murder rates, execution history, and death penalty abolition; (2) state economies and the death penalty; (3) public sentiment and the death penalty; (4) the role of social, political, and economic elites in abolishing the death penalty; (5) the relationship between the mass media and death penalty abolition; and (6) the relationship between population diversity and death penalty abolition. The book also touches briefly on death penalty abolition in Washington, D.C. and in three states Massachusetts, Rhode ...

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 mandamus. The particulars of that 2001 petition were unreported. His prison account contained 24 cents, so he asked for leave to proceed without paying the filing fee. The trial court found that Smith earned $24 per month at his prison job and ordered him to pay a partial filing fee of $48 from his future prison pay. Smith appealed to the State Supreme Court.

The Oklahoma Supreme Court found the order directing Smith to pay the partial filing fee to be appropriate. However, the State Supreme Court held that the partial filing fee could not be collected in a manner which would completely deplete Smith's prison account, citing Foust v. Pearman, 1992 OK 135, 850 P.2d 1097. See: Smith v. Moore, 50 P.3d 215 (Okla. 2002).

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 video only visits as the "most draconian policy" implemented by his predecessor Rob Perry.

Williams' actions are applauded by prison activists across the state. Tilda Sosaya is a prison-rights activist who served on a Corrections Department transition team with Williams. The team studied various aspects of prison life prior to the swearing in of Govenor Bill Richardson on January 1, 2003, Sosaya also has a son in the maximum-security North Facility of the prison.

"I thought (Williams) would probably do this, but I didn't know he'd do it so soon," said Sosaya. "I don't think Joe Williams could have taken any other measure that would have had such a widespread affect. It's the first time I've seen my son face to face in two years."

Under the insensitive policy of Perry, families of certain prisoners would only be allowed to visit using a small TV ...

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 the 10% surcharge imposed by section 16-954(C). He challenged the surcharge in the Maricopa County Superior Court, contending that it violated his right to freedom of expression under the 1st Amendment to the U.S. Constitution. This was so, May claimed, as the surcharge could be used to support a political candidate whose views he opposed, thereby forcing him to support the propagation of those views.

The superior court upheld the statute, but the appellate court reversed finding that the surcharge violated May's 1st Amendment right to freedom of expression. The state attorney general appealed to the state supreme court.

The supreme court found that the surcharge did not burden First Amendment freedom of expression rights because "there is no expressive content inherent in paying a traffic fine." Hence, the appellate court was reversed and the statute upheld. See: May v. McNally, 55 P.3d 768 (Ariz. 2002).

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. § 1983, alleging Texas Department of Criminal Justice (TDCJ) prison officials retaliated against him for filing suit in federal court.

Initially, Vacca sought to file a suit in federal court alleging retaliation by TDCJ guards. As required by the PLRA, Vacca sought to send the federal court a trust fund printout to support his motion to proceed in forma pauperis. Instead of providing the requested printout, guard Tina Range allegedly required Vacca to allow her to examine the suit he was filing. Two days later, Vacca was given a job change. Nineteen days later, guards Ronald L. Farrington and Jonathan R. Rayburn allegedly falsified a disciplinary infraction by Farrington dropping a $100 bill in front of Vacca during a strip search. Captain M. Glass convicted Vacca of the disciplinary infraction and assessed fifteen days solitary confinement (during which Vacca received no hot meals) after allegedly hearing contradictory testimony from Farrington and ...

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 distress, could support an Eighth Amendment violation of deliberate indifference to medical care for the neighbors.

Frank Clement, Arturo Chavez and Larry Caballero, prisoners at California's maximum security Pelican Bay State Prison, sued prison officials under 42 U.S.C. § 1983 in response to guards' use of pepper spray in their cell block against others without providing protection for them. The two claims were (1) for using excessive force against the combatants by spraying a second time after the fight had allegedly subsided, and (2) for being deliberately indifferent to the medical needs of neighboring prisoners hurt by drifting spray.

The principal legal defense raised was qualified immunity. This requires a two-step inquiry (see Saucier v. Katz, 533 US 194 (2001) [PLN, June, 2002]. If the facts show no constitutional violation, the inquiry ends. Then, if the constitutional right was clearly established, the court must determine if the law ...

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, a Texas state prisoner, filed a medical negligence suit in state court alleging that a nurse and two physician assistants at the TDCJ-ID Telford Unit were negligent in failing to request x-rays of his fractured hand and failing to provide pain medication. Perry alleged pain and suffering and permanent disfigurement due to an improperly healed hand.

Defendants filed a motion to dismiss based on Perry's failure to file an expert report within 180-days of filing suit as required by Tex.Rev.Civ.Stat. art. 4590i, § 13.01. The trial court dismissed the suit. Perry filed a motion for new trial requesting a 30-day grace period in which to file the report. The motion was overruled by operation of law. Perry appealed, on the basis that Article 4590i, § 13.01 is unconstitutional and his motion for new trial should have been granted.

The court of appeals held that the statute ...

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 filed suit over excessive heat on death row. The suit is pending. Claiming a shortage of funds, the Alabama Department of Corrections would not provide the fans nor would they allow prisoners to purchase their own. Bryan Stevenson, director of the Alabama Capital Representation Resource Center provided $2,635 to purchase 170 fans.

California: On April 27, 2003, two unidentified 15 year old boys caused a lockdown at the Folsom State Prison and two local jails. Imitating the MTV show Jackass, one of the boys wore an orange jumpsuit purchased at a flea market, jumped out of a car wearing handcuffs while the other youth video taped him. A passing motorist promptly alerted the forces of law and order who quickly mobilized tracking dogs, patrol cars and a helicopter and locked down the Folsom prison and the Placer and Sacramento county jails in order to locate the young filmmakers. Placer ...

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 state now has. The poll found that on average nearly one-quarter of the United States' convicted sex offenders cannot be located at any given time.

In January 2003, the Associated Press reported that California had lost track of at least 44 percent (about 33,000) sex offenders required to register under the state's sex offender registration laws. The report prompted Parents for Megan's Law, a nationwide child advocacy group, to conduct an informal telephone poll in all 50 states to determine the accuracy of their sex offender registries. Nineteen states, including New York and Texas, admitted that they either did not know or could not track the number of sex offenders who failed to register. The survey further revealed that in the states tracking the accuracy of their registries, the average rate of sex offenders failing to register properly or at all was about 24 percent. Florida, at ...


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