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Prisoner Education Guide

Prison Legal News: March, 2003

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Volume 14, Number 3

In this issue:

  1. Georgia Parole Corruption Deepens (p 1)
  2. From the Editor (p 4)
  3. Louisiana Prisoners May Access Savings Funds Exceeding $250 (p 5)
  4. Suits Against Individual State Employees Available Under ADA (p 6)
  5. California Three-Year Lockdown of "Southern Hispanics" Held Unconstitutional (p 6)
  6. Thaddeus-X Standard Retroactive Except for Qualified Immunity Defense (p 7)
  7. Iowa Guards Fired for Beating Prisoner (p 7)
  8. Gender and Incarceration: How Men and Women Experience Life Behind Bars (p 8)
  9. Criminal Guards and Escaping Prisoners in Texas (p 10)
  10. Maryland Pays $700,000 to Settle Suit Over Murder Committed by Parolee in Colorado (p 11)
  11. Texas Eliminates Habeas Corpus Following Probation Revocation (p 12)
  12. Virginia Law Repeals Phone Rate Ruling (p 12)
  13. $2.5 Million Verdict in California Medical Neglect Case (p 13)
  14. Vehicle Forfeited for Smuggling Drugs into Arizona Prison (p 14)
  15. Tribal Funds Exempt from Washington LFO Seizures (p 14)
  16. Florida's Private Food Service Demonstrates that Profit Overrides Sanitary Practice (p 15)
  17. Habeas Hints: Standard of Review (p 16)
  18. Drug Addiction Disability Cannot Be Used to Deny Parole (p 18)
  19. California Parole Official Demoted (p 18)
  20. Disclosure of Transsexual, HIV+ Status States Eighth Amendment Claim (p 19)
  21. Class Action Filed on Washington DOC Seizure of Tribal Funds (p 19)
  22. Habeas Corpus Sole Remedy for BOP Sentence Reduction (p 20)
  23. $90,169 Plus Injunction in California Retaliation Suit (p 20)
  24. Hawaii Prison Doctor's Retaliation Judgment Upheld (p 21)
  25. Prisoner Phone Recordings not Exempt from FOIA Disclosure (p 22)
  26. Veteran's Benefits Deposited to Prisoner Trust Account Cannot Be Attached (p 22)
  27. Denial of Reporter's Access to Jail Unconstitutional (p 23)
  28. North Carolina DOC Supervisor Implicated in Scandal (p 23)
  29. Medical Claim Accrues on Last Date of Treatment Denial (p 24)
  30. Court Must Notice Pro Se Prisoner of Resonse Rights Before Granting Summary Judgment (p 24)
  31. Punitive Damages Are Prospective Relief Under PLRA (p 25)
  32. New York County Liable for Jail Strip Searches (p 26)
  33. Ohio Prison Officials Cannot Alter Jail-Time Credit Award (p 26)
  34. Sandin Applied to Wisconsin Sexual Offender Civil Commitment (p 27)
  35. Release of Medical Liability May Establish Deliberate Indifference (p 28)
  36. New York Jail Strip Search Policy Unconstitutional (p 28)
  37. Woman Gang Raped in Back of Jail Van (p 29)
  38. Failure to Assert Hearing Officer Bias Administratively Waives Claim on Habeas (p 29)
  39. News in Brief (p 30)
  40. Home Detainee Has Fourth Amendment Rights (p 31)
  41. New York Prisoner Awarded $411,000 in Failure to Protect Suit (p 31)
  42. BJS Releases New Recidivism Study (p 32)

Georgia Parole Corruption Deepens

A trail of corruption, greed, and cronyism has led to the indictment of a Georgia senator, the dismissal of an assistant attorney general and the resignation of six parole board members including the director and the chairman.


Van Streat was suspended from his office as state senator after he tried to have convicted murderer Ronald Gaither moved to a less secure prison facility in exchange for campaign funds. On January 8, 2002 Streat was indicted for violating his oath of office and lying about his attempt to pressure the board to relocate the state prisoner. Gaither had already escaped from prison on two previous occasions.


Streat's suspension was the first drop from the menacing storm clouds that had gathered over the parole board. Assistant Corrections Commissioner Joe Ferrero says that board Chairman Walter Ray and board member Bobby Whitworth came to his office on August 10, 1999 to support Streat's request.


Ominous thunderheads first began to gather in July 2001 when Whitworth and Ray were accused of accepting thousands of dollars for lobbying on behalf of private prison interests. The torrent that followed submerged the board in a flood of scandal and corruption.


Money Trail


For over three ...

From the Editor

I am pleased to announce that The Celling of America: An Inside Look at the U.S. Prison Industry, PLN's first book which was published in 1998, is now available in Spanish. El Encarcelamiento de America was published last summer in Spain by Editorial Virus, a progressive publisher in Barcelona. Copies of the book are finally available for distribution in the US. Over the years we have received requests from Spanish speaking readers for books or materials in Spanish. While PLN lacks the resources to translate the magazine, the translation of the Celling of America is an important milestone, both because it helps educate people overseas about the American prison system and also because it makes that information accessible to non English reading Hispanics in this country. Ordering information for the English and Spanish edition alike is on page 33 of this issue of PLN.


PLN's second book, Prison Nation: The Warehousing of America's Poor is being well received by readers. We hope it too will also be made available in other countries. Prison Nation is the first book I am aware of that examines the correlation between mass imprisonment and the provision of counsel for indigent ...

Louisiana Prisoners May Access Savings Funds Exceeding $250

by Matthew T. Clarke


The Supreme Court of Louisiana has held that all state prisoners have a statutory right to transfer savings accounts funds exceeding $250 to their drawing accounts.


Walter Burnette, a Louisiana state prisoner serving a 99-year sentence, filed a petition for judicial review in state district court after the prison system refused to allow him to transfer the savings account funds exceeding $250 to his drawing account.


Louisiana prisoner have very limited access to their savings accounts and much greater access to their drawing accounts. Prior to 1997, La.Rev.Stat. § 15:874(2) required that a prisoner's compensation be distributed equally between the savings account and drawing account. 1997 Louisiana Legislature Act 528 amended the statute to provide that "when an inmate's savings account attains a balance of at least two hundred fifty dollars, the inmate may deposit future compensation in either his savings account or his personal drawing account."


Burnette believed that this gave him statutory authority to transfer savings account funds in excess of $250 earned prior to 1997 to his drawing account. Bolstering his argument, Burnette noted that Department Regulation No. B-09-003(6) (A) (3) allows prisoners with a life sentence ...

Suits Against Individual State Employees Available Under ADA

Suits Against Individual State Employees Available under ADA


The U.S. Court of Appeals for the Eighth Circuit reversed two separate district courts and ruled that under Title I of the Americans with Disabilities Act (ADA), state employees can be sued in their official capacities for injunctive relief. Linda Gibson, who works for the Arkansas Department of Corrections, filed suit in U.S. District Court alleging that her employer discriminated against her because of a disability arising from an on-the-job injury. Separately, Larry Brown suffered back injuries while working for the Arkansas State Police. He sued his former-employer in U.S. District Court for failure to accommodate his alleged injury.


Neither district court examined the merits of plaintiff's claims but rather dismissed the suits on the theory that Congress did not intend for such claims to be adjudicated in the district courts when and because it created the ADA's remedial scheme for settling such claims.


In a consolidated appeal, the Eighth Circuit disagreed with the district courts and held that pursuant to Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct. 955 (2001), the ADA's remedial scheme was not comprehensive.


In denying Eleventh ...

California Three-Year Lockdown of "Southern Hispanics" Held Unconstitutional

California Three-Year Lockdown of "Southern Hispanics" Held Unconstitutional

by Marvin Mentor


A Del Monte County, California superior court ruled on December 10, 2002 that a three year lockdown of "Southern Hispanics" at maximum security Pelican Bay State Prison (PBSP) was unconstitutional because it discriminated on the basis of ethnicity. The court ordered PBSP Warden Joe McGrath to speed up the process of releasing non-problematic prisoners from lockdown - irrespective of the ethnicity they identified with - by delivering a report to the court within 90 days detailing how this would be accomplished. And in a far-reaching effort to reverse prison policies that further a "culture of separation," the habeas court ordered McGrath to produce an additional plan within 120 days showing how he would improve race relations at PBSP.


Aaron Escalera was one of hundreds of Southern Hispanics locked down continuously since a racially motivated riot at PBSP in February, 2000. Although the riot occurred in "B" Facility -between Southern Hispanic and Black prisoners - Escalera and all other Southern Hispanics in "A" Facility were also slammed. Escalera's complaint was that they and others in "A" Facility, who never participated in the "B" Facility riot, were being selectively punished solely on the ...

Thaddeus-X Standard Retroactive Except for Qualified Immunity Defense

Thaddeus-X Standard Retroactive Except For Qualified Immunity Defense

by Bob Williams


A federal district court in Michigan has held that the Thaddeus-X standard, rather than the "shocks the conscience" standard, is applicable to claims of guard retaliation for prisoners exercising First Amendment rights even when the claims arose prior to ...

Iowa Guards Fired for Beating Prisoner

Iowa Guards Fired For Beating Prisoner


On July 24, 2002, Sheriff David Armack fired five guards, including a supervisor, at the Woodward County Jail in Sioux City, Iowa, in response to a June 10, 2002, videotaped beating of a prisoner.


Stanley Munger, attorney for four of the five guards, identified them as Eric Davis, 22; Joe Ramirez, 26; Mike Sweum, 29; and Jason Bunch, 30. The fifth guard, who was also a supervisor, was not identified.


The 15 minute video, recorded by a jail camera, showed the guards repeatedly kicking, punching and slamming prisoner Benjamin Freenor's head into a counter while booking him.


Freenor's attorney, Glen Metcalf, is seeking restitution for his client. Metcalf is unsure if a lawsuit will be necessary but "Mr. Freenor deserves compensation for what happened to him," he said.


Criminal charges against the five guards are also being considered. Woodbury County Attorney Tom Mullin has asked the Iowa Division of Criminal Investigation for assistance in the probe.


Source: The Des Moines Register

Gender and Incarceration: How Men and Women Experience Life Behind Bars

Gender and Incarceration: How Men and Women
Experience Life Behind Bars

Reviews by Silja J.A. Talvi


Prison Masculinities, edited by Don Sabo, Terry A. Kupers, and Willie London. Temple University Press, Philadelphia: 2001.


Counseling Female Offenders and Victims: A Strengths-Restorative Approach, Katherine van Wormer, Springer Publishing Company, New York: 2001.


The new anthology, Prison Masculinities, brings the stress-inducing and often dangerous atmosphere in men's prisons to the written page. Real, raw, and uncensored, Prison Masculinities has already become a crucial addition to the list of prison-related books which seek to expand our understanding of the circumstances surrounding the exorbitant rates of nationwide incarceration, as well as the complex phenomenon of male violence and sexuality in prison.


The theme that binds this impressive collection together is one which has been largely absent from existing analysis of the U.S. prison system: an examination of the role of prison as a patriarchal and hyper-masculine institution, and the role played by prisons in reproducing destructive forms of masculinity.


Edited by D'Youville College social sciences professor Don Sabo, psychiatrist Terry A. Kupers, and prisoner/writer Willie London, Prison Masculinities brings together 40 thought-provoking essays and poems written by prisoners, academicians and ...

Criminal Guards and Escaping Prisoners in Texas

On July 21, 2002, Lt. Rick McCullough was arrested for assaulting two female guards at the Riverside State Prison for women in the central Texas town of Gatesville. McCullough, 41, a Texas prison guard assigned to the nearby Woodman State Jail for women, was held on $25,000 bond after being charged with two counts of assault causing bodily injury to a public servant.


Witnesses told police that McCullough attacked Capt. Nada Ragsdale and guard Lisa Sypert. Both women were taken to a local hospital where they were treated for their injuries.


"We believe there was some sort of argument over the lieutenant's key," said a prison spokesman. "He apparently could not find his key and was trying to get an additional one when the argument began."


Ragsdale sustained injuries to her eyes and choke marks around her neck. Sypert suffered a cracked nose, contusions of the left cheek, and scratches to her left elbow.


Separately, a series of recent guard-on-prisoner sexual assaults was reported by Kelly Weeks, a special prosecutor for Texas' Office of the Attorney General. In August 2002, Lonzo McShan III, a guard at the Walls State Prison in Huntsville, was arrested and charged with sexually ...

Maryland Pays $700,000 to Settle Suit Over Murder Committed by Parolee in Colorado

In May 2002, the State of Maryland agreed to pay $700,000 to a Denver woman whose daughter was murdered by a parolee released from a Maryland prison and sent to a drug treatment center in Colorado.


The suit, which was brought following the February 1999 slaying of 24-year-old Peyton ...

Texas Eliminates Habeas Corpus Following Probation Revocation

The Texas Court of Criminal Appeals (TCCA) has eliminated the habeas corpus exception to the prohibition against attacking the original conviction after revocation of probation.


Timothy Lee Jordan, a Texas state prisoner, was convicted of theft and robbery and placed on probation. Later his probation was revoked. Jordan then filed a motion for new trial claiming, among other things, that his pleas in both original convictions were involuntary. The trial court held a hearing, with live testimony, then denied the motions. Jordan appealed.


The court of appeals refused to address the errors raised by Jordan, holding that Jordan should have raised the issues in an appeal of the original imposition of probation. Jordan petitioned for discretionary review.


The TCCA held that it had made a mistake in previously allowing revoked probationers to challenge their original convictions using a "functional" writ of habeas corpus that invokes the trial court's authority to issue such a writ. Such a "functional" habeas corpus action did not comply with the formal requirements of Article 11.14, Texas Code of Criminal Procedure (TCCP) and did not promote judicial economy, as originally expected.


Therefore, the TCCA overruled Carter v. State, 641 S.W.2d 557. (Texas ...

Virginia Law Repeals Phone Rate Ruling

Matthew T. Clarke


Effective July 1, 2002, the Virginia legislature has enacted a law specifically designed to undercut a favorable ruling on prison phone rates by the State Corporation Commission (SCC).


Robert Lee Jones, a Virginia state prisoner, filed a complaint with the SCC concerning the rates charged consumers for collect telephone calls from prisoners at Virginia state prisons. The Virginia Chapter of Citizens United for the Reform of Errants (CURE) joined the suit by asking the SCC to examine the rates charged to people receiving collect telephone calls from Virginia Department of Corrections (DOC) prisoners. The Inmate Telephone System (ITS) is run exclusively by MCI WORLDCOM Network Services of Virginia (MCI) and charges the receivers of the intrastate phone calls the same rate as the public pays for operator-assisted collect calls in an emergency: a surcharge of $2.25 plus up to 37¢ per minute. The call automatically disconnects after 15 minutes and another $2.25 is charged if it is reinitiated.


On August 22, 2001, the SCC issued a Final Order overruling MCI's challenge to their jurisdiction under § 56-481.1 of the Code of Virginia and holding that MCI ITS rates were not competitive. § 56-481.1 places ...

$2.5 Million Verdict in California Medical Neglect Case

On May 8, 2002, a California superior court jury awarded $2.5 million in damages for negligent medical care to a severely diabetic state prisoner, who, debilitated from insulin shock, broke his neck in a fall sustained while trying to run to the prison medical clinic.


David Padilla was incarcerated ...

Vehicle Forfeited for Smuggling Drugs into Arizona Prison

The Arizona Court of Appeals upheld the forfeiture of a vehicle involved in smuggling drugs into prison.


Arizona prisoner Dennis Day convinced his mother Teruko Simmons, to smuggle three grams of marijuana into the prison for him. Simmons drove her 1996 Nissan Sentra to a hardware store parking lot where someone gave her the marijuana. Several days later she smuggled it into the prison and gave it to her son during visiting hours. Prison officials later found the marijuana concealed in Day's shoes.


Simmons pled guilty to facilitation to promote prison contraband. Several months later the state brought a forfeiture action against her Nissan. The trial court granted Simmons' cross-motion for summary judgment and the state appealed.


The Court of Appeals concluded that the trial court erred in concluding that Simmons' vehicle was not subject to forfeiture under Arizona's racketeering statutes. In doing so, the court held that "as long as a criminal enterprise involving racketeering ultimately has the objective of financial gain ...any property `knowingly used to facilitate or advance that enterprise is subject to forfeiture, regardless of the objectives of the individuals partici- pants.'"


The court reversed "the trial court's grant of summary judgment in ...

Tribal Funds Exempt from Washington LFO Seizures

In an unpublished order, a federal court in Washington granted a Native American prisoner's motion for summary judgment on the issue of liability of prison officials in seizing monthly tribal per capita allotments from his prison account to satisfy court-ordered legal financial obligations (LFOs) pursuant to RCW 71.11.020. The court held that those funds are exempt from attachment under 25 U.S.C. § 410, and that RCW 72.11.020 is preempted by § 410.


Washington prisoner Kyle Corpuz, a member of the Yakima Indian Nation, received monthly per capita shares of tribal funds held in trust by the United States. Although those funds are protected by 25 U.S.C. § 410 (1906), prison officials seized a total of $625.52 from Corpuz's prison account to satisfy his LFOs under RCW 72.11.020.


Corpuz filed a pro se complaint seeking compensatory and punitive damages, and injunctive relief. The court appointed George A. Critchlow and legal intern Justin Lee of University Legal Assistance to represent Corpuz.


On May 11, 2001, the court issued an order granting plaintiff's motion for summary judgment on the issue of liability. At the outset, the court found that the decision in ...

Florida's Private Food Service Demonstrates that Profit Overrides Sanitary Practice

by David M. Reutter


In July 2001, the Florida Department of Corrections (FDOC) entered into a five-year contract with Philadelphia's cost-conscious Aramark Corporation to feed prisoners at 126 of the 133 prisons in Florida. The contract is projected to reduce FDOC's cost of feeding its prisoners from $80.2 million in 2000-2001 to $72.2 million in the fiscal year that ended July 1.


Aramark provides meals at a daily cost of $2.32 per prisoner, and it will earn an estimated $58 million in its first year of the contract. This profit earning is facilitated, in part, by Aramark's use of prisoner slave labor. Prior to the contract with Aramark, FDOC had required its food service contractors to pay prisoners. The biggest profit earner, however, comes upon the altar by sacrifice of sanitary practices and shorting menu ingredients.


When Aramark first entered Florida's prisons it initially served well-proportioned tasty trays. Then the weaning began. As time went on, Aramark began to cut corners in the amount of ingredients it used, and the amount it served prisoners. Aramark regularly fails to cook enough food; often they run out with 200 to 300 prisoners waiting to be ...

Habeas Hints: Standard of Review

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


STANDARD OF REVIEW


One of the most important and challenging aspects of habeas corpus practice is identifying and satisfying the "standard of review" (burden of proof) which applies to the claims alleged in the habeas corpus petition. In this column, I define the principal different standards of review that come into play at various points throughout the criminal process, and I provide some "habeas hints" for how to deal with these standards most effectively on habeas corpus.


STANDARDS OF REVIEW _ EASIEST TO HARDEST


Ø Presumption of innocence.


A defendant facing trial on a criminal charge is presumed innocent, and the prosecution has to prove the defendant guilty beyond a reasonable doubt. Proof beyond a reasonable doubt equates to proof to a near certainty that the defendant is guilty as charged. This is the most demanding standard of proof of all in the American justice system, and it affords powerful ...

Drug Addiction Disability Cannot Be Used to Deny Parole

by John E. Dannenberg


The Ninth Circuit US Court of Appeals held that California life prisoners could not be denied parole because of a drug addition disability that fell within the reach of the Americans with Disabilities Act (ADA).


Charles Thompson and Stephen Bogovich, serving 15-life terms for second degree murder, sued Governor Gray Davis, state corrections and state parole officials under the ADA, 42 U.S.C. § 12102(2)(B,C) [1994], seeking prospective injunctive relief against the CA Board of Prison Terms (BPT), alleging the BPT followed an unwritten policy of automatically denying parole to lifers who had substance abuse histories.


The essence of their novel claim was that such histories amounted to disabilities under the ADA, and that parole proceedings, including substantive decision making processes, constituted an "activity of a public entity" protected through the ADA.


In their initial complaint in 1999, Thompson and Bogovich were rebuffed by the US District Court on grounds that their ADA complaint was really a 42 U.S.C. § 1983 civil rights complaint, and that a § 1983 complaint could not be used to attack the fact or duration of confinement. Therefore the court remanded them to exhaust state habeas corpus remedies ...

California Parole Official Demoted

The vice chairman of the California parole board, Jones Moore, was recently demoted after board Chairwoman Carol Daly received what she termed "an unacceptable number of complaints" about Moore's behavior from numerous attorneys representing prisoners at their parole hearings.


In an August 27, 2002, letter to State Senate leader John Burton, Daly referred to Moore's "reputation as having an arrogant demeanor and questionable work ethic" as being part of the reason he was demoted. However, Daly further stated that she "clearly does not acknowledge conduct rising to a level of concern." The LA Times reported several instances of Moore's disparaging remarks and unprofessional behavior during hearings.


Attorney Stephen Pearcy claims that in a January, 2002, parole hearing Moore was reviewing other files as Pearcy was presenting his case as to why his client, who had spent the last 23 years in prison, should be paroled. When Pearcy complained, Moore responded that "he was listening to every word."


"It's like a juror reading a newspaper while you're making your core legal argument in court," said Pearcy.


In June, a female attorney representing a prisoner at Folsom State prison commented that the hearing room was stuffy and ...

Disclosure of Transsexual, HIV+ Status States Eighth Amendment Claim

On the second appeal from a trial court's rejection of a prisoner's Eighth Amendment claims, the U.S. Court of Appeals for the Second Circuit ruled in favor of the prisoner, vacated the trial court's grant of summary judgment for defendants, and remanded.


Dana D'Villa, who had undergone sex change operations in the 1970s, filed a lawsuit in U.S. District Court under 42 U.S.C. §1983 complaining that in December 1991, while a prisoner at New York's Albion Correctional Facility, prison guard Jeffrey Lynch disclosed to other prisoners and staff that she was an HIV+ transsexual. Following Lynch's comment, D'Villa testified, she became the target of harassment by guards and prisoners and was twice attacked where she suffered physical injuries. On those grounds, D'Villa claimed that defendants violated her constitutional right to privacy and subjected her to cruel and unusual punishment in violation of the Eighth Amendment.


The district court dismissed D'Villa's Eighth Amendment claims on grounds of qualified immunity and, on the privacy claims, a jury returned a verdict in favor of Lynch and against his supervisor, Sunny Schriber, for her failure to properly train him. The ...

Class Action Filed on Washington DOC Seizure of Tribal Funds

On March 29, 2002, a class action suit was filed in a Washington federal court on behalf of all Native American prisoners in the Washington prison system who have had tribal trust funds seized by the Washington Department of Corrections (WDOC) to satisfy court-ordered legal financial obligations (LFOs) pursuant to RCW 72.11.020.


The complaint names WDOC Secretary Joseph Lehman as a defendant, alleging: "In May 2001, Defendant Lehman lost on a motion for summary judgment on the issue of liability for making the same unlawful seizures at issue in this case." See: Corpuz v. Lehman, in this issue of PLN. The complaint alleges that only Corpuz "and no other Native American prisoner, has been refunded unlawfully seized trust money disbursements."


Plaintiff alleges that "[t]he seizure of tribal members' funds began and continued after the decision in Wright v.. Riveland, No. C95-5381FDB (WD Wash. October 22, 1997) (unpublished Order granting summary judgment, in part, to the plaintiffs), aff'd in part, rev `don other grounds, 219 F.3d 905 (9th Cir. 2000), in which WDOC was ordered to discontinue seizing portions of the same tribal disbursements involved here, and to refund all seizures made from these protected monies ...

Habeas Corpus Sole Remedy for BOP Sentence Reduction

Michael Bourke was convicted in federal court of possessing a machine gun and a controlled substance. He completed a drug treatment program in prison and then sought a one year reduction in sentence pursuant to 18 U.S.C. § 3621(e)(2)(B). The Bureau of Prisons (BOP) denied the reduction claiming possession of a machine gun is a crime of violence. Violent offenders are not eligible for the sentence reductions.


Bourke filed a petition for mandamus in district court in the District of Columbia to order the BOP to consider him for early release. The district court granted summary judgment in Bourke's favor, holding that possession of a machine gun is not a crime of violence for purposes of § 3621. The court of appeals reversed and remanded.


The appeals court held that habeas corpus is the exclusive remedy for federal prisoners to bring "any claim that would have a `probabilistic impact' upon the duration of his custody." In doing so, the court relied on Razzoli v. Federal BOP, 230 F.3d 371 (DC Cir. 2000) and Chatman-Bey v. Thornburgh, 864 F.2d 804 (DC Cir. 1988). The court noted that Bourke's success on his claim would not ...

$90,169 Plus Injunction in California Retaliation Suit

by John E. Dannenberg


In a jailhouse lawyer retaliation suit where both expungement of prison records and $9,000 in damages were awarded, the US District Court (E.D. Calif.) awarded $2,000 for expenses, $8,447 in costs and $70,812 in attorney fees because the Prison Litigation Reform ...

Hawaii Prison Doctor's Retaliation Judgment Upheld

The Ninth Circuit US Court of Appeals affirmed the USDC (D. Hawaii) judgment [PLN, June 2001: "Prison Doctor Wins $654,471 In Retaliation Suit"] based on First Amendment violations, expressly noting that in such retaliation suits, "mixed-motive" analysis applies regardless of whether the plaintiff relies on direct or circumstantial evidence ...

Prisoner Phone Recordings not Exempt from FOIA Disclosure

Prisoner Phone Recordings Not Exempt From FOIA Disclosure


The Court of Appeals for the DC Circuit has held that a prisoner is entitled under the Freedom of Information Act (FOIA) to recordings of his properly monitored phone conversations with his attorney and that all government claims of FOIA exemptions must be
raised simultaneously.


Gregory Smith was incarcerated in a federal prison when he intentionally selected a phone monitored pursuant to Bureau of Prisons (BOP) policy to call his attorney, though unmonitored phones were available for this purpose. During the conversation, Smith's attorney admitted his representation of Smith was below constitutional standards giving Smith ammunition for an ineffective assistance of counsel post-conviction claim.


Smith then sought copies of the phone recordings from the BOP under the FOIA, 5 U.S.C. §552, and was denied based on "Exemption 3 of the FOIA because Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §2510 et seq., bars their disclosure."
On judicial review, the federal district court granted summary judgment for the BOP.


On appeal, the Court found the case turned on the interpretation of Title III which makes it unlawful for a person to "intercept ...

Veteran's Benefits Deposited to Prisoner Trust Account Cannot Be Attached

The Ninth Circuit US Court of Appeals held that veterans benefit funds deposited to a state prisoner's prison trust account could not be attached by prison authorities, even to pay an overdraft they accorded him for dental appliances he had earlier agreed to pay for.


Tarza Nelson brought a 42 U.S.C. § 1983 civil rights action complaining that California prison officials had violated a federal statute, 38 U.S.C. § 5301(a), by placing a hold on his prison trust account to reimburse the state for $193.20 Nelson had incurred by ordering, and signing trust withdrawal authorizations for, copies of his medical records and for dental appliances.


The US District Court (S.D. Cal.) had agreed with the statutory violation allegation, but nonetheless dismissed the complaint on qualified immunity grounds. On appeal, the Ninth Circuit ruled in a case of first impression as to 38 U.S.C. § 5301(a). The court relied upon a comparison with similar protection of Social Security benefits accorded under 42 U.S.C. § 407(a), finding its "reach" essentially the same.


The court found that although Nelson had "consented" to the underfunded trust withdrawals, that could not be construed to infer ...

Denial of Reporter's Access to Jail Unconstitutional

An Illinois Federal District Court has granted summary judgment in favor of a reporter denied access to the Cook County Jail. Access to a legal aid program for incarcerated mothers was denied in retaliation for a previously published and unflattering article.


Tori Marlan, a reporter for the Chicago Reader, was routinely admitted to many areas of the jail and spoke freely with guards and prisoners. She was not allowed access to the strip search "Bullpen" and subsequently published an article entitled "Strip Search." The article discussed a class action suit brought by women prisoners claiming their rights were violated by the strip search policy.


Marlan next began researching an article about the Chicago Legal Aid for Incarcerated Mothers. When her requests to observe a class were denied she filed a §1983 action along with the Chicago Reader claiming retaliation for the strip search article. Both sides filed for summary judgment.


In granting summary judgment for Marlan, the Court analyzed an array of cases from many circuits and ultimately found that "the action must be sufficiently `adverse' to deter the exercise" of Marlan's rights and the selective application of the jail policy "certainly falls within this broad definition." The defendants ...

North Carolina DOC Supervisor Implicated in Scandal

The Chief of Security for the North Carolina Department of Corrections, Charles K. Stewart, allowed his friend, Oscar "Pappy" Adkins,to bilk the state out of tens of thousands of dollars for training services, alleges an internal audit report completed in June 2002. The two also filed incorrect travel expense reports, according to the audit.


Adkins contracted with the DOC to train special units, including Prison Emergency Response Teams, Hostage Negotiation Teams and the Special Operations Response Team through the community college system. State law allows the DOC to obtain this training for free. Adkins, however, billed $53,650 to the DOC as well as $52,516 to the community college system for conducting 171 classes. Adkins also recieved $15,692 in travel expenses from the DOC, according to the audit.


Stewart continued to allow the double billing even after he was apprised of the situation by other DOC personnel. "Ignoring [this information] and failing to act on [it] represented a breach of fiduciary duties," said the report.


Moreover, using information obtained from Adkins, Stewart instructed DOC personnel to figure Adkins travel to and from Stedman, NC when it should have been figured to and from Raleigh, NC. This could ...

Medical Claim Accrues on Last Date of Treatment Denial

The Seventh Circuit Court of Appeals has held that a prisoner's medical claim accrues on the last date that he was refused treatment and damages could be claimed back to the first date of refusal.


Delbert Heard was in the Illinois Cook County Jail from 1994 to 1996. Several months before his release a hernia was discovered. Despite persistent demands, medical attention was not forthcoming for months until he was finally examined by a doctor who diagnosed a ruptured hernia. The jail refused the recommended surgery.


Heard filed a §1983 complaint two years after his release from jail. The District Court dismissed the suit as outside the statute of limitations.


On appeal, the Court held that the statute of limitations and tolling rules for §1983 actions are supplied by state law. Accrual determines when the time begins to run and tolling interrupts the statute of limitations. The Court found the lower court erred in using an accrual date of when Heard discovered he had a medical problem which would be true for malpractice (which does not state an Eighth Amendment claim) but not true for an Eighth Amendment cruel and unusual punishment claim.


"Every day that they prolonged his ...

Court Must Notice Pro Se Prisoner of Resonse Rights Before Granting Summary Judgment

by John E. Dannenberg


The Ninth Circuit US Court of Appeals reversed a district court's grant of defendant's motion for summary judgment because the district judge failed to give fair notice to the pro se prisoner plaintiff of his right to file counter-affidavits or other responsive evidentiary materials in opposition to the motion.


The court also reversed the district court's dismissal of the prisoner's equal protection claim on non-exhaustion grounds, establishing Ninth Circuit precedent that such burden is an affirmative defense that falls to defendants.


Earl Wyatt is a Rastafarian prisoner who sued Mule Creek State Prison (Calif.) officials to protest prison grooming regulations that interfered with his religious practice of wearing his hair in dreadlocks. The US District Court, E.D. Calif., granted summary judgment for the officials. At issue on appeal were the fairness of the procedure used by the Court and the question of exhaustion of administrative remedies.


The Ninth Circuit established the "Rand notice" doctrine (Rand v. Rowland, 154 F.3d 952 (9t" Cir. 1998) (en banc)) wherein summary judgment cannot be granted against a pro se litigant unless the court has first formally notified the prisoner of his "rights and obligations ...

Punitive Damages Are Prospective Relief Under PLRA

by David M. Reutter


The Eleventh Circuit Court of Appeals has held that the PLRA makes punitive damages prospective relief that requires the district court to make a factual finding the award is narrowly drawn to correct the violation of the Federal right. This appeal was filed by defendant guards ...

New York County Liable for Jail Strip Searches

A U.S. district court in New York granted a former prisoner's motion to amend his complaint in a suit involving strip searches and blasted Orange County attorneys for making frivolous arguments against it.


Jaime Murcia was mistakenly arrested on a Federal warrant by City of Newburgh Police. He was transferred to custody of the Orange County Sheriff's Department, then to federal custody, from which he was released. Murcia was strip searched once by Newburgh Police and thrice by deputies at the Orange County Correctional Facility. Murcia sued the City of Newburgh for false arrest and for strip searching him without probable cause.


The court dismissed the false arrest claims but kept the strip-search claim. The court also granted Murcia leave to amend his complaint to add Orange County Sheriff Frank Bigger for his facility's policy of strip-searching everyone in the jail. The court granted leave on May 9, 2001, but the amended complaint was not actually filed until October 19, 2001.


Orange County attorneys moved to strike the amended complaint as late. They also argued that the statute of limitations had run out on claims against Sheriff Bigger and that the state, not the county, was ...

Ohio Prison Officials Cannot Alter Jail-Time Credit Award

The Court of Common Pleas of Marion County, Ohio, has granted release to an Ohio prisoner on habeas corpus after finding that Department of Rehabilitation and Correction (DORC) officials illegally altered a court sentencing entry to "correct" a perceived error in awarding jail-time credit. Issuance of the writ was not appealed by DORC.


William R. Dailey was a DORC prisoner at North Central Correctional Institution (NCCI), in Marion County, Ohio. He received consecutive sentences of eighteen and six months from the Court of Common Pleas of Marion County.


Subsequently, he received an eight-month sentence from the Court of Common Pleas of Summit County, Ohio, the time to be served consecutively to the Marion County terms. The Summit County Court also awarded Dailey 139 days of local jail credit, and later confirmed that award by a subsequent entry.


The Records Supervisor at NCCI refused to grant Dailey the jail-time credit. The Supervisor testified that it was DORC policy to deny credit to prisoners already serving prison time on other charges. DORC claimed that the jail-time credit award was contrary to law and must be corrected by DORC in order to comply with the law. DORC filed a motion to dismiss and ...

Sandin Applied to Wisconsin Sexual Offender Civil Commitment

In analyzing a district court's order finding Richard Thielman, a sexual offender civil committee, did not have a liberty interest from being restrained by waistchains, blackbox, and leg irons when being transported outside the Wisconsin Resource Center for medical treatment, the Seventh Circuit Court of Appeals held that the standard announced in Sandin v. Conner, 115 S. Ct. 2293 (1995) applied to conditions of confinement for civil commitment patients.


Sandin holds a liberty is not created by the state unless the right provides freedom from restraint that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." In holding Sandin should apply to civil commitment patients, the court considered the "certain circumstances" of Wisconsin's laws, and found that "facilities dealing with those who have been involuntarily committed for sexual disorders are `volatile' environments whose day-to-day operations cannot be run from on high." Thielman argued the provisions of Wisconsin law that permits the restraining of patients, who are committed or transferred for security reasons during transport to or from the facility, does not include chapter 980 patients such as himself. The Court found "that argument took a hit when, while this appeal ...

Release of Medical Liability May Establish Deliberate Indifference

The Eighth Circuit Court of Appeals has held that a consent to surgery releasing liability may establish deliberate indifference to medical care.


In 1996, David Wayne Vanderbeck (Beck), a Minnesota state prisoner, began suffering numbness and cramping caused by a bullet near his spine from a 1978 gunshot wound. While medical staff recommended moving Beck closer to the chow hall and infirmary, officials claimed the closer cell house, "cell hall D," was reserved for certain workers. Beck requested movement to this cell hall or a medical facility but ultimately did not qualify for either. Beck also refused a wheelchair and in-cell meals. When diagnosed with a hernia, Beck refused a truss and refused to sign a consent to surgery form releasing officials from liability.


Beck filed a §1983 action that was dismissed on summary judgment. Beck appealed arguing that genuine issues of material fact remain and that he was not properly advised by the district court on summary judgment procedures.


The Court of Appeals found that while some sister circuits do advise pro se litigants on summary judgment procedures, the Eighth Circuit does not make such a requirement. The Court affirmed summary judgment, except on the issue of the release ...

New York Jail Strip Search Policy Unconstitutional

by Matthew T. Clarke


A panel of the Second Circuit court of appeals has upheld a New York federal district court's ruling that the blanket strip search policy of Nassau County, New York, which allows visual body cavity searches of all incoming prisoners, is unconstitutional. In doing so, the ...

Woman Gang Raped in Back of Jail Van

In August 1999, four Connecticut men sexually assaulted an unnamed female prisoner while being transported together in a New Haven County Sheriff's Department van. The men, who were also prisoners, allegedly broke down a metal gate separating them from the woman, removed her clothing and attacked her.


According to the woman, Marcus Gregory, 32, was the instigator of the assault. He allegedly grabbed her in a headlock and raped her. The other three men, Hubert Plummer, 24, David Bridges, 26, and Charles Johnson Jr., 46, allegedly fondled her while they masturbated.


All four men pleaded no contest to various sexual offenses stemming from the attack. On January 25, 2002, Gregory, Bridges, and Johnson received 15-year prison terms followed by 10 years of intensive parole. Gregory was already serving a 100-year sentence for two previous sexual assaults. Bridges also pleaded guilty to an unrelated attempted rape charge from 1995.


Plummer received an eight-year prison sentence and five years of parole, primarily because the authorities found no DNA evidence linking him to the assault. Plummer did admit that he assisted in breaking down the metal barricade, but denied assaulting the woman.


The 1999 van rape is not the first time the ...

Failure to Assert Hearing Officer Bias Administratively Waives Claim on Habeas

The court of appeals for the Seventh circuit held that a prisoner's failure to present his claim of hearing officer bias in an administrative appeal waived the claim on habeas review. Steven Eads, an Indiana state prisoner, was infracted for disorderly conduct and found guilty at a disciplinary hearing and sentenced to a loss of 90 days of good time credits.


Eads filed a federal habeas corpus petition (Indiana does not provide for judicial review of prison disciplinary hearings, therefore Indiana prisoners can file challenges to such hearings directly in federal court as habeas corpus petitions) claiming that a member of the hearing committee that found him guilty was the "live in boyfriend" of a female guard who was an important witness against him. Eads did not make this claim when he administratively appealed the infraction. The district court denied relief and the court of appeals affirmed.


The appeals court noted, "if the relationship were as intimate as alleged here and if the witness were crucial to the prosecution, the proceeding would indeed violate due process." The court, however, upheld the infraction because Eads failed to raise the claim in his administrative appeal, "Thus forfeiting his right to urge ...

News in Brief

Arizona: Protesting the seizure of property sold to them by the prison but which does not meet current prison property rules, on November 18, 2002, hundreds of prisoners at the Arizona State Prison Complex in Florence started fires from electrical outlets in their cells and threw burning items outside their cells. The prison was placed on lockdown and no serious injuries were reported. The state prison system has announced plans to confiscate all prisoner property which does not meet current policy standards.


California: On December 12, 2002, a riot between Southern Mexican and black prisoners in the dining hall of the Folsom State Prison involved over 100 prisoners and lasted about five minutes before ending when a prison guard shot an unidentified prisoner in the buttocks. Guards also used pepper spray and rubber batons on the rioting prisoners. Black and Hispanic prisoners were placed on an indefinite lockdown based on their race while prison officials investigate. The riot occurred in the medium security portion of the prison.


California: On January 6, 2003, Kevin Joseph Martino, 43, a guard at the San Quentin State Prison, was charged with assault with a deadly weapon for holding a man on the ground while ...

Home Detainee Has Fourth Amendment Rights

The Supreme Court of Virginia has held that a defendant who entered the Fairfax County Sheriff's Electronic Incarceration Program (Program) did not automatically waive his right to privacy of his home by agreeing to enter the Program. Upon entering the Program, Michael L. Megel agreed to adhere to rules of the Program that required, among other things, he submit to random urinalysis, continuously wear an electronic monitoring device on his ankle, refrain from possessing weapons or intoxicating substances, and subject himself to random, unannounced visits by the sheriff.


Sheriff officers received a tip that Megel had a large bag of cocaine at his residence; three officers then went to search the residence without a warrant. Upon arrival, the officers were allowed into the residence by Megel's girlfriend. The officers then made a quick security sweep to assure no one was in the residence but Megel, his girlfriend, and their child. After Megel was informed of the reason for the visit, he told them to look around because they would not find anything. The officers found two handguns in a dresser drawer with men's underwear. Megel was charged with possession of a weapon by a convicted felon, and ...

New York Prisoner Awarded $411,000 in Failure to Protect Suit

The New York State Court of Claims in Rochester, NY has awarded a state prisoner $411,000 for injuries he received when another prisoner attacked him.


Michael Schindler, a 34-year-old New York state prisoner, was playing "two-on-two" touch football at Groveland Correctional Facility when one of the other players attacked ...

BJS Releases New Recidivism Study

The Bureau of Justice Statistics (BJS), a division of the Department of Justice, has published a recidivism study of prisoners released in 1994, the first since its 1989 report on 1983 releasees.


The report studied the recidivism rate of 272,111 prisoners released from 15 states in 1994. These former prisoners represented two-thirds of all prisoners released in 1994. Four measures of recidivism were used: rearrest, reconviction, resentence to prison, and return to prison with or without a new sentence. Released prisoners were tracked for three years, and both "In-State" and "Out-of-State" recidivism were measured. In-State recidivism occurs when a rearrest, reconviction, resentence to prison, or return to prison occurred in the same state that released the prisoner. Out-of-State recidivism occurs when a prisoner recidivates in a different state.


The researchers found that within three years of release in 1994: 67.5% of releasees were rearrested for a felony or serious misdemeanor; 46.9% were convicted of a new crime; 25.4% were sentenced to prison for a new crime; and 51.8% were returned to prison with or without a new sentence. The 51.8% returned to prison were divided into 25.4% sentence to prison for a new ...

 

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