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Prisoner Education Guide

Prison Legal News: April, 2003

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Volume 14, Number 4

In this issue:

  1. Statutes Affecting Disabled Prisoners (p 1)
  2. Florida Jury Awards $390,000 Over Defective Prison-Produced Chair (p 4)
  3. Florida PLN Writer Settles Retaliation Suit for $3,000 (p 5)
  4. Prison Labor Losing Popularity in Oregon (p 6)
  5. From the Editor (p 7)
  6. Pro Se Tips and Tactics (p 8)
  7. PLN Settles Oregon Censorship Suit for $55,414.31 (p 10)
  8. Interest on Washington Restitution Cannot Be Suspended (p 10)
  9. Texas Grants Prisoners Right to Forensic DNA Testing (p 11)
  10. Sole Washington Woman Civil Commitment Taxes System (p 12)
  11. Wyoming Jail Must Disclose Suicide Prevention Critique (p 12)
  12. Rehabilitation Act, Title II of ADA, Held Unconstitutional (p 13)
  13. Delay in MAP Implementation Violates Washington Law (p 14)
  14. PI Issued in Arizona Internet Communications Ban (p 14)
  15. California Approves Forced DNA Extractions (p 15)
  16. Forced DNA Sampling of California Prisoners Upheld (p 15)
  17. Murder, Mayhem, Corruption and Snitches: BOP Florence Exposed (p 16)
  18. Arizona Guards Continue to Rape Prisoners (p 20)
  19. New Jersey Jail Guards Awarded $1.2 Million Following Retaliation for Protesting Jail Conditions (p 20)
  20. California Guards Convicted of Arranging Prison Beatings, New Conspiracy Accusations Leveled (p 21)
  21. Georgia Parole Board's "90% Policy" Ruled Ex Post Facto (p 22)
  22. $400,000 Jury Award in Illinois Ruptured Appendix Suit (p 23)
  23. PLRA Requires More Than De Minimus Physical Injury (p 24)
  24. Property Use Versus Non-Use Texas Tort Claim Standard Explained in Medical Death Claim (p 24)
  25. Idaho Free Speech Claim Reinstated, Voluntary Dismissal Clarified (p 25)
  26. State Tolling Statute Applied in § 1983 Action (p 26)
  27. Warden, Security Director Liable for Iowa Guard's Sexual Assault of Prisoner, $45K Verdict Upheld (p 26)
  28. Vermont DOC Must Comply with APA for Rule Changes in Furlough Program (p 27)
  29. Book Review: Law and the Rise of Capitalism (p 27)
  30. $4.47 Million in Washington Negligent Supervision Settlements and Verdicts (p 28)
  31. Failure to Allege Imminent Threat Precludes Justification Defenses in BOP Weapons Prosecution (p 29)
  32. News in Brief (p 30)

Statutes Affecting Disabled Prisoners

In the past couple of years, there have been a number of changes to federal statutes that provide protections to those confined with disabilities. This article discusses those changes. Additional rights that the disabled may have under federal and state constitutional provisions, such as the Eighth Amendment right to be provided medical care, and under State Constitutions and laws are not addressed in this article.

Americans with Disabilities Act (ADA)

In 1990, the Americans with Disabilities Act was enacted because "current laws [e.g. the Rehabilitation Act] were `inadequate' to combat `the pervasive problems of discrimination that people with disabilities are facing.'" See: Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir.) (quoting S.REP. NO. 116, 101st Cong., 1st Sess. 18 (1989)), cert. denied, 516 U.S. 813 (1995). Even though the language of the ADA did not appear to exclude prisons and prisoners from its coverage, many courts refused to apply it to prisoners. See, e.g.: Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995); Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998); Key v. Grayson, 179 F.3d 996, 1000 (6th Cir. 1999) (prior to 1996, not clear that ADA and ...

Florida Jury Awards $390,000 Over Defective Prison-Produced Chair

A Pinellas County (Florida) jury
found that an office chair assembled by the Florida DOC's prison industries was defective, and the proximate cause of a state office worker's injuries. The jury awarded the woman $390,000 in damages; however, the recovery was capped at $100,000 by Florida ...

Florida PLN Writer Settles Retaliation Suit for $3,000

by David M. Reutter

A 42 U. S. C. § 1983 action filed in a Florida State Court alleging retaliatory job changes for the filing of grievances and lawsuits that challenged the general living conditions at Glades Correctional Institution (GCI) has been settled for $3,000. In June 1993, David Reutter ...

Prison Labor Losing Popularity in Oregon

Since the 19th century prisoners
in Oregon have literally labored under a policy that insisted prisoners should work as hard as taxpayers. But the prevailing philosophy is falling prey to fiscal realities. Oregon's evaporating economy has enhanced employment concerns among its citizens, even as prison employment prospers. Oregon's jobless rate, the highest in the nation, is 125,000 and climbing. And while an economic recession is to blame for employment woes, prisoners, not surprisingly, become the scapegoats.

It seems that Oregonians are adamant about putting prisoners to work. In 1994, voters approved a measure, by 71 percent, mandating that all prisoners either work full-time or be engaged in on-the-job training. Consequently, using prisoners as a source of cheap labor added 511 full-time jobs to the Oregon prison system in 2002.

Prisoners are being used both inside and outside the walls to work in hospitals, laundries, lumber mills, and nurseries. Some jobs are as sophisticated as doing computer-aided map-making for public industries. In general, such jobs represent a savings of around 40 percent over the cost of free-world labor.

American Linen, a laundry company, lost a contract to a cheaper bid by an Oregon prison. The loss, according to ...

From the Editor

From The Editor

by Paul Wright

Beginning with this issue of PLN there will be some changes in the law articles. Due to the limited space we have for news and law articles and the ongoing growth in prison and jail related cases being decided by the courts, we are going to focus more on appellate court rulings and final decisions on the merits in the lower courts. This means that cases at the district court level that deny summary judgment to prison or jail defendants will rarely be reported in PLN unless they decide new or novel issues of law. We reported those cases in the past since they are useful to litigants in the districts where the case arose and tend to show patterns of abuse and liability. We hope this will cut down on the back log of law articles and better serve our readers.

In this issue we report the settlement of PLN's second censorship lawsuit against the Oregon DOC. Despite PLN's ongoing success in challenging censorship efforts by prisons in various parts of the country, PLN is still faced with myriad censorship problems, all of which require staff time and resources to attempt ...

Pro Se Tips and Tactics

If you are litigating or planning a case in federal court against state prison officials, it is very important to be clear about what rights you are asserting and what relief you are requesting. Federal courts are not allowed to simply order states to comply with all federal laws that you can come up with and show to the court. Instead, federal courts can rule in your favor on a request to enforce federal law only when you can show that you have rights that federal law gives to you. And the kind of relief you request may determine whether or not you can prevail in your case.

1. What Rights Are You Asserting?

The federal law used most by state prisoners trying to enforce their rights is of course 42 U.S.C. § 1983. Sometimes people talk about suing to stop a "violation" of § 1983, but this is not a helpful way to talk about this statute, because it is not a law that creates substantive rights that can be violated. Instead it is a law that creates a federal court remedy for violations of federal rights found elsewhere. § 1983 says:

"Every person who, under color of any statute ...

PLN Settles Oregon Censorship Suit for $55,414.31

On January 29, 2003, the Oregon
Department of Corrections (DOC) agreed to settle a censorship lawsuit filed by Prison Legal News by paying $39,914.31 in fees and costs and $15,500 in damages and changing its policies concerning the processing and censorship of prisoner mail. On April 2 ...

Interest on Washington Restitution Cannot Be Suspended

In a brief ruling, a Washington state appeals court held that trial courts lack the statutory authority to suspend the accrual of interest on court ordered restitution. Dean Claypool pled guilty to second degree assault charges and, in addition to a prison sentence, was ordered to pay unspecified legal financial obligations, including restitution. The trial court ordered that the interest accruing on these LFOs be suspended until Claypool was released from prison. The prosecutor appealed and the appeals court reversed and remanded.

The appeals court relied on the statutory language of RCW 10.82.090 which holds that interest accrues on criminal LFO's from the date of judgment. Because the statute uses mandatory language, the courts have no discretion in suspending or otherwise limiting the accrual of interest on LFOs, which are treated the same as civil judgments. "Interest begins to accrue from the date of judgment. The court then erred by deferring the accrual of interest until Mr. Claypool's release from custody." The sentence was reversed and remanded to the trial court with instructions to eliminate the language deferring interest from Claypool's judgment and sentence. See: State v. Claypool, 45 P.3d 609, 111 Wn. App ...

Texas Grants Prisoners Right to Forensic DNA Testing

by Matthew T. Clarke

The Texas state legislature has enacted what may be the most pro-prisoner post-conviction DNA testing entitlement law in the country. Codified at Chapter 64 of the Texas Code of Criminal Procedure, the law gives any convicted person the right to submit a motion for DNA testing of evidence containing biological material secured in relation to the challenged conviction that was in the possession of the state during the trial of the offense but: (1) not previously subjected to DNA testing because such testing was unavailable or not technically capable of providing probative results; (2) if previously tested, newer techniques provide a reasonable likelihood of more accurate and probative results; or (3) reasons exist showing that the interest of justice require such testing. A convicted person is entitled to appointment of counsel to prepare the motion for forensic DNA testing and for representation at any hearing on the motion. To gain appointed counsel, the prisoner need only notify the original trial court of his desire to file a motion and his indigence while requesting counsel.

Upon receipt of the motion, the state is required to deliver the forensic evidence to the court or explain why it cannot ...

Sole Washington Woman Civil Commitment Taxes System

Since 1997, when a court deemed her too dangerous to live in society, Laura McCollum has remained the lone female prisoner at Washington's civil commitment center for sexually-violent predators on the grounds of the state's women's' prison near Purdy. McCollum, 43, who has been confined in an, 1,100-square-foot manufactured home, may soon be getting some company, however.

McCollum was convicted in 1990 of second degree child rape and sentenced to five years. At the expiration of her sentence, the state petitioned the trial court for an order declaring her a sexually-violent predator and committing her indefinitely to a "treatment" program. Instead of exercising her right to a jury trial, McCollum agreed to enter the program and thus became only the second woman in the nation classified as a sex predator.

However, in 1997 the state lacked a facility in which to house McCollum, so she initially lived along side the men's program when it was still located on the grounds of the state reformatory at Monroe. A federal judge eventually ordered her transferred to the women's prison at Purdy.

Although isolated from the regular Purdy prisoners, McCollum does eat in the prison cafeteria and ...

Wyoming Jail Must Disclose Suicide Prevention Critique

The Wyoming Supreme Court has held that the Wyoming Public Records Act (WPRA) requires that state's jails to disclose to the press reports evaluating jail suicide prevention procedures.

In 1998, prisoner suicide attempts increased in the county jail in Laramie, Wyoming. Laramie County Sheriff, Roger Allsop, requested an evaluation of the jail's suicide prevention procedures from the National Institute of Corrections. In 1999, Judith F. Cox, of that organization, provided Allsop a copy of her report on the jail's suicide prevention procedures. Cox's report identified blind spots in the jail and other general security deficiencies, which could increase the likelihood of successful prisoner suicides.

In October of 1999, the Cheyenne Newspaper sought disclosure of the Cox report under the WPRA. Allsop refused, contending that it was exempt from disclosure as an "investigation ... by, or ... security procedures of, any sheriff," and that disclosure would be "contrary to the public interest" under the WPRA, WSA § 16-4-203(b)(1). The trial court ordered Allsop to disclose the Cox report, with sensitive security information to be redacted, and Allsop appealed.

The Wyoming Supreme Court declined to decide whether the Cox report was exempt under § 16-4-203(b)(1), but held that ...

Rehabilitation Act, Title II of ADA, Held Unconstitutional

In two separate rulings the courts of appeal for the Fourth and Fifth Circuits have held that section 504 of the Rehabilitation Act (RA), 29 U.S.C. §794(a), and, Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §12312, do not validly abrogate states' Eleventh Amendment immunity from suit and are, therefore, unconstitutional. The ruling overturns the Fifth Circuit's prior holding in Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998).

Five mentally ill Louisiana prisoners sued the Louisiana Department of Public Safety and Corrections (LDPSC) and various state officials under 42 U.S.C. §1983, §504 of the RA, and Title II of the ADA, citing various Eighth Amendment violations and acts of discrimination in the treatment of their illnesses. The complaint was amended to seek relief under the ADA and RA only against the LDPSC. LDPSC moved to dismiss the ADA and RA claims citing sovereign immunity under the Eleventh Amendment. The district court denied the motion, and LDPSC appealed.

The Court of Appeals found that both the ADA and the RA "indisputably contain unequivocal statements of intent to abrogate" states' Eleventh Amendment immunity. LDPSC argued that Congress' abrogation was ...

Delay in MAP Implementation Violates Washington Law

The Washington State Court of Appeals held that the Washington parole board (Board) violated statutes and its own procedures by imposing a Mutual Agreement Program (MAP) with no time frame. The court also held that the Board must clarify a prisoner's right to accrual of good time before and during the MAP.

In March 2000, Washington prisoner Cynthia Marler was found "conditionally parolable" by the Board, subject to a MAP "which the Department of Corrections was to prepare." MAP "is a transition release plan developed by DOC staff. Its purpose is [t]o establish a system for developing release plans for offenders serving sentences for Murder First Degree,' for whom it is considered mandatory." It "provides for structured community reentry' by setting forth the facilities where the offender will be housed, the length of stay at each facility, and the expectations for specific programs and conduct."

More than one year after the Board's decision in Marler's case, a MAP had not been established for her. She then filed a Personal Restraint Petition alleging numerous violations of Washington law and constitutional protections.

The court rejected Marler's argument that the Board cannot refuse to release a prisoner who ...

PI Issued in Arizona Internet Communications Ban

by John E. Dannenberg

On December 16, 2002, the U.S. District Court (D. Ariz.) granted plaintiffs' motion for a preliminary injunction (PI) enjoining the Arizona Department of Corrections (ADOC) from enforcing laws arising from Arizona House Bill 2376 (HB 2376) - an enactment banning Internet-generated communications with prisoners - pending a final determination of the constitutionality of those laws.

The Canadian Coalition Against the Death Penalty and other prisoner advocates sued ADOC Director Terry Stewart for injunctive relief to restrain enforcement of HB 2376 because it violated their First Amendment rights to broadcast their anti-death-penalty message. The court first ruled that although HB 2376 was directed at prisoners, non-prisoner plaintiffs had standing to protect their own rights, citing LSO, Ltd. v. Stroh, 205 F.3d 1146 (9th Cir. 2000). ADOC's alternative attempt to bar a PI - grounded in the Prison Litigation Reform Act (PLRA) - likewise failed because of the non-prisoner status of the plaintiffs. The PLRA applies only to "persons confined in prison." (18 USC §3626(g)(2).)

To warrant a PI, the plaintiff bears the burden of showing "either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions going to the ...

California Approves Forced DNA Extractions

California's Governor Gray Davis authorized the use of force to take DNA samples from state prisoners, when he signed Senate Bill 1242 into law on Sept. 17, 2002.

Existing California Penal Code §§ 296, 296.1 and 296.2 codify the requirement and procedure for taking DNA samples from specified incarcerated violent felons. [These were upheld by a state appeals court. See article below.] However, sanctions for failure to voluntarily submit have proven insufficient to convince over 400 prisoners to cooperate.

The ACLU and the criminal defense bar, when reviewing the proposed forced compliance bill, complained that it would lead to excessive violence by prison guards. Accordingly, a provision was adopted requiring clear procedures and guidelines for DNA extractions, including full video-taping.

Governor Davis was not worried that this new law would open the door for prisoner litigation over excessive force. "I have a lot of confidence in correctional officers ... in this state," he said. Considering that in the three weeks prior to September 6, 2002, the state prison guards' union had donated $600,000 of a recent $1 million additional pledge to Davis' current reelection campaign, followed by another $200,000 just before the DNA bill was signed, his ...

Forced DNA Sampling of California Prisoners Upheld

The California Court of Appeals upheld the California Department of Corrections (CDC) procedure of forcibly collecting blood and saliva DNA samples from prisoners convicted of specified violent crimes, including capital murder. Rejecting the privacy claims of eight women on Death Row, the court ruled that CA Penal Code (PC) §295 (DNA Data Bank Act of 1998) was sufficiently specific to permit such action without the promulgation of a corresponding administrative regulation.

Maria Alfaro and seven other condemned women prisoners sought injunctive relief to prevent application of PC §295 as to them, ostensibly because since they would never see the streets again, collecting their DNA was an unwarranted invasion of privacy. But CDC noted that to date, 101 "cold hits" of DNA from current prisoners had resolved past crimes, and was thus needed.

The court upheld the constitutionality of the law, agreeing with federal appellate courts in other states that convicts have a diminished expectation of privacy and that the Act's intrusions were minimal. (See, e.g., Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999) [CT]; Schlicher v. Peters, I & I, 103 F.3d 940 (10th Cir. 1996) [KS]; Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996) [CO]; Rise v. State of Oregon, 59 ...

Murder, Mayhem, Corruption and Snitches: BOP Florence Exposed

Located in the gently rolling hills of Southern Colorado, dotted with juniper, poplar and cedar trees, Florence is a quiet, small town that was once a prison town without a prison. At just over 5,000 town residents, Florence shares its view of the Sangre de Christo mountain range with its thrice larger sister city four miles west, Canon City, home to a sprawling collection of eight state prisons ranging from minimum security to the state supermax, CSP. With no prisons of its own, Florence residents who worked in the prison system had to work in the Canon City complex where the prisons date to 1871-the Colorado Territorial days.

Towering 800 feet above Canon City is the famous Skyline Drive, built on the backs of convict chain gangs in 1903. Yet Florence remained without distinction. The world's highest suspension bridge (1,053 feet), built in 1929, crosses the Royal George just outside Canon City, yet Florence, within sight of Canon City, remained unnoticed; unnoticed that is until 1993 when the United States Department of Justice, Bureau of Prisons (BOP) put Florence on the map by opening the Florence federal correctional complex on a 600-acre site donated by the city ...

Arizona Guards Continue to Rape Prisoners

Two guards at Arizona's Perryville prison are facing numerous charges, substantiated by internal investigations, of sexual misconduct with prisoners.

Derrick Renard Allen was indicted in late April 2002 by a state grand jury on 8 counts of sexual assault and 2 counts of smuggling contraband into the prison; he was fired in May 2002. According to the investigation report, Kimberly Thompson, a prisoner at Perryville, engaged in sexual relations six times with Allen from November 2000 to October 2001. In exchange, Allen rewarded her with gifts, including perfume, music tapes, and twice with marijuana. In the summer of 2001, when Allen learned Thompson had been impregnated by him, he forced her to abort the fetus by taking a "morning after" pill. Allen claimed that the only interaction he had with prisoners was "Telling them about Jesus Christ."

Four women have accused prison guard Jose Munoz of sexual misconduct, including fondling their breasts, demanding oral sex and making sexually suggestive comments from January to May 2002. On June 1, 2002, the Arizona Republic reported that the Arizona Department of Corrections (DOC) had referred the case to the state Attorney General's office. One Perryville prisoner alleges that on five occasions ...

New Jersey Jail Guards Awarded $1.2 Million Following Retaliation for Protesting Jail Conditions

On April 10, 2002, a federal jury in New Jersey awarded four Atlantic County Jail guards $300,000 each for retaliation taken against them after they publicly protested unsafe jail conditions.

In May, 1997, Edward Clopp, Noriss Justis, Robert Reid Murie, and Iris Quezergue, guards at the Gerard L. Gormeley ...

California Guards Convicted of Arranging Prison Beatings, New Conspiracy Accusations Leveled

by Marvin Mentor

On May 15, 2002, a federal criminal jury convicted two Pelican Bay State Prison (CA) guards of violating the civil rights of eight prisoners whom they conspired to have beaten and stabbed - two fatally; And in a civil trial ensuing from one prisoner's death, new accusations implicating more guards as well as the former trial attorneys for the prison guards - linking them to a prison gang - were leveled.

Guards Michael Powers and Jose Garcia allegedly targeted child molesters, rapists and prisoners who refused to cooperate with them, by soliciting other prisoners with alcohol and special privileges to attack the targets. Federal prosecutor Melinda Haag told the jury of such violence and cruelty dating back a decade; describing ten incidents where Powers or Garcia had prisoners they didn't like "hurt, assaulted, stabbed or shot." Prisoner Watson White was fatally stabbed in 1992 by a prisoner allegedly solicited by Powers. Prisoner William Boyd was stabbed to death in the Pelican Bay yard just days after he had reluctantly testified against Garcia. Prisoner Duke Bolter is pending a capital murder trial in Boyd's death. Garcia was ultimately convicted in state court for conspiracy and for bringing alcohol ...

Georgia Parole Board's "90% Policy" Ruled Ex Post Facto

Georgia Parole Board's "90% Policy" Ruled Ex Post Facto

by John E. Dannenberg

The United States District Court (N.D. Ga.) held that the retroactive application by the Georgia Board of Pardons and Paroles ("Board") of its 1998 policy revision requiring specified violent felons to now do 90% (rather than 1/3) of their "time to serve" before becoming eligible for their first parole hearing _ even for crimes committed before 1998 - violated Constitutional ex post facto rights. While the injunctive relief ordered was only for the named plaintiff, the court's ruling could affect up to 2,300 other current Georgia prisoners.

Coleman Jackson was imprisoned in 1999 for an aggravated assault he committed in 1996, with a "time to serve" of five years. As of the time of his commitment offense, he was entitled under the Board's then existing rules to receive his initial parole hearing after completing one third of his "time to serve." However, in response to election-year politics, the Board amended its rules in 1998 to increase the initial-hearing ineligibility period (for 20 specified violent felonies) to 90% of the "time to serve." Worse yet, and applicable to Jackson, for those prisoners whose ...

$400,000 Jury Award in Illinois Ruptured Appendix Suit

In April, 2002, a federal jury in East St. Louis, Illinois, awarded $400,000 in damages to former prisoner David Sherrod, finding that Illinois Department of Corrections medical staff had shown deliberate indifference to his medical needs by failing to treat a ruptured appendix. In March, 1995, Sherrod was at ...

PLRA Requires More Than De Minimus Physical Injury

The Ninth Circuit Court of Appeals has held that 42 U.S.C. §1997e(e) requires a prisoner demonstrate more than de minimus physical injury to receive compensatory damages for mental and emotional claims. Pre-trial detainee Eric Oliver filed a civil rights action alleging he endured overcrowded and "dehumanizing" conditions during three separate incarcerations at Nevada's Clark County Detention Center. The District Court found that §1997e(e) states "no federal civil action may be brought by a prisoner confined in jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." The Court held that the physical injury must be more than de minimus, and it dismissed Oliver's complaint for failing to make such a showing.

The Ninth Circuit found the phrase "physical injury" does not wear its meaning on its face. Congress failed to specify the type, duration, extent, or cause of "physical injury" that it intended to serve as a threshold qualification for mental or emotional injury claims. Nor did it define the meaning or limits of "mental or emotional injury." Oliver urged the Court to hold that "any" physical injury is sufficient to meet ...

Property Use Versus Non-Use Texas Tort Claim Standard Explained in Medical Death Claim

by Matthew T. Clarke

The Texas Supreme Court (TSC) has held that using pain medication to fatally mask meningitis symptoms was not a "use" of tangible state property within the meaning of the Texas Tort Claims Act, § 101.021(2) (TTCA).

The surviving spouse and children of a Texas prisoner sued the Texas Department of Criminal Justice (TDCJ) under the TTCA after a prison doctor used pain and anti-nausea medication on her husband which masked his symptoms and prevented the diagnoses of cryptococcal meningitis in time to prevent his death. TDCJ filed a plea to the jurisdiction alleging that the suit failed to bring a claim within the limited waiver of sovereign immunity contained in the TTCA. The district court denied the plea and TDCJ appealed. The court of appeals affirmed the district court. TDCJ v. Miller, 48 S.W.3d 201 (Tex.App.-Houston [1st Dist.] 1999). TDCJ petitioned the TSC for a bill of review.

The TSC held that the court of appeals erred when it did not evaluate whether or not the pleadings alleged the use of property as required by the TTCA. The TTCA specifically provides that "a governmental unit in the state is liable for ...

Idaho Free Speech Claim Reinstated, Voluntary Dismissal Clarified

The Ninth Circuit Court of Appeals held that factual issues precluded summary judgment on a prisoner's free speech claim and that dismissal with prejudice of his remaining claims was an abuse of discretion.

Idaho prison regulations require prisoners to shave daily. A guard ordered prisoner Christopher Hargis to shave. But Hargis suffers from a neurological disorder, which causes his head to twist and jerk uncontrollably. He attempted to comply with the order but cut himself, due to a neck spasm, after shaving only half his face.

The following day, the guard warned Hargis that he would issue a disciplinary offense report (DOR) is he did not shave. Hargis explained that he had a medical condition, which made it impossible to shave without cutting himself. The guard informed Hargis that medical staff indicated that he had no diagnosed medical condition, which would interfere with his ability to shave.

The guard denied Hargis's request to use an electric razor, as the guard's supervisor had previously allowed. Hargis's requests to speak with medical personnel or the guard's supervisor were also denied.

Hargis advised the guard that he had a court action pending in an attempt to obtain medical ...

State Tolling Statute Applied in § 1983 Action

by John E. Dannenberg

The Seventh Circuit U.S. Court of Appeals held that an underlying state tolling statute applied to a state prisoner's 42 USC § 1983 civil rights complaint, thus giving him time to complete his administrative grievance process as required by the Prison Litigation Reform Act (PLRA).

Shaun Johnson, a prisoner in the Cook County (Ill.) Department of Corrections, filed a § 1983 complaint alleging that guards Ruben Rivera, Matthew Martinez, Geoffrey Howard and William Pellegrini had beat him to the point of requiring medical attention.

Johnson filed a grievance and deposited it in the cellblock mailbox, per prison procedures. However, Pellegrini removed and destroyed it. For the next year, Johnson and his family inquired about the status of the grievance, but received no response.

In June, 1998, Johnson filed a § 1983 action in the U.S. District Court (N.D. Ill.) requesting relief from the December, 1995 beating. The court granted defendants' motion to dismiss as time-barred by the two-year state statute of limitations for § 1983 actions. The court held that Johnson, who was awaiting exhaustion of his grievances, should have realized the futility of the grievance process and filed in court anyway. Johnson appealed, arguing that ...

Warden, Security Director Liable for Iowa Guard's Sexual Assault of Prisoner, $45K Verdict Upheld

Affirming the judgments of the United States District Court for the Southern District of Iowa, the Eighth Circuit Court of Appeals upheld the jury verdict and the denial of post-trial motions in a case awarding compensatory and punitive damages to a female prisoner sexually assaulted by a guard.

Pamela Riley ...

Vermont DOC Must Comply with APA for Rule Changes in Furlough Program

The Vermont Supreme Court has held that the state's Department of Corrections (DOC) must comply with the Vermont Administrative Procedure Act (APA) before it implements and enforces any rule changes. This was a class-action suit represented by Jeff Sworkin of the Prisoner Rights unit in the Defender Generals Office; it was brought after the DOC changed its furlough policy to prohibit violent offenders from receiving a furlough until they reach their minimum release date. The furlough rule is contained in DOC's Offender Classification Manual; therefore, DOC argued its change is a "practice" and not a "rule" that is not required to go through the APA procedure.

The Court disagreed. The Court held the distinction urged by DOC is without substance under the APA. "The furlough policy may also be a practice, but because the policy is generally applicable to all prisoners convicted of violent felonies, it is a rule and is thus subject to the rule making procedures of the APA." The APA requires use of its procedures where due process requires it, or "a statute directs or permits an agency to adopt rules." Thus, the Court re-affirmed its previous ruling in this case that DOC had the ...

Book Review: Law and the Rise of Capitalism

by Michael E. Tigar & Madeleine R. Levy, New (2000) Edition by Michael E. Tigar, Monthly Review Press, 348 pages, $18.00

Review by Peter Wagner

Famed litigator and scholar Michael Tigar has reissued his 1977 classic Law and the Rise of Capitalism with a new introduction and afterword that contains further amplification of his "jurisprudence of insurgency" thesis. The law both reflects society's social structure and is a mechanism for its evolution. Law and the Rise of Capitalism traces the twin development of the law and economic relations to the present. Starting in the twelfth century with the rise of a merchant class and their need for an enforceable contract law, Tigar explains how the merchant class came into opposition with the existing feudal political and legal establishment.

The afterword extends the thesis to a discussion of the dialectical nature of international law: useful to powerful states that wish to exert their will on smaller states such as Yugoslavia, but also useful in bringing human rights violators to justice. To Tigar, law is neither the product of society nor its creator; and it is neither the defender nor the Achille's heel of the status quo. Rather, law is both, and by understanding this history and role, Tigar aids those struggling for justice in seeing the positive role that the law can play.

This unique book is hindered only by its overly dense writing and the decision to not use footnotes, making following up on specific points somewhat difficult. The book does contain an extensive bibliography, however.

$4.47 Million in Washington Negligent Supervision Settlements and Verdicts

Washington State recently settled or was found liable in three separate law suits alleging that it negligently supervised probationers or parolees. Negligent supervision cases are not new in Washington. Since 2000, the State either settled or was ordered to pay more than $100 million in similar suits.

The family of ...

Failure to Allege Imminent Threat Precludes Justification Defenses in BOP Weapons Prosecution

The Seventh Circuit Court of Appeals held that the district court did not error in excluding evidence or argument regarding affirmative defenses of necessity and duress in trials for prisoners' weapon possession.

On May 18, 1999, Terry Walker, a black prisoner at the United States Penitentiary at Marion, Illinois, (Marion) was stabbed to death by two white prisoners "associated with the Dirty White Boys prison gang, and its ally, the Aryan Brotherhood."

Prison officials immediately conducted a thorough shakedown of the prison in an effort to locate additional weapons and weapon making tools. Individual prisoners were subjected to "x-ray and digital examinations in an attempt to discover any internally concealed contraband."

"One day after the murder, x-ray and digital examinations revealed that five [prisoners] had concealed weapons, steel or plastic knives, in their rectal cavities. . . . One week later, . . . the same search methods uncovered a steel knife that [another prisoner] had hidden in his rectal cavity."

Three prisoners, Joseph Tokash, Mitchell Kolb and John Derel Usher, (defendants) were charged with possessing weapons in a federal prison in violation of 18 U.S.C. § 1791(a)(2). Three other prisoners were also charged, but their cases were not relevant to the appeal ...

News in Brief

Arkansas: On May 16, 2002, Barry Parrish, 38, pleaded guilty to walking out of the Lewisville county jail where he was imprisoned and working as a trusty, going to the home of jail guard George Turner on August 23, 2001, killing him with a pair of scissors and then stealing Turner's truck. Parrish was sentenced to life in prison.

Brazil: On December 8, 2002, developers demolished three of seven cell blocks of the notorious former Carandiru prison in Sao Paulo. A recreational park complex will be built on the site of what had been one of the world's largest and bloodiest prisons.

California: In December, 2002, former Los Angeles Rams football player Kevin McLain sued the San Bernardino county jail after he fell and broke his hip while awaiting trial. McLain was using a toilet when he slipped, grabbed a handicap rail, which came off the wall causing him to violently strike the toilet. McLain, who had hip and knee problems prior to this accident, is now confined to a wheelchair as a result of his injuries. McLain was convicted on various fraud charges in state and federal court for defrauding e-Bay users.

California: In January, 2003, Robert ...


Federal Prison Handbook



Prisoner Education Guide side



Federal Prison Handbook




Prisoner Education Guide side