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Prisoner Education Guide

Prison Legal News: May, 2003

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Volume 14, Number 5

In this issue:

  1. Federal Legal Standards for Prison Medical Care (p 1)
  2. When Prison Officials Don't Respond Administrative Remedies Are Exhausted (p 10)
  3. Texas Parole Officer Hires Parolee for Murder (p 11)
  4. From the Editor (p 12)
  5. CCA Pays $54 Million to IRS and Settles Gender Discrimination Complaint (p 13)
  6. The Parents' Project: Parent-Child Prison Visitation Issues Raised by Bazzetta, et. al. v. McGinnis, et. al. (p 14)
  7. Erroneously Released Texas Prisoner Has Right to Street Calendar Time (p 15)
  8. No Escape: Male Rape in U.S. Prisons: A Human Rights Watch Report by Joanne Mariner (p 16)
  9. Writing to Win (p 17)
  10. Eighth Circuit Reverses Dismissal of Prisoner's Hepatitis C Treatment Claim (p 18)
  11. Texas Prison Guard Charged with Raping Male Prisoner; Prisoner Files §1983 Complaint (p 18)
  12. Ohio Supreme Court Orders Changes in Parole Board Procedures (p 19)
  13. California Pays $1.1 Million in Prison Sexual Harassment Suits (p 20)
  14. No Qualified Immunity Defense for Florida Beatings (p 20)
  15. Washington Prisoner L & I Statutes Struck Down (p 21)
  16. Twenty Years for Flinging Feces on Texas Guards (p 21)
  17. Injury Report Satisfies Texas Tort Claims Actual Notice Requirement (p 22)
  18. BOP Communion Wine Ban Challenged (p 22)
  19. Psychologist Not Qualifiedly Immune in Prisoner Suicide Suit (p 23)
  20. Texas Guard's Conviction Reversed (p 24)
  21. BJS Summarizes State Sex Offender Registries (p 24)
  22. No Right to Artificial Insemination (p 25)
  23. Texas Pro Se Litigant Entitled to Notice of Hearing (p 26)
  24. ADA Liability Extends to New Jersey County Jail and Vicinage (p 26)
  25. Dismissal for Failure to Allege Physical Injury Improper (p 27)
  26. Head of Counsel for Texas Prisoners Fired (p 27)
  27. Third Circuit Upholds $100,000 Damages Award to Assaulted Pennsylvania Prisoner (p 28)
  28. Prisons Experience Outbreaks of Infectious Disease (p 28)
  29. Ninth Circuit Reexamines Standards for Qualified Immunity at Summary Judgment Stage in California Shooting Case (p 29)
  30. San Mateo County Sues California Jail Phone Service Providers (p 30)
  31. Kosher Diets for Prisoners Upheld in Tenth Circuit (p 30)
  32. Exceptions Made To PLRA Exhaustion Requirement; Discovery Allowed (p 31)
  33. Wisconsin Lacks Authority Over Funds of Out-of-State Prisoners (p 32)
  34. Disciplinary Boards are not "State Courts" Under AEDPA (p 32)
  35. Prison Population Continues to Grow (p 33)
  36. News in Brief (p 34)

Federal Legal Standards for Prison Medical Care

Federal Legal Standards For Prison Medical Care

by Dan Manville

The State is required to provide adequate medical care to those it confines.1 In this time of shrinking budgets, many prison systems have turned to contracting with private health care providers to meet their legal obligations. Some states have turned most of their health care services over to private companies such as Correctional Medical Services, Inc. (CMS), even though CMS's record for providing health care is dismal.2 In Michigan, since CMS has taken control of providing medical care to Michigan's prisoners, the complaints that the author and others have received pertaining to medical care have increased significantly. This article discusses the federal legal standard for providing medical care, what level of care will and will not violate this Federal standard, how private companies or their staff may be liable, and the impact the Prison Litigation Reform Act (PLRA) has on that Federal standard.

A. Eighth Amendment - Deliberate Indifference Standard

Under the Eighth Amendment to the United States Constitution3, prison officials are required to provide prisoners with "reasonably adequate" medical care.4 Courts have defined adequate medical care as "services at a level reasonably commensurate with modern ...

When Prison Officials Don't Respond Administrative Remedies Are Exhausted

The U.S. Third Circuit Court of Appeals has reversed a Pennsylvania Federal District Court's dismissal with prejudice of a prisoner's 42 U.S.C. §1983 claim for failure to exhaust remedies.

William Boyd a prisoner in custody of the Pennsylvania Department of Corrections (DOC). He has been housed in Administrative Custody (AC) at SCI-Graterford since January 1999. Boyd sued DOC officials under 42 U.S.C. §1983 claiming that his initial and continuing confinement in AC violated his First, Eighth, and Fourteenth Amendment rights. He also raised a variety of other conditions-of-confinement claims unrelated to his AC status. DOC moved to dismiss the claims for failure to exhaust administrative remedies. The district court dismissed with prejudice.

Boyd appealed, claiming that the district court erroneously dismissed his custody complaint. The district court evaluated exhaustion under the Consolidated Inmate Grievance Review System rather than Administrative Custody Procedures. Boyd showed that he had attempted to exhaust all remedies related to custody under custody procedures. DOC officials had completely failed to respond. Boyd also argued he should have been permitted to amend his pleadings to prove exhaustion.

At oral argument, DOC conceded that Boyd exhausted available remedies due to their failure ...

Texas Parole Officer Hires Parolee for Murder

In May 2002, Texas Parole Officer Connie Lynn Stones pleaded guilty to charges of solicitation of capital murder after police recorded her trying to hire a hit-man to kill her lover's girlfriend.

Stone was in love with Brett Williams, who had once been under her supervision and she was eager to further their relationship. Her only complication was the presence of the man's former wife. So Stone resolved to have the woman killed.

After meticulously searching her records, Stone settled on Stephen Armistead, newly released from prison, to do her dirty work. When Armistead heard the proposal he became paranoid and went to the police. Police wired Armistead who then set up a meeting with Stone to work out the lurid details of her plan.

"Well, uh, did you have any how you want this done?" asked Armistead. "Do you want me to make it like...a burglary gone wrong, or a drug deal gone wrong or a rape gone wrong?"

"It doesn't matter," Ms. Stone said laughing. "I'm thinking just a drive-by would be the best to me."

Richardson police recorded the entire conversation and arrested Stone as she left Armistead's house ...

From the Editor

Welcome to the thirteenth anni-versary issue of PLN. This marks the 157th issue of PLN that we have published since our first issue appeared in May, 1990. In that time period a lot has happened, both with PLN and the prison system we cover. For one thing, both grew. PLN expanded from a ten page, hand typed, photocopied newsletter with 75 people on its mailing list to its current size, format and circulation. Meanwhile, the American prison and jail population more than doubled to its current size of over two million people imprisoned.

As I write this, U.S. forces have just attacked Iraq. Around the time of PLN's fifth issue in 1990 the U.S. was preparing to attack Iraq for its invasion of Kuwait. The cause of war, U.S. dominance of the world's energy supplies, has not changed. Once the current war is over we can expect to see the incarceration of discharged veterans who fill American prisons after every large conflict. The corporate media has glossed over the fact that since the federal government restored the death penalty in 1988 they have executed three people, two of them Gulf War I veterans.

If American ...

CCA Pays $54 Million to IRS and Settles Gender Discrimination Complaint

On October 28, 2002, Corrections Corp. of America, (CCA) settled its 1997 federal taxes after an audit by the Internal Revenue Service for the sum of $54 million. The IRS challenged the validity of the tax deductions that the former Prison Realty, a real estate investment trust (REIT) had claimed in 1997 tax return. This subsidiary of CCA's was formed in 1997 for the sole purpose of creating corporate tax advantages [See: "CCA Sells Self; Wackenhut Creates REIT," PLN Aug. `98.]

This merger between Prison Realty and CCA was disassembled in 2000 after continually plummeting stock prices because of concerns of a potential conflict of interest by the cooperative association of Prison Realty and CCA. Both companies were located in the same Nashville office and shared the same corporate personal on the board of both companies. This allowed CCA to lease their prison back to themselves with a much more profitable tax break [See: "Prison Realty/CCA Verges on Bankruptcy," PLN July `00.]

CCA expects no effect on its real estate investment trust status, and they foresee an increase in the company's accumulated earnings and profits for 2002. CCA went on to say that they do not expect ...

The Parents' Project: Parent-Child Prison Visitation Issues Raised by Bazzetta, et. al. v. McGinnis, et. al.

by Denise Johnston & Michael Carlin

In 1999, the Michigan Department of Corrections [MDOC] imposed a broad set of restrictions upon parent-child prison visitation. These restrictions included prohibition of visits to prisoners by minor siblings, nieces and nephews, and by children unaccompanied by a parent or legal guardian. After appeal, these prohibitions were determined to be constitutional for contact visits but their application to non-contact visits was challenged and found to violate the constitutional rights of prisoners and prospective visitors. This opinion, by Judge Nancy G. Edmunds of the U.S. District Court in Detroit, was appealed and a temporary stay of enforcement granted in May, 2001; the District Court's order was affirmed by the Court of Appeals for the 6th Circuit in 2002. The U.S. Supreme Court accepted the case and it was argued on March 26, 2003.

Bazzetta raises many important questions regarding incarcerated parents and their families; two are discussed here:

1) What is a parent and how is a parent-child relationship identified?

2) What is the relationship of child custody status to parent-child visitation in the prison?

The answers to each of these questions have major implications for understanding the impact of Bazzetta on families of prisoners in Michigan.

What Are Parents?

Decisions like the one that found the above restrictions to parent-child contact visits to be constitutional are based on a narrow understanding of "parent" as the biological or adoptive mother or father. Prisoners who have lived with and raised but not adopted the biologically-unrelated children of spouses or partners are not parents by this definition. Similarly, prisoners who have taken the parental role and reared minor siblings or other child relatives are not considered their "parents" by the Bazzeta decision and the relationship they have with those children is legally unprotected.

Ironically, in light of ...

Erroneously Released Texas Prisoner Has Right to Street Calendar Time

by Matthew T. Clarke

The Fifth Circuit Court of Appeals held that a Texas prisoner erroneously released on mandatory supervision has a right to calendar time spent on the streetbut not any potential good conduct timefollowing revocation.

Fernando Thompson, a Texas state prisoner, filed a petition for writ of habeas corpus in federal district court after the Texas Department of Criminal Justice refused to credit him with the time he earned while out of prison following his premature mandatory supervision release. The district court denied relief without addressing whether an erroneous release precludes forfeiture of calendar time and good-time credits upon revocation of mandatory supervision. Thompson appealed.

The Fifth Circuit held that neither Texas state law nor federal law requires Texas to credit a prisoner with calendar time accrued while on mandatory supervision. Likewise, the Due Process Clause, which prohibits a state from exceeding a prisoner's sentence in an unexpected manner, does not apply. However, in Ex Parte Morris, 626 S.W.2d 754 (Tex.Crim App 1982) (en banc) , the Texas Court of Criminal Appeals held that "a sentence must be continuous and a prisoner or innate cannot be required to serve his sentence in installments, unless it ...

No Escape: Male Rape in U.S. Prisons: A Human Rights Watch Report by Joanne Mariner

Review by Alex Coolman

In April of 2001, Human Rights Watch released a report called No Escape: Male Rape in U.S. Prison. The report, written by Joanne Mariner, contains dozens of first-hand accounts of prisoner rape and sexual assault, stories that are both horrifying and sobering.

Some of the most frightening passages in the book, though, are not in the main body of the text. They're in the appendix, which features letters that state corrections departments coughed up after Human Rights Watch requested information about sexual assault behind bars.

In the appendix, the reader learns what these corrections departments, despite countless stories of human suffering to the contrary, are still saying about sexual assault.

From the Kentucky Department of Corrections: "These instances are very rare, (but) & we do not maintain a central list of the disposition of these cases."

From the Alaska Department of Corrections: "We, luckily, have no need to keep statistics, as this has not been a problem."

From the Connecticut Department of Corrections: "Our department does not maintain statistics regarding inmate on inmate rape or sexual abuse primarily because it is seldom reported &."

In state after state, the officials running the prisons disavow any knowledge of a problem that, according to the best research on the subject, affects as many as one in five male prisoners.

For that reason, and many others, No Escape is a wrenching book to read. It's also one of the most in-depth, authoritative, and comprehensive books written on the subject of prisoner rape. The book provides a review of the conditions that contribute to prisoner rape _ including the growth of the American prison population in the last 20 years, the privatization of the prison industry, and the crippling of prisoners' legal rights through the Prison Litigation Reform Act of 1996.

No Escape also reviews some of the realities of prisoner rape that are misunderstood by the public: that victims tend to be nonviolent offenders, young people, and first-timers; that victims are sometimes subjected to repeated abuse that can last for years; and that rape victims contract diseases like HIV and often suffer from crippling depression and post-traumatic stress disorder.

All of these facts are brought to life in No Escape through the inclusion of prisoners' first-hand accounts of rape. Human Rights Watch quotes men like B.J. from Connecticut (that peaceful state where rape is "seldom reported," according to ...

Writing to Win

by Steven D. Stark, Broadway Books, 1999, soft back, 283 pages

Review by John E. Dannenberg

Write succinctly! Or, alterna-tively, bore your intended reading audience to death with burdensome legal treatises steeped in excessive, redundant verbosity, liberally laced with old-as-the-hills cliches.

Get it? Writing to Win is a refreshing, practical guide to improving your legal written communications skills. Attacking legal writing as obscure and often self-defeating, former Harvard Law Lecturer Steven Stark offers simple rules from which the reader can learn to avoid common mistakes.

Writing to Win helps you to create effective documents. Simple but often overlooked tools such as outlining and using active rather than passive styles are but two of Stark's ten "rules of the road." You also learn the fine art of editing - eliminating redundancy as well as obscure terms and trite expressions. Sprinkled with humorous examples, the text is particularly instructive because it is fun to read. For example, "Read my lips - no new taxes" was lauded for its direct communications approach - versus a rigorous discourse on tax policies that might have been offered instead.

Writing to Win is neither a grammar manual nor a forms book. It is a presentation guide focusing on ...

Eighth Circuit Reverses Dismissal of Prisoner's Hepatitis C Treatment Claim

The U.S. Eighth Circuit Court of Appeals has reversed and remanded in part a North Dakota Federal District Court's dismissal of a state prisoner's claim that he was denied treatment for hepatitis C.

Dale J. Burke is a prisoner of the North Dakota Department of Corrections and Rehabilitation (NDDCR). Burke has hepatitis C. He sued NDDCR and its health care provider, Medcenter One, under 42 U.S.C. §1983 and the Americans with Disabilities Act (ADA), 42 U.S.C. §12101, alleging that NDDCR and Medcenter One completely denied him treatment for hepatitis C.

The district court, screening the complaint prior to service of process as required by 28 U.S.C. §1915A, dismissed without prejudice for failure to state a claim for relief. The district court did not consider Burke's amended complaint. Burke appealed, abandoning his ADA claims on appeal.

The appeals court held that Burke stated a claim for relief. "Mr. Burke alleged more than a disagreement over the proper course of treatment for his hepatitis C: he alleged that he was denied treatment entirely" and that the basis for the denial of treatment was his prior lawsuits against the NDDCR medical director. Burke ...

Texas Prison Guard Charged with Raping Male Prisoner; Prisoner Files §1983 Complaint

Texas Prison Guard Charged with Raping Male Prisoner; Prisoner Files §1983 Complaint

Nathan Essary, a slightly built 22-year-old prisoner, was gang-raped at the Rogelio Sanchez State Jail near El Paso, Texas. Following the rape, Essary was transferred to the John Montford Psychiatric Facility in Lubbock for treatment. Then, in May 2001, Essary was moved to the O. L. Luther State Prison at Navasota, Texas, where he was assigned to work in the laundry.

Michael Chaney, then a prison guard at Luther, worked as a laundry manager and was Essary's supervisor. Chaney, widely known for sexually harassing prisoners, began paying unwelcome attention to Essary. Although other prisoners had earlier and repeatedly filed grievances and sexual assault complaints against Chaney,

Jerry Barrett, warden at the Luther prison, failed to take reasonable measures to prevent Chaney from continuing his sexually aggressive practices or from inflicting harm on the prisoners under his control.

Chaney continued his inappropriate behavior toward Essary by making sexually charged remarks, kissing him, and grabbing Essary by the buttocks and genitals. Chaney warned Essary that if he complained, he would concoct false disciplinary charges and ruin Essary's chances for parole.

Chaney assigned Essary to work as a janitor ...

Ohio Supreme Court Orders Changes in Parole Board Procedures

On December 18, 2002, in a 6-1 decision, the Ohio Supreme Court ordered a fundamental change in the way the Ohio Adult Parole Board, a division of the Adult Parole Authority (APA), makes parole determinations. The decision may affect the release dates of as many as 18,000 Ohio prisoners.

In 1998, the APA radically revised its parole determination guidelines. The revisions were supposed to bring sentences imposed prior to July 1, 1996, in line with sentences imposed on or after July 1, 1996, the effective date of Ohio's "Truth in Sentencing" law. Sentences under the "old law" (prior to July 1, 1996) are mostly indeterminate, while the later, "new law" sentences are mostly determinate. Under parole board practices, prisoners under the old law usually serve far more time for a crime than prisoners under the new law convicted of the same crime. The revision to the guidelines, however, codified a Parole Board practice that had, up until then, been only informally applied. Under this practice, the Board ignored the offense(s) of conviction and considered all charges against a defendant, including those for which the defendant was indicted, but which were later dismissed or reduced as the result ...

California Pays $1.1 Million in Prison Sexual Harassment Suits

In August 2002, California prison officials agreed to pay a settlement of $400,000 to former guard Terri Sanchez in the latest in a series of suits for aggravated sexual harassment filed by female guards at the California Correctional Center in Susanville. The total amount of settlements and awards over the past two years is $1.1 million. Federal District Judge William B. Shubb said, "Essentially, Sanchez claims that from the moment she began working at the Department of Corrections [CDC] until the moment she left [three and one half years later] ... she was unable to escape from unwanted verbal and physical advances of a sexual nature and was ridiculed because of her gender."

When she complained of the sexual harassment, fellow guards labeled Sanchez a "rat" and a "filer" and ostracized her. Shubb noted that the evidence she presented "suggests that retaliation continued to happen despite the CDC's efforts to investigate and punish alleged retaliatory acts." The stress this caused resulted in Sanchez's taking three stress leaves and ultimately receiving disability retirement because she had become "incapacitated for the performance of her duties ... based upon her psychological condition," according to Cal-PERS.

Fred Johnson, the chapter president of ...

No Qualified Immunity Defense for Florida Beatings

by David M. Reutter

The Eleventh Circuit Court of Appeals has held that prison guards at the Florida State Prison (FSP) who beat prisoner David. C. Skrtich are not entitled to dismissal. Two of the defendants, Timothy A. Thornton and Jason P. Griffis, are the same guards recently acquitted in the Frank Valdez murder. ["Another Murder by Florida Guards, Another Acquittal," PLN, Aug. `02.] Thornton and Grffis appealed the denial of their motion to dismiss on qualified immunity grounds. The other defendants, guards Willie Archie, James E. Dean, Stacey L. Green, and Tony Anderson appealed the denial of their motion for summary judgment on the same grounds.

Skrtich was on close management at FSP as a result of an extensive disciplinary history, including aggravated assault with a deadly weapon for repeatedly stabbing a guard, and had been the subject of several cell extractions in the past. On January 13, 1998 Skrtich refused to vacate his cell so it could be searched. Griffis, Archie, Dean, and Green arrived at Skrtich's cell in riot gear, and Thornton directed them to enter the cell to extract Skrtich. Griffis entered the cell with an electronic shield and shocked Skrtich, knocking him to the ...

Washington Prisoner L & I Statutes Struck Down

Washington Prisoner L & I Statutes Struck Down

The Washington Supreme Court struck down a statutory scheme which denies labor and industries benefits to state prisoners with life sentences and no dependents. RCW 51.32.040(3) and 72.60.102 were declared unconstitutional. because they deny lifers without dependents any monetary compensation for work related injuries, while prisoners with release dates or beneficiaries are compensated for such injuries.

Tony Willoughby and Lennie Cain are both incarcerated at the Washington State Penitentiary in Walla Walla, and neither will be released alive from prison. Neither prisoner has a spouse or other dependent. Both lost fingers in accidents while on prison work details. The Washington Department of Labor and Industries (L&I) valued Willoughby's claim at $10,260.81 but would not assess Cain's disability rating.

The prisoners filed declaratory judgment actions in the Walla Walla County Superior Court challenging the propriety of L&I's denial of benefits for their job-related injuries. On July 25, 2000, the Superior Court found that L&I denied the prisoners their benefits without due process of law, and denied them the equal protection of the law when it refused to compensate them for their injuries. L&I appealed, and the case was certified for direct review in the state Supreme Court.

That court recognized that RCW 72.60.102 entitles prisoners to L&I benefits for prison-job-related injuries but combines with RCW 51.32.060 and 040(3) to stay payment of those benefits until the prisoner is released from prison. If a prisoner has dependents outside the prison, however, such benefits are paid in installments to the dependents while the prisoner remains incarcerated under RCW 51.32.040(3) (c). The effect of these statutes is that lifers without dependents never receive any compensation for injuries sustained while working.

The court applied a three-pronged due process analysis: (1) whether the statutes were aimed at achieving a legitimate purpose; (2) whether the means used were reasonably necessary to achieve that purpose; and (3) whether the statute is unduly oppressive. The court found that denying prisoners compensation for valid job-related injuries simply because they are lifers without beneficiaries violated prongs (2) and (3), thus denied them their property without due process of law.

The court also held that there was no rational basis for the distinction between prisoners with beneficiaries or a likelihood of release during their lifetimes and all others. Thus, the statute was not rationally related to any legitimate purpose and violated the prisoners' right to equal protection of the laws. Thus, RCW 51.32.040 and 72.60.102 were struck down as unconstitutional on both equal protection and due process grounds. See: Willoughby v. Dept. of Labor & Industries, 147 Wn.2d 725, 57 P.3d 611 (Wash. 2002).

Twenty Years for Flinging Feces on Texas Guards

On June 23, 2002, in the first case prosecuted before a jury under a new harassment law, a Texas jury convicted a prisoner of harassment and sentenced him to 20-years in prison.

Jeffery Wayne Wheatly, a 35-year old Texas state prisoner, was indicted for throwing feces and urine on two guards and their clothing in administrative segregation at the TDCJ Hughes Unit on January 25, 2001. Wheatly took his case to a jury, something which has not previously occurred under the harassment statute which was enacted September 1, 1999. Prosecutors enhanced the third-degree felony using Wheatly's prior conviction for aggravated robbery. The jury rejected Wheatly's defense that he was set up by guards and sentenced him to the maximum of 20 years to be served after he completes his aggravated robbery sentence. Prosecutors noted that all other prisoners previously charged under this statute had pleaded guilty.

Source: The Gatesville Messenger

Injury Report Satisfies Texas Tort Claims Actual Notice Requirement

by Matthew T. Clarke

A Texas state court of appeals has ruled that the safety investigation and accident report of an accident in which a prisoner was injured gave the prison system actual notice of the prisoner's claim as required by § 51.014(8).

Brian Edward Simons, a Texas state prisoner, sued the Texas Department of Criminal Justice (TDCJ-ID) and Ron Canon, a TDCJ-ID plumber who was Simons's supervisor, for severe injuries he suffered while using a tractor and mechanical post hole digger as part of a prison work crew. TDCJ filed a plea to the jurisdiction alleging that Simons had not given TDCJ actual notice of the injury within six months of the injury, as required by the Texas Tort Claims Act, Texas Civil Practice and Remedies Code § 51.014(8). The district court denied the plea and TDCJ filed an interlocutory appeal.

The Beaumont court of appeals noted that it was undisputed that Simons failed to give TDCJ formal written notice of the injury. Also undisputed was the fact that TDCJ had actual knowledge of the injury and the identities of the parties involved. On the day of the accident, Canon prepared a "Supervisor Report on ...

BOP Communion Wine Ban Challenged

by David M. Reutter

The Court of Appeals for the District of Columbia has reversed the grant of summary judgment favoring prison officials in a Bivens action filed by Catholic Christian prisoners at the Federal Prison Camp in Pensacola, Florida, which challenged the BOP's rule prohibiting prisoners from receiving Communion Wine during rituals, but "the staff or contract chaplain may consume small amounts of wine for performance of the ritual."

The prisoners practice as part of their religion the Eucharist sacrament, which is called Holy Communion. Communion is administered after a priest consecrates the bread and wine, and the prisoners believe the bread transforms into the body of Jesus Christ and the wine into his blood. The priest can present the wine through several methods, and until the new rule became effective the prisoners received it through intinction method. Intinction is the dipping of the transformed bread into the wine and consuming the bread. The prisoners, in their complaint, stated their belief is its "the command of the Lord Jesus Christ to consume both the bread and wine" during the Eucharist sacrament. Prison officials entered into the record letters from a Catholic nun and the local Bishop, who stated ...

Psychologist Not Qualifiedly Immune in Prisoner Suicide Suit

by John E. Dannenberg

The Sixth Circuit US Court of Appeals ruled that a prison psychologist's awareness of a prisoner's potential for suicide was sufficient to defeat the psychologist's qualified immunity defense in a 42 U.S.C. § 1983 wrongful death civil rights action brought by the prisoner's estate.

Michigan state prisoner Billy Montgomery hanged himself in his cell in the Southern Reception and Guidance Center eight days after being transferred from county jail. His earliest release date for his DUI conviction was only five weeks later.

Norris McCrary, a prison psychologist, was assigned to evaluate Montgomery after a guard had observed him acting despondently in his cell and had removed all sharp objects. McCrary cell-interviewed Montgomery the morning prior to his death. McCrary's notes indicated that Montgomery had suicidal thoughts but no specific plan. He rated Montgomery's suicide risk as "moderate," and put him on suicide watch.

The next morning, David Howell, a physician's assistant, visited Montgomery for a previously scheduled physical examination. Although Montgomery's file didn't contain McCrary's notes, Howell deduced that Montgomery's problem was only fear of other prisoners, and that his apparent suicidal thoughts were ...

Texas Guard's Conviction Reversed

A Texas court of appeals has reversed for retrial the conviction of former Texas City Unit TDCJ-ID guard Charles Melvin Page for sexual assault and impersonating a police officer. Page was convicted of having flashed a badge, claimed he was a cop, and demanded oral sex from a prostitute in 1997. During the trial, evidence of Page having committed two other similar crimes was introduced, supposedly to help prove identity. The court held that identity was not really an issue; therefore the extraneous crimes evidence was inadmissible. See: Page v. State, 88 S.W.3d 755 (Tex.App.-Corpus Christi 2002).

BJS Summarizes State Sex Offender Registries

The Bureau of Justice Statistics (BJS), a division of the U.S. Department of Justice, released a state-by-state summary of the Sex Offender Registries (SOR's) throughout the United States. The report, released in March 2002, compared the states' SOR's in February 2001 to BJS's prior reports in 1998 and 1999. These reports were produced by the National Sex Offender Registry Assistance Program (NSOR-AP), a BJS operation. NSOR-AP helps states participate in the FBI's National Sex Offender Registry (NSOR) and to fulfill the requirements of the Jacob Wetterling Act (Pub.L. 104-145, 110 Stat. 1345), Megan's Law, and the Pam Lyncher act (Pub.L. 104-236, 110 Stat. 3093).

In 1998, there were 263,166 registered sex offenders throughout the United States. In February 2001, the 50 States and the District of Columbia reported 386,112 registered sex offenders, a 47% increase. Different states, however, varied in the number of registered offenders and the percentage increase. These differences were due to several factors, including the number and type of offenses requiring registration, the date of offense requiring registration, and the duration of the registration.

The top 10 states in terms of number of registered sex offenders in ...

No Right to Artificial Insemination

by John E. Dannenberg

The US Court of Appeals for the Ninth Circuit ruled that the right to procreate is fundamentally inconsistent with incarceration, thereby upholding a California state prison policy disallowing a prisoner from sending a sperm specimen to his wife for artificial insemination.

William Gerber, serving 111 years-to-life at Mule Creek State Prison, sued Warden Rodney Hickman under 42 U.S.C. § 1983 alleging Hickman violated his constitutional right to procreate via artificial insemination as well as his equal protection rights. The US District Court (E.D. Calif.) ruled that the fundamental right to marry is circumscribed by incarceration and that there is neither a constitutionally protected right to conjugal visits in prison nor a right to procreate via artificial insemination. See:Gerber v. Hickman, 103 F.Supp.2d 1214 (E.D. Cal. 2000).

The Ninth Circuit at first reversed, holding that the right to procreate is a fundamental protected right. (264 F.3d 882 (9th Cir. 2001)) [Silverman, J. dissenting]. This ruling was then vacated pending en banc review. (273 F.3d 843 (9th Cir. 2001).)

Judge Silverman's decision for the 6-5 divided en banc court instead affirmed the district court. The Ninth Circuit postulated a ...

Texas Pro Se Litigant Entitled to Notice of Hearing

Texas Pro Se Litigant Entitled
to Notice of Hearing

A Texas court of appeals has held that a pro se litigant who files an affidavit of indigence, when seeking to appeal an adverse ruling in a civil case in forma pauperis, is entitled to notice of a hearing on the court clerk's challenge to the affidavit.

Timothy A. Aguilar, a Texas state prisoner, filed a civil suit pro se and in forma pauperis. The district court dismissed the suit for want of prosecution. Aguilar then filed a notice of appeal, an affidavit of indigence, and an Inmate Trust Fund statement. The Harris County Clerk filed a contest of the pauper's affidavit. The district court sustained the challenge to the affidavit, noting that Aguilar "failed to appear" for the challenge hearing. Aguilar then filed an application for a writ of mandamus with the court of appeals complaining that he could not appeal because the district court had denied him the right to appeal as an indigent,

The court of appeals noted that the record did not show that Aguilar had ever been notified of the challenge hearing. Furthermore, the district court's notation that Aguilar had "failed to appear ...

ADA Liability Extends to New Jersey County Jail and Vicinage

The U.S. Third Circuit Court of Appeals, reversing a New Jersey District Court, has held that the Americans with Disabilities Act (ADA) extends to a county jail and to a New Jersey Vicinage that was not, at the time of the complaint, integrated into the state court system.

In September 1994, Ronald Chisolm was arrested in Mercer County, New Jersey on a Pennsylvania bench warrant and booked into the now-closed Mercer County Detention Center (MCDC), a maximum security pretrial detention facility. Chisolm is deaf, communicates primarily through American Sign Language (ASL), reads and writes English poorly, and has limited lip-reading skills.

Upon booking, Chisolm indicated he was deaf. He requested an ASL interpreter and a TDD machine. He also asked that his hearing roommate, Kenneth Knight, be contacted. MCDC officials did none of this, nor did they explain to Chisolm jail rules or the reason for his arrest. Over the next four days, Chisolm, forced to communicate in writing and by lip-reading, was misclassified by MCDC as a suicide risk, an unemployed vagrant, and a medium security risk. Chisolm finally received a TDD when his roommate brought Chisolm's personal TDD to MCDC. Chisolm was also granted television privileges ...

Dismissal for Failure to Allege Physical Injury Improper

Dismissal for Failure to Allege
Physical Injury Improper

The Second Circuit Court of Appeals held that dismissal under42 U.S.C. § 1997e(e) for failure to allege physical injury was improper where a prisoner's complaint requests injunctive and/or declaratory relief and the pleadings do not reveal the nature of damages sought.

New York Department of Correctional Services (DOCS) prisoner Louis Thompson filed three separate civil rights actions against various employees of the Clinton Correctional Facility (Clinton) related to the denial of medications he allegedly needed for epilepsy. Thompson's prayer for relief did not include any damages claims and merely sought the return of the medications and for the court to resolve the issues raised. The court consolidated the actions.

Thompson was later transferred to another DOCS facility but subsequently submitted an affidavit claiming that he continued to be denied his medications. He also filed a document with the court in which he requested $50,000 in damages.

Prison officials moved to dismiss for failure to state a claim and Thompson failed to respond to the motion. The district court dismissed the action because Thompson failed to allege that he was physically injured. Thompson appealed and the court ...

Head of Counsel for Texas Prisoners Fired

In September 2002, the Texas Board of Criminal Justice fired John Fant, head of the State Counsel for Offenders (SCFO), after an investigation revealed that he had lied on a 10-year-old employment application.

In a written statement, the prison board alleged that Fant stated on his 1992 application that he was a licensed attorney "when in fact his license had been suspended in 1987 for failure to pay his bar dues."

SCFO is an independent office charged with representing and aiding indigent prisoners for, among other things, crimes that occur in prison (Texas also has special prosecutors for this); divorce, immigration and civil commitment proceedings; backtime discrepancies; and PDR filings.

David O'Neil, who five years ago left the SCFO office "because of the ethical constraints that [he] had to work under," said that he believed John Fant's firing was just part of the prison board's continuing effort to "chip away" at the SCFO office "with the ultimate goal of either dismantling it or making it totally ineffective."

Prison board officials, however, claim that Fant was fired for clear policy violations. They further allege that in addition to lying on his employment application, Fant filed "false statements in ...

Third Circuit Upholds $100,000 Damages Award to Assaulted Pennsylvania Prisoner

Third Circuit Upholds $100,000 Damages Award
to Assaulted Pennsylvania Prisoner

The U.S. Third Circuit Court of Appeals has upheld the jury verdict and damages award in a Pennsylvania case involving the assault of a state prisoner by guards. [PLN, Sept. `99.]

Gerald Henderson was a prisoner of the ...

Prisons Experience Outbreaks of Infectious Disease

Prisons in Vermont and Pennsylvania dealt with serious outbreaks of infectious disease this past August resulting in the disinfection of an office complex and the filing of a class action lawsuit, respectively.


In late July 2002, an outbreak of Legionnaire's Disease, a sometimes fatal bacterial infection, began in Vermont's Waterbury prison and spread to a surrounding office complex infecting a total of 23 people and prompting efforts to disinfect the complex. Of the 16 most seriously affected by the disease, 14 of which were former prisoners, all but one were out of the hospital as of August 14, 2002. The rambling complex employs and houses more than 1500 people and is home to many state agencies, including the state women's prison.


After an outbreak of colonizing methicillin-resistant staphyloccus aureus, or MRSA, six former or current prisoners at the Bucks County Prison in Doylestown, Pennsylvania, are suing the county for delay and denial of medical treatment. The class action lawsuit, filed in federal court on September 18, 2002, seeks more than $150,000 per prisoner in damages.

In August 2002, several female prisoners contacted attorneys Anita Albert and Martha Sperling and told them they were not ...

Ninth Circuit Reexamines Standards for Qualified Immunity at Summary Judgment Stage in California Shooting Case

by John E. Dannenberg

Amending its earlier decision at 240 F.3d 845 [PLN, June `01], the US Court of Appeals for the Ninth Circuit clarified the evaluation of qualified immunity claims by prison officials at the summary judgment state of a prisoner's Eighth Amendment excessive force civil rights complaint.

Donnell Jeffers, a Black prisoner at California State Prison, Sacramento (CSP-SAC) was shot by guards during a Hispanic-Black melee involving 200 prisoners in CSP-SAC's B-facility yard in November, 1996. Jeffers sued claiming excessive force and racial animus when only one Hispanic was shot while many Blacks were shot.

The prison guards, Warden of CSP-SAC and the Director of the California Department of Corrections (CDC) defended against suit claiming qualified immunity. The concern of the Ninth Circuit was to nail down what standards apply to determine qualified immunity in excessive-force suits.

Originally, the US District Court (E.D, Calif.) had denied defendant's motion to dismiss on qualified immunity grounds, finding that there were triable issues of fact that should go to a jury.

The Ninth Circuit reversed (240 F.3d 845, supra) noting that it had jurisdiction to hear an interlocutory appeal of the denial of a qualified ...

San Mateo County Sues California Jail Phone Service Providers

San Mateo County Sues California Jail
Phone Service Providers

On July 7, 2002, the county of San Mateo, California, brought suit against Pacific Bell and AT&T alleging they cheated the county out of millions of dollars earmarked for a fund supporting prisoner services. The suit, filed in San Mateo Superior Court, seeks restitution of $2.4 million, plus interest.

San Mateo contracted with Pacific Bell and AT&T in 1993 to provide phone service to prisoners in eight separate county jail facilities. Pacific Bell and AT&T were to provide local and long distance service, respectively. Under terms of the contract, the companies were to pay up to 41% of gross revenues to the Inmate Welfare Fund which helps pay for a variety of prisoner services such as substance abuse and educational programs, law libraries, mental health services and recreation equipment.

The county assumed these payments were being paid in full until a 1999 audit revealed problems with the numbers. According to the suit, the audit estimated that Pacific Bell had been underpaying by as much as $600,000 per year. The suit further alleges that Pacific Bell purposely falsified and hid the real numbers, which also affected AT ...

Kosher Diets for Prisoners Upheld in Tenth Circuit

The Tenth Circuit Court of Appeals has upheld the Colorado Federal District Court's permanent injunction directing the Colorado Department of Corrections (CDOC) to provide kosher meals to qualified prisoners in accordance with Orthodox Jewish law and rejected the CDOC's co-pay proposal.

Charles Beerheide, Sheldon Perlman, and Allen Fistell, all prisoners in the Fremont Correctional Facility (FCF) in Canon City, Colorado, filed a §1983 complaint in 1996 alleging a First Amendment Free Exercise of Religion violation by not providing CO prisoners with kosher diets. A preliminary injunction was granted in 1998. See: Beerheide v. Zavaras, 997 F.Supp. 1405 (D.Colo. 1998) [PLN, Dec. `98]. A permanent injunction was then entered in 2000. See: Beerheide v. Suthers, 82 F.Supp.2d 1190 (D.Colo. 2000) [PLN, Mar. `01].

On appeal, the CDOC claims the district court did not apply the four-prong Turner v. Safley, 107 S.Ct. 2254 (1987), test correctly when analyzing the CDOC's policy and co-pay proposal.

In Turner's first prong there must be a legitimate government interest advanced to justify the policy. The CDOC won this prong in the district court yet still claimed error. The Court upheld this prong based on budgetary concerns ...

Exceptions Made To PLRA Exhaustion Requirement; Discovery Allowed

by John E. Dannenberg

Two U.S. District Courts recently made exceptions to the Prison Litigation Reform Act's (PLRA) requirement to exhaust administrative remedies. The Central District of California court ruled that when a prisoner's administrative appeal had been "granted" at an intermediate level, his remedies were deemed exhausted because he had extracted all the relief possible from the administrative process. Separately, the Southern District of New York court ruled that discovery available with respect to formal grievances should be available also as to informal grievances when faced with determining whether a prisoner had actually exhausted his administrative remedies - as he must - before being permitted to maintain a 42 U.S.C. § 1983 civil rights action.

In the California action, state prisoner Charles W. Brady sued prison doctor Attygala and other staff when Brady, whose eye had been injured by his cellmate Darren Coleman in a fight, lost his sight in the eye following inadequate medical care.

Brady, who had complained unavailingly to prison doctors of his declining vision in the injured eye, had to resort to the administrative appeals process to gain the specialized treatment of an ophthalmologist. His appeal was eventually granted at an intermediate level ...

Wisconsin Lacks Authority Over Funds of Out-of-State Prisoners

A federal court in Wisconsin held that the Wisconsin Department of Corrections (WDOC) lacks the authority to divert the funds of an out-of-state prisoner into a release account, or to cause the receiving state to do so.

In 1998, Wisconsin prisoner Anthony Doty was transferred out-of-state to a private prison operated by the Corrections Corporation of America (CCA) in Tennessee.

Doty sought habeas corpus relief alleging that Wisconsin lost its authority to incarcerate him once it shipped him beyond its boundaries. The district court denied Doty's petition and he appealed. In order to pay the $105 appellate filing fee, Doty sought "the return of more than $500 of his money that the [WDOC] previously diverted into a `release account' held in his name[.]"

Wisconsin prisoners have both a general account and a release account. All income is deposited into the prisoner's general account. The release account is created by diverting 15% of each deposit to the prisoner's general account, until the balance reaches $500. The prisoner may request that his release account be deposited into an interest-bearing bank account. WDOC "regulations allow money to be withdrawn from a release account only upon or in preparation for release ...

Disciplinary Boards are not "State Courts" Under AEDPA

Disciplinary Boards are not "State Courts"

The Seventh Circuit Court of Appeals held that prison disciplinary boards are not "state courts" for purposes of 28 U.S.C. § 2254(e)(1). As such, "the state may not benefit from § 2254 (e) (1)'s presumption of correctness in appeals from prison disciplinary proceedings."

Indiana state prisoner Clyde Piggie was issued a conduct report charging him with sexual assault for squeezing a female guard's buttocks as he passed her in a hallway. Piggie allegedly requested that the Conduct Adjustment Board (CAB) view the videotape from the prison's surveillance camera that may have recorded the incident. Prison staff allegedly informed him, however, that the tape could not be viewed without a court order.

During the disciplinary hearing, Piggie denied the charges and again requested that the CAB view the surveillance tape. He also repeated the request in a handwritten statement to the CAB chairman. But the chairman allegedly told him there was no tape. According to the state, the tape no longer existed because it was the prison's policy to reuse the surveillance tapes soon after they were recorded.

Piggie was found guilty of sexual assault and "sentenced ...

Prison Population Continues to Grow

Continuing a trend first noted in 2000, the Bureau of Justice Statistics (BJS), a division of the U.S. Department of Justice, reported that the overall growth rate of the United States' prison population was quite small. In some states, prison populations actually declined. PLN has previously reported on prison population growth [PLN, July `02, page 14]. The bulletin is titled "Prisoners in 2001."

The BJS released its 2001 bulletin on Federal and State prisoners in July 2002. BJS reported that at year end 2001, the United States incarcerated 1,406,031 adults in Federal and State prisons. When prisoners in territorial prisons, Immigration and Naturalization Service facilities, military facilities, local jails, jails in Indian country, and juvenile facilities were counted, the number of prisoners nationwide was 2,100,146 persons at year end 2001.

The States added only 3,193 persons to their prison populations in 2001, a growth rate of about 0.3%. Indeed, overall State prisoners' numbers declined from June 30, 2001, through December 31, 2001. The Federal prison population grew by 11,577 persons in 2001, about 8.0%. Although the Federal prison population did not decline in the last half of 2001, population growth did ...

News in Brief

Afghanistan: In December, 2002, two prisoners being interrogated by US forces at the Bagram base near Kabul were beaten to death by their captors. Prisoners at the base are routinely kept naked, hooded, shackled and deprived of sleep for days on end while being beaten for good measure. The dead prisoners were identified as Mullah Habibuilah, no age given, and Dilawar, 22. The cause of death is listed as "blunt force injuries" and the deaths were classified as homicides by the Pentagon.

California: On February 24, 2003, Kimberly Lewis, 48, a black male guard at the Donovan State Prison in San Diego, was charged with ten counts of sexual assault for forcing an unidentified gay male prisoner to perform oral sex on two occasions in a prison laundry room. The first assault occurred in November, 2001, when Lewis took the victim into the laundry room, locked the door, and told him "You know what you gotta do," as he removed his belt and unzipped his jumpsuit. During the second assault three weeks later, the victim saved a mouthful of Lewis's semen in a towel, which he sent to his sister with a request that she contact a lawyer. Lewis ...


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