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Prison Legal News: May, 2003

Issue PDF
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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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.


Vermont


In late July 2002, an outbreak of Legionnaire's Disease, a sometimes fatal bacterial infection, began in ...

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 ...

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 ...

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 ...

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 ...

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 ...

Disciplinary Boards are not "State Courts" Under AEDPA

Disciplinary Boards are not "State Courts"
Under AEDPA


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 ...

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 ...

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 ...