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Prisoner Education Guide

Prison Legal News: June, 2003

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Volume 14, Number 6

In this issue:

  1. The Crime of Being Poor (p 1)
  2. Texas Medical Provider Investigated for Mixing, Selling Bodies (p 8)
  3. Wichita Kansas Pays $6.2 Million to Settle Detainees' Lawsuit (p 8)
  4. From the Editor (p 9)
  5. No Termination of Special Parole Upon Deportation (p 9)
  6. The Shame of Prison Health (p 10)
  7. Proof of Actual Rights Violation Required for Attorney Fee Award (p 13)
  8. Habeas Hints (p 14)
  9. Ohio Federal District Court Finds RLUIPA Constitutional (p 16)
  10. YSI: Another Death, Another Settlement (p 17)
  11. New Mexico Supreme court Affirms Dismissal of Phone Rate Suit (p 17)
  12. Texas Tries to Hire Incompetent Doctors to Review Medical Care (p 18)
  13. Retaliatory Prisoner Transfer for Exercising First Amendment Rights is "Adverse Determination" Under the Privacy Act (p 19)
  14. Evidence Suppressed in California Ex-Parolee's Warrantless Search (p 20)
  15. PLRA Not Applied to Attorney Fees, $407,635 for Puerto Rican Prisoners (p 20)
  16. Texas Prisoners Have Limited Right to Appear at Expungement Hearing (p 21)
  17. Washington DOC Settles ADA Suit for $8,000 (p 22)
  18. Seventh Circuit Vacates $1.8 Million Award in BOP Suicide (p 23)
  19. Injunction Allows Legal Mail Between Iowa Prisoners (p 24)
  20. "Atypical And Significant" Hardship Segregation Claim Cannot Be Dismissed Under §1915(e)(2) (p 24)
  21. $345,000 Settlement in Pennsylvania Jail Rape Suit (p 25)
  22. $14 Million Settlement in U.S. Corrections Corporation Pension Plan Suit (p 25)
  23. Guajardo (Texas Prison Mail) Suit Dismissed (p 26)
  24. Alaska Prisoners' Benefits Extended to Arizona (p 26)
  25. Washington Women's Medical Care Consent Decree Ended (p 27)
  26. Ex-Employee Wins $500,000 Religious Discrimination Award Against TDCJ (p 28)
  27. $174,175 Awarded in D.C. Conditions and Medical Suit (p 28)
  28. $250,000 Award for Texas Jail Paraplegic Upheld (p 29)
  29. Hawaii Adopts "Mailbox Rule" in Prisoner Civil Actions (p 30)
  30. New Jersey's Five Percenters an STG and a Religion (p 30)
  31. Mailbox Rule Tolls Statute of Limitations in BOP Medical Suit (p 31)
  32. Incarcerated Father Retains Child Visitation Rights (p 32)
  33. PLRA Physical Injury Requirement Not Applicable to First Amendment Compensatory Damages (p 32)
  34. Third Circuit Holds PLRA Exhaustion Requirement an Affirmative Defense (p 32)
  35. Deposition Testimony Not Hearsay; Expert Must Satisfy Daubert in BOP Van Accident (p 33)
  36. News in Brief (p 34)
  37. Beaten Philadelphia Prisoner Gets $125,000, Two Guards and Warden Get Time (p 36)

The Crime of Being Poor

"The law in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread."


_ Anatole France


A central part of the mythology of the criminal justice system in the United States is that everyone is treated equally, regardless of his or her race or class. The concept that no one is above the law is a noble one. Like many good ideas, reality usually lags far behind the rhetoric.


Recent years have seen a growing criticism of the criminal justice system on the flawed premise that that the system itself is racist. Proponents of this position support their argument by pointing to statistics that show that black men make up 6% of the national population but almost half of the nation's prison population. Or that at any given time one third of the U.S. population of black men is under criminal justice control, either in prison, jail, probation or parole. (See David Cole's No Equal Justice for a detailed overview of this position.) The end result: a stunning and disproportionately large percentage of black men under criminal justice control, is taken as prima ...

Texas Medical Provider Investigated for Mixing, Selling Bodies

Texas Medical Provider Investigated For Mixing, Selling Bodies


Officials at the University of Texas Medical Branch in Galveston (UTMB) are investigating the improper handling of at least 78 bodies donated to the Willed Body Program, which uses them for education and research. UTMB provides medical services to 80% of prisoners in Texas.


On January 24, 2002 the body of Liz McCaskill's husband was donated to the Willed Body Program, but it took her 3 months to get a death certificate, and even then the medical center couldn't account for her husband's remains. Finally, on June 28, 2002, UTMB officials informed Ms. McCaskill that her husband's body had been cremated, together with at least one other body, and the ashes probably mixed with the cremated remains of many others. "They gave me a box of ashes and they said part of him might be there, but there's 69 other people there with him," said Ms. McCaskill.


The FBI is investigating the possibility that the former supervisor of the Willed Body Program's anatomical services, Allen Tyler Jr., sold body parts from the donated corpses for his own profit. Possible links have been raised between Tyler, who ...

Wichita Kansas Pays $6.2 Million to Settle Detainees' Lawsuit

Wichita Kansas Pays $6.2 Million
to Settle Detainees' Lawsuit


On May 7, 2002, Wichita's City Council approved $6.2 million to be awarded to the 7,000 citizens who had their 14th Amendment rights violated. The suit filed by what the city has labeled as Municipal Court Scofflaws ...

From the Editor

Observant readers will have noticed that PLN's masthead has changed its message from "Working to Extend Democracy to All" to "Dedicated to Protecting Human Rights." As PLN enters its fourteenth year of publishing and advocacy on behalf of prisoners, we think this change more accurately reflects the actual work PLN is doing. While democracy is an admirable goal, we may have been setting our sights too high.


By focusing on human rights, a much more basic and fundamental issue, we hope to highlight the fact that for far too many of the more than two million people imprisoned in American jails and prisons, the carcereal experience means brutality, beatings, rape, extra-judicial murder, censorship, religious suppression or religious imposition, degrading and inhumane conditions, untreated or poorly treated medical needs, political disenfranchisement, slave labor, racial and gender discrimination and financial exploitation. It's hard to aspire to democratic rights when such basic and fundamental rights and needs are routinely violated and the daily existence in prison and jail consists of a struggle to survive. It is also difficult if not impossible to try to overcome drug and alcohol addictions, mental illness, illiteracy or otherwise try to rehabilitate oneself in such an ...

No Termination of Special Parole Upon Deportation

No Termination of Special Parole
Upon Deportation


In a case of first impression, the Second Circuit Court of Appeals has held that a term of special parole does not terminate upon the parolee being deported to his home country. Antonio Cuero-Flores appealed his sentence of 71 months after entering a guilty plea to having been found in the United States after having been deported. He argued the District Court erred in calculating his criminal history category by applying a two-point enhancement for violation of a lifetime special parole term because that term expired when he was deported.


The Second Circuit rejected this argument. The Court found Cuero-Flores was sentenced to 180 months and the lifetime special parole term for possession with intent to distribute cocaine. The penalty for Cuero-Flores's conviction in 1985 differs from that applicable today. At the time of conviction, 21 U.S. C. §841 (b)(1)(B) (1981) required imposition of a special parole term of at least 2 years when there is no prior conviction, and at least 4 years with a prior conviction. Special parole was created in 1970 as a mandatory additional penalty for all drug offenses, and affected crimes committed before October ...

The Shame of Prison Health

A report is sitting at the Justice Department, unpublished. It has been there for three years. Titled The Health Status of Soon-to-be-Released Inmates, it was compiled by experts who sat on three panels: one on communicable diseases, one on chronic diseases and a third on mental illness. Their findings are, to say the least, somewhat startling. Estimating that 11.5 million Americans cycle in and out of jail or prison each year (the great majority of them short-term jail inmates), the report suggests that more than 18 percent of hepatitis C virus (HCV) carriers in the country pass through the jail or prison system annually, as do 8 percent of those with HIV and one-third of those with active tuberculosis TB). Six percent of incoming inmates, according to the report, show evidence of recent syphilis infection, 6 percent have chlamydia and up to 4 percent have gonorrhea. Experts believe that for these diseases, the infection rates (the number of cases per 100,000) among prisoners are upward of ten times those found in the American population as a whole.


"It's clearly a public health issue," says Ted Hammett of the Boston-based research group Abt Associates. "These people find themselves ...

Proof of Actual Rights Violation Required for Attorney Fee Award

The Ninth U.S. Circuit Court of Appeals, affirming the decision of a California Federal District Court, has held that a prisoner cannot be awarded attorney fees for winning a temporary restraining order (TRO) if the prisoner did not subsequently prove "an actual violation" of his civil rights.


Jaturun Siripongs, a California prisoner executed by the State on February 9, 1999, sued the State in October 1998, under 42 U.S.C. §1983, claiming Eighth and Fourteenth (due process) Amendment violations in his clemency hearing. Siripongs asked for declaratory relief on his claims, a preliminary injunction (PI) on his execution until he had been granted a new clemency hearing, and a TRO preventing his execution until he had a hearing on the PI. The district court granted the TRO, but at a subsequent hearing denied the PI, based on California's assurances that the execution would not be rescheduled until a new clemency hearing was held, meeting Siripong's objections.


A new clemency hearing was held in January 1999. Governor Gray Davis denied the application, and Siripongs was executed. The district court dissolved the §1983 action. Siripongs' counsel filed for attorney fees. The district court denied fees, holding that although ...

Habeas Hints

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


STANDARD OF REVIEW II:


AEDPA "DEFERENCE" TO STATE COURT DENIALS


In the last "Habeas Hints" column, I discussed the differing "standards of review" which apply throughout the criminal process in general and on habeas corpus in particular. It is important to understand, however, that the standards of review covered in the last column only come into play after the federal court has decided to hear the habeas corpus claim on the merits (that is, having decided that the federal claim is not barred by the AEDPA statute of limitations or by some state procedural bar) but before the federal court has decided how much "deference" to give to the previous denial of the habeas claim in state court as a part of the exhaustion process. In this column we look at this latter aspect of "standard of review", namely the amount of "deference" (respect, or reliance) that is due under the ...

Ohio Federal District Court Finds RLUIPA Constitutional

In a case of first impression in the Sixth U.S. Circuit, the Federal District Court for the Southern District of Ohio has refused to dismiss Ohio prisoners' religious rights claims based on the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§2000cc, et. seq. The court instead found RLUIPA constitutional.


The plaintiffs in three consolidated cases are all current or former prisoners of the Ohio Department of Rehabilitation and Correction (DORC). In the lead case, John Gerhardt, a former prisoner, is an ordained minister of Church of Jesus Christ Christian (CJCC), a group within the racist Christian Identity movement. In the second case, J. Lee Hampton is a practicing Wiccan, and Jon B. Cutter practices Satanism. In the third case, John Miller and others follow the Asatru religion, a polytheistic, Northern European religion, also known as Odinism, Vor Tru, and Troth.


In each case, plaintiffs sued under 42 U.S.C. §1983, alleging First Amendment religious rights violations, including denial of access to religious literature or materials necessary for the practice of their religion, denial of religious services, denial of freedom to dress or appear in conformity to their religion, denial of a prison chaplain ...

YSI: Another Death, Another Settlement

Youth Services International (YSI), a company already under fire for a multitude of problems, including contract violations, financial mismanagement, prisoner mistreatment and prisoner deaths, was again in the news this past September. YSI, a subsidiary of Corrections Services Corporation, operates juvenile prisons, including boot-camp-style facilities, in a number of states ...

New Mexico Supreme court Affirms Dismissal of Phone Rate Suit

New Mexico Supreme Court Affirms Dismissal of Phone Rate Suit


The New Mexico Supreme Court affirmed a district court's dismissal of an excessive phone rates case for failure to state a claim. Recipients of collect telephone calls from New Mexico jails and prisons brought suit for damages and injunctive relief against state, county and city defendants and several telephone service companies. Plaintiffs alleged that "Defendants entered into illegal agreements in which the telephone service companies were granted exclusive rights to provide collect telephone service at a higher rate than rates provided to the public. Plaintiffs argue that in return for entering into these agreements, the government correctional facilities received a commission paid by the telephone service providers that was calculated on the amount billed to the service provider from collect calls placed by inmates in their facilities."


The district court granted defendants' motions to dismiss for failure to state a claim, under the filed rate doctrine, the primary jurisdiction doctrine and sovereign immunity. Plaintiffs appealed and the court of appeals certified the matter to the New Mexico Supreme Court.


The Supreme Court concluded "that the district court properly dismissed plaintiffs' claims for damages under the filed rate doctrine, primary ...

Texas Tries to Hire Incompetent Doctors to Review Medical Care

by Matthew T. Clarke


In October, 2002, Chancellor of the University of Texas (UT) System Mark Yudof asked Texas Health Commissioner Eduardo Sanchez to appoint a three-member panel of experts "with laudable records in correctional health care" and without ties to UT, UT Medical Branch (UTMB) in Galveston (which provides health care services to 80% of the 146,000 Texas prisoners) or the prison system to conduct an evaluation of prison health care. This was prompted by increasingly vocal concerns being voiced by prisoners, their families, prisoners' rights advocates, and public officials about the deterioration of prison health care. [See PLN, Dec. `02 and indexes for further information on this subject.]


Yudof gave Sanchez a list of possible candidates compiled by or with the assistance of UTMB officials. The list included Dr. Gail Williams, whose medical license has been revoked in two states and six other questionable doctors.


In 1985, the Michigan Board of Medicine revoked Williams's license and refused reinstatement requests in 1987, 1989 and 1990, after finding him guilty of having sex with a patient and fraudulently billing her insurance company by listing the sexual encounters as therapy. In 1990, Williams received a restricted Oklahoma license which ...

Retaliatory Prisoner Transfer for Exercising First Amendment Rights is "Adverse Determination" Under the Privacy Act

Retaliatory Prisoner Transfer for Exercising First Amendment Rights is "Adverse Determination" Under the Privacy Act

by Bob Williams


The Court of Appeals for the DC Circuit has held that the reclassification and transfer of a federal prisoner in retaliation for exercising his First Amendment rights constitutes an "adverse determination" under the Privacy Act.


Latchmie Toolasprashad, a federal prisoner in Allenwood, Pennsylvania, was transferred to a facility in Marianna, Florida, and reclassified as a "special offender." At Allenwood, Toolasprashad excelled in his work as a GED and college tutor, was near his seriously ill parents for visits, and was near "staff representatives" who could testify on his behalf before the parole board. Guards harassed Toolasprashad, intimidated him, forced him from his job, and ridiculed his Hindu heritage. In response, Toolasprashad filed administrative grievances and contacted public officials about this treatment. He was then reclassified as a "special offender" and transferred based on a transfer memorandum falsified by guards and relied upon by the Bureau of Prisons (BOP). This stress caused Toolasprashad to become seriously depressed, have difficulty sleeping, and develop an eating disorder.


Toolasprashad filed suit against the BOP under the Privacy Act (PA), 5 U.S.C. §552a, which provides ...

Evidence Suppressed in California Ex-Parolee's Warrantless Search

Evidence Suppressed in California
Ex-Parolee's Warrantless Search

by John E. Dannenberg


The California Supreme Court held that evidence seized by a police officer accompanied by the ex-parolee's parole officer during a warrantless search of the ex-parolee's motel room must be suppressed under the Fourth Amendment. The good faith exception to the exclusionary rule did not apply because its intended deterrence value was not apparent here.


Gary Wayne Willis was discharged from parole by the California Department of Corrections (CDC) on June 29, 1995. However, a CDC data entry clerk apparently never recorded the discharge on the statewide parole register. On March 27, 1996, Bakersfield California narcotics officer Joseph Mullins got a tip regarding suspicious activity in Willis' motel room. First checking CDC records, Mullins determined that Willis was an ex-con with narcotics priors. A check of the "parole book" showed Willis to be on parole. Mullins confirmed this with CDC parole agent Diane Mora, who then joined Mullins in a warrantless parole search of Willis' room.


When Willis answered the door, he said he was not on parole and presented his discharge card. Nonetheless, Mullins was able to see into the room through the open door and ...

PLRA Not Applied to Attorney Fees, $407,635 for Puerto Rican Prisoners

PLRA Not Applied to Attorney Fees,
$407,635 for Puerto Rican Prisoners


A federal district court in Puerto Rico has denied the defendant's motion for new trial in an excessive force case, and awarded attorney fees and costs to the plaintiffs. The jury entered a verdict in favor of ...

Texas Prisoners Have Limited Right to Appear at Expungement Hearing

Texas Prisoners Have Limited Right to Appear
at Expungement Hearing

by Matthew T. Clarke


Guadalupe Guajardo, Jr., a Texas state prisoner, filed a motion to expunge the record of two of his prior arrests pursuant to Articles 55.01 and 55.02, Texas Code of Criminal Procedure. Although Guajardo filed a petition for a writ of habeas corpus ad testificadium to attend the hearing, the district court held a hearing without ruling on the writ petition and with only a prosecutor present. The prosecutor claimed that there had been indictments in both cases, but they had been dropped because Guajardo's parole had been violated and he was about to return to prison. No evidence of the indictments was entered into the record. The district court denied the motion on the ground that Guajardo did not qualify for expungement. Guajardo appealed.


The court of appeals held that the district court erred when it denied Guajardo an opportunity to participate in the hearing. Texas prisoners have no absolute right to appear in person at a hearing. However, they do have the right to participate in the hearing. Often this can be done by affidavit, deposition, or telecommunication. A proper analysis of ...

Washington DOC Settles ADA Suit for $8,000

In July 2002, Washington State Department of Corrections (DOC) officials agreed to pay Roger Smith and his disabled wife Laurie $8,000 to settle their lawsuit under 42 U.S.C. § 12132 et seq, Title II of the Americans With Disabilities Act (ADA).


Roger Smith arrived as a prisoner at ...

Seventh Circuit Vacates $1.8 Million Award in BOP Suicide

by Mathew T. Clarke


The Seventh Circuit Court of Appeals has reversed a case in which the survivors of a federal prisoner who committed suicide in jail received a $1.8 million award, rendering judgment in the government's favor.


Robert Johnson, the deceased prisoner, was incarcerated for six months in a federal jail, the Metropolitan Correctional Center in Chicago. after having been arrested for extortion. The longer he spent in jail, the worse Johnson's psychological condition became. Toward the end, he appeared nervous, unstable, and worried. He stayed up at night retching and brushing his teeth until his gums bled. He didn't eat or sleep well and kept poor hygiene. He spent a great deal of time by himself and became more and more isolated as time went on. Most obvious of all his symptoms was that Johnson picked at his skin until it caused sores which festered and never healed causing all his bed sheets to become bloody messes.


Other prisoners made guards aware of these problems multiple times, asking them to get Johnson help. Johnson's cellmate finally talked him into seeking help and filled out a sick call request, complaining of sores due to ...

Injunction Allows Legal Mail Between Iowa Prisoners

The U.S Court of Appeals for the 8th Circuit recently upheld a preliminary injunction enjoining Iowa prison officials from interfering with prisoner-to-prisoner legal mail. The U.S. District Court for the Southern District of Iowa imposed the injunction to ensure the prisoners' right of access to the courts was observed.


Until July 1, 2001, the Iowa State Penitentiary (ISP) allowed prisoners to assist each other with legal matters. Jailhouse lawyers were allowed to correspond with prisoners they were helping, who lived in the same unit. On July 1, 2001, however, a new ISP policy took effect. The new policy prohibited jailhouse lawyers from helping others litigate and banned all legal correspondence between prisoners. Under the new policy, prisoners had to deal with attorneys provided by ISP.


When the new policy took effect, Archie Bear, William Stringer, Michael McBride, and Romeo Hardin, all ISP prisoners, were in various stages of seeking post-conviction relief from their criminal sentences. They all filed actions challenging the policy under 42 U.S.C. § 1983, contending their rights to communicate with others and to access the courts had been violated.


The prisoners presented uncontroverted evidence that ISP's contract attorneys ignored their requests for consultation ...

"Atypical And Significant" Hardship Segregation Claim Cannot Be Dismissed Under §1915(e)(2)

"Atypical And Significant" Hardship Segregation Claim Cannot Be Dismissed Under §1915(e)(2)


The Tenth Circuit Court of Appeals has found that a claim that 75 days in punitive segregation is atypical and significant cannot be dismissed by the district court sua sponte under 28 U.S.C. §1915(e)(2) for failure to state a claim, without further analysis.


Michael Gaines, a Kansas state prisoner, received two disciplinary violations in February 2001. He was found guilty in March and sentenced to a total of 75 days in punitive segregation. Gaines' appeal was upheld in April and he served the entire 75 day sentence.


Gaines later won a reversal in state court and filed a subsequent §1983 action alleging violations of his Fourteenth Amendment due process rights and seeking damages. Upon initial review pursuant to in forma pauperis statute 28 U.S.C. §1915(e)(2), the district court dismissed the complaint for failure to state a claim.


On appeal, the Court held that the "atypical and significant" standard established in Sandin v. Conner, 115 S.Ct. 2293 (1995), was at the summary judgment stage after careful examination of the prisoner's confinement. Conversely, the district court here dismissed Gaines ...

$345,000 Settlement in Pennsylvania Jail Rape Suit

$345,000 Settlement in Pennsylvania
Jail Rape Suit


On September 11, 2002, Bucks County, Pennsylvania, agreed to settle a federal lawsuit brought by seven female county jail prisoners who were raped by male jail staff by paying them $345,000. The rape of female prisoners at the facility had been ...

$14 Million Settlement in U.S. Corrections Corporation Pension Plan Suit

In accordance with a July 29, 2002 ruling by U.S. District Judge Jennifer B. Coffman, as many as 700 former guards who worked at private prisons in Kentucky operated by U.S. Corrections Corp. could share in settlement of $14 million or more. In her 49 page opinion, Coffman ...

Guajardo (Texas Prison Mail) Suit Dismissed

by Matthew T. Clarke


On September 24, 2002, a federal district court in Texas dismissed the long-standing class-action lawsuit which has governed the mail system in Texas prisons for twenty-five years. The Guajardo suit resulted in three published opinions (432 F.Supp. 1373, 580 F.2d 748, and 568 F.Supp. 1354), and regulated prisoner mail in Texas prisons. Defendants had filed a motion to terminate the prospective relief pursuant to the PLRA, 18 U.S.C. § 3626 which the court granted.


The most important point made by the court was that the termination of relief does not vacate the consent decree. "When a court terminates a consent decree under the PLRA, the effect is to end prospective relief. The consent decree itself is not vacated. As one circuit court has explained, `while terminating a consent decree strips it of future potency, the decree's past puissance is preserved and certain of its collateral effects may endure."'


... "By contrast, vacating a consent decree `wipes the slate clean, not only rendering the decree sterile for purposes, but also eviscerating any collateral effect and, indeed, casting a shadow on past actions taken under the decree's imprimatur.'" Thus, the consent decree continues ...

Alaska Prisoners' Benefits Extended to Arizona

The Supreme Court of Alaska sustained a lower court's ruling which provisionally allowed Alaska prisoners to be transferred to an Arizona prison, required the Arizona facility to comply with Alaska's prison overcrowding settlement agreement, and found the Alaska prisoners' challenge to the process of selecting individuals for transfer to Arizona to be moot.


In 1981, Alaska prisoners filed a class-action lawsuit complaining of overcrowding and prison conditions in general. In 1990, the parties executed a settlement agreement and designated a superior court judge to have continuing jurisdiction over alleged violations.


Thereafter, Alaska's prison population grew beyond allowable limits and the state contracted with Corrections Corporation of America (CCA) to house Alaska's overflow prisoners in a CCA-owned facility in Arizona. CCA's facility purportedly met American Correctional Association's standards but fell short of incorporating the rights and benefits secured by the 1990 settlement agreement.


Michael Cleary, acting for all Alaska prisoners, challenged the constitutionality of the selection-transfer process and asked the trial court to enjoin the transfer of prisoners to Arizona. The court found that the selection process met constitutional muster and denied Cleary's motions for injunctions, but it ordered that the transfers would be ...

Washington Women's Medical Care Consent Decree Ended

The Ninth Circuit Court of Appeals upheld a district court's refusal to extend the terms of a consent decree under the Prison Litigation Reform Act (PLRA). The court also held that the district court improperly declined to consider plaintiffs' motion for contempt.


In 1993 prisoners at the Washington Corrections Center for Women filed a class action suit in federal court alleging that prison health care violated the Eighth Amendment. [PLN, Apr., Jul., Oct. `94]. In 1995 the parties entered into a consent decree requiring defendants to implement changes in the prison's health care policy. The district court's jurisdiction was to terminate automatically on January 12, 1999 unless jurisdiction was extended in accordance with the decree.


To obtain an extension of the decree, plaintiffs were required to serve defendants with written notice of the intent to do so. The notice was required to identify with particularity the areas defendants allegedly had not complied with.


Plaintiffs gave timely notice of their intent to seek an extension of the mental health and dental provisions of the decree but failed to address any other medical services at the prison. Plaintiffs' counsel later informed defendants that a more specific notice would be ...

Ex-Employee Wins $500,000 Religious Discrimination Award Against TDCJ

The Texas Department of Criminal Justice (TDCJ) will appeal a half-million dollar judgment against it in favor of an ex-employee who claims she was forced to retire early after complaining of religious discrimination.


Vicki Allen-Curry, an ex-employee, sued TDCJ and Richard Watkins, warden of the Holiday Unit claiming she was ...

$174,175 Awarded in D.C. Conditions and Medical Suit

The United States District Court for the District of Columbia has denied motions by the District of Columbia Department of Corrections (DC DOC) for judgment as a matter of law and for new trial following a jury verdict finding the DC DOC liable for Eighth and Fourteenth Amendment violations in ...

$250,000 Award for Texas Jail Paraplegic Upheld

by Matthew Clarke


The Fifth Circuit Court of Appeals has upheld a $250,000 award against Dallas County, Texas, for a paraplegic prisoner who developed life-threatening decubitus ulcers due to the jail's deliberate indifference to his serious medical needs.


Brent Lawson, a former prisoner in the Dallas County Jail ...

Hawaii Adopts "Mailbox Rule" in Prisoner Civil Actions

Hawaii Adopts "Mailbox Rule" in Prisoner Civil Actions


The Hawaii Supreme Court reinstated a prisoner's appeal in a civil action. The prisoner timely gave his notice of appeal to prison guards, who did not mail it until after the filing period had run. The State Supreme Court adopted the "mailbox rule," holding the notice of appeal filed when it was handed to prison guards.


Vincent Setala was a prisoner at the Halawa Correctional Facility on the island of Oahu, Hawaii. His personal injury action against J.C. Penney Co. was dismissed on September 22, 1999. His notice of appeal was dated October 17, 1999 but was not received by the court until November 5, 1999. Setala complained that he gave the notice to guards in a timely manner, which should be reflected by a time/date stamp on the envelope, but no such envelope was attached to the notice of appeal. The appeal was dismissed, and Setala appealed to the State Supreme Court.


The State Supreme Court compared Hawaii Rule of Appellate Procedure, HRAP 4(a), to its federal counterpart, FRAP 4(a), and determined that both require the filing of a notice of appeal within 30 days of ...

New Jersey's Five Percenters an STG and a Religion

by David M. Reutter



The Third Circuit Court of Appeals has affirmed a New Jersey federal district court's grant of a motion for summary judgment in separate 42 U.S.C. §1983 actions filed by prisoner's Joel Fraise, Alexander Kettles, and John Harris. Their suits challenged the constitutionality of a New Jersey Department of Corrections (NJDOC) policy that allows prison officials to designate "security threat groups" (STG), transfer core members of these groups to a special housing unit (SHU), and keep them there indefinitely.


The policy identifies a prisoner as a core member if he has a documented status of satisfying one or more of the following conditions: (1) an STG member; (2) has taken part/role in an activity, behavior, or involvement in an event/incident associated with an STG; (3) the prisoner's activity, behavior, or involvement in an event/incident that poses a threat to the safety of the staff, other prisoners, or the community; caused damage to, or destruction of property; caused interruption of the safe, secure, and orderly running of the prison; (4) identified as an STG member and been found guilty of a serious disciplinary infraction. Once placed in SHU, core members ...

Mailbox Rule Tolls Statute of Limitations in BOP Medical Suit

The Sixth Circuit Court of Appeals held that, pursuant to the mailbox rule of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379 (1988), a prisoner's medical malpractice action was filed as of the date he delivered it to prison officials for mailing.


Federal prisoner Joe Richard was diagnosed with prostate cancer. On March 17, 1998, Edward Ray Jr., MD, performed prostate surgery on Richard at Samaritan Hospital in Kentucky.


Richard alleged that he suffered an injury to his rectum during the surgery, which Ray repaired. A catheter was inserted into Richard's bladder for drainage during the surgery. After the operation the catheter was removed and another was inserted. The second catheter was removed on April 8, 1998.


"Following the surgery, Richard experienced pain in his back and difficulty urinating. Richard alleged that pus formed around the catheter, his urine contained blood and clots, and he suffered clammy wet skin, chills, itching rash and blisters on his back.'" Catheters were again inserted into Richard's bladder on April 2, 1999, and May 8, 1999, to drain the bladder and provide pain relief. Upon subsequent examination, a three-inch portion of catheter was discovered in Richard's bladder ...

Incarcerated Father Retains Child Visitation Rights

The Arizona Court of Appeals recently held that an incarcerated father had a right to visits with his infant daughter, absent proof that such visitation would harm the child.


Michael M. is the father of Corianna M. Both Michael and Corianna's mother lost their parental rights when they were incarcerated for credit card fraud. Michael subsequently requested visitation with his daughter at the Pima County Jail where he was confined. The superior court denied his motion, stating that it did not "believe it's in the best interest of the minor child for her to go to jail to visit her father." The court reached this decision without any evidence that jail visits would harm Corianna and despite the fact that her guardians consented to the visits.


Michael appealed the ruling. The appellate court began its analysis by noting that parents have a fundamental, constitutionally protected right to the companionship of their children that does not evaporate once they are incarcerated. Rather, an incarcerated parent may only be denied visitation where there is evidence that the jail visits would harm the child. Because there was no evidence that Corianna would be harmed by visiting Michael at the Pima County ...

PLRA Physical Injury Requirement Not Applicable to First Amendment Compensatory Damages

PLRA Physical Injury Requirement Not Applicable To First Amendment Compensatory Damages


A federal district court in New York has held that the Prison Litigation Reform Act's (PLRA) prohibition against seeking damages for mental or emotional injury without a showing of physical injury does not apply to First Amendment violations nor does it have a restrictive effect for declaratory or injunctive relief. Wayne Ford, a New York state prisoner, was denied a religious diet and sought redress for a First Amendment violation under 42 U.S.C. §1983. The District Court dismissed Ford's damage claims for mental anguish and Ford filed a motion to reconsider this ruling. On reconsideration, the Court granted the motion in part holding that while Ford may not seek damages for mental anguish, he could seek compensatory damages for alleged First Amendment violations.


The Court found that 42 U.S.C. §1997e(e), applies only to damage actions, and thus "has no restrictive effect for declaratory or injunctive relief." The Court reviewed other circuit decisions and concluded that "it cannot be said that section 1997e(e) nullifies the First Amendment by permitting constitutional violations to go unremedied." Thus, while this PLRA section "does apply to ...

Third Circuit Holds PLRA Exhaustion Requirement an Affirmative Defense

Third Circuit Holds PLRA Exhaustion Requirement
an Affirmative Defense

by Bob Williams


The Third Circuit Court of Appeals has found that the PLRA's exhaustion requirement is an affirmative defense to be pled by the Defendant. A district court may not dismiss an action on its own for failure to exhaust administrative remedies nor may it require a plaintiff to demonstrate exhaustion in the initial pleading.


Frederick Ray was a prisoner at the Pennsylvania State Correctional Institution (PSCI) at Huntingdon when he was twice assaulted by guards. When Ray threatened to sue, the guards "retaliated by filing groundless misconduct charges." All charges but one were dismissed at Ray's disciplinary hearing. While PSCI regulations prevent appeals of not guilty verdicts, Ray appealed his remaining conviction which was upheld by the Chief Hearing Examiner.


Ray filed a §1983 complaint and affirmatively answered the exhaustion questions on the pre-printed form indicating he had exhausted administrative remedies. Before the defendants were served, the district court dismissed the complaint for failure to demonstrate exhaustion of administrative remedies pursuant to 42 U.S.C. §1997e(a). The Court also noted that "any appeal from this order will be deemed frivolous, without probable cause and not ...

Deposition Testimony Not Hearsay; Expert Must Satisfy Daubert in BOP Van Accident

The Seventh Circuit Court of Appeals held that a district court erred in failing to make findings of fact on critical issues, excluding the deposition testimony of a prisoner as hearsay, and in failing to conduct a Daubert hearing to determine the qualifications of the plaintiff's expert witness.


A prison van was carrying four federal prisoners and a chase car trailed the van for security. During stop-and-go driving on a congested road, the chase car hit the van. One of the prisoners in the van, Timothy Ueland, filed suit under the Federal Tort Claims Act.


Prison officials indicated that "the relative speed of the collision was between 5 and 10 miles per hour, all prisoners had been wearing seat belts, no injuries ensued, and the van (which suffered no damage from the impact) drove to its destination." Ueland, however, claimed that "none of the prisoners had been secured with a seat belt, and he was thrown violently by a high-speed impact into the `cage' at the front of the van. Ueland contends that he suffered back and neck injuries that have caused him great pain."


"Ueland's testimony at trial was supported by a chiropractor and in part by ...

News in Brief

Arkansas: On March 25, 2003, Fulton county jail prisoners Bobby Woodrum and Brian Shanckle, both 19, escaped from the jail by handcuffing a female jail guard to a chair, stealing guns and ammunition and running off in the jail's jeep. They were recaptured without incident ten hours later.


Brazil: On February 17, 2003, 400 prisoners at the Agostinho de Oliviera Junior Penitentiary in Unai took two guards hostage and killed four prisoners who opposed the rebellion. After 33 hours the hostages were released when prison officials agreed to meet their demands of reviewing certain sentences, transferring some prisoners to other prisons and to allow more conjugal visits between prisoners and visitors during carnival, a pre Lenten festival.


California: On march 14, 2003, Lancaster prison guard Dwayne Brewton was arrested on conspiracy charges after prison investigators, acting on an informant's tip, searched a drug pick up point Brewton was using and recovered 39 grams of marijuana, a gram of heroin and 3.5 grams of crack. On February 26, 2003, an unidentified guard who worked in the prison's property room, was suspended when he approved delivery of a package containing 7.8 pounds of marijuana to a prisoner ...

Beaten Philadelphia Prisoner Gets $125,000, Two Guards and Warden Get Time

Beaten Philadelphia Prisoner Gets $125,000,
Two Guards and Warden Get Time

by Matthew T. Clarke


On May 1, 2002, two guards and an assistant warden were convicted in federal court of charges relating to the beating of a Philadelphia prisoner. In the latest of a series of settlements for ...

 

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