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Prisoner Education Guide

Prison Legal News: July, 2003

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Volume 14, Number 7

In this issue:

  1. Beaten Philadelphia Prisoner Gets $125,000, Two Guards and Warden Get Time (p 1)
  2. Compensating the Wrongly Convicted, or Not (p 1)
  3. Veterans' Disability Check Unlawfully Seized to Pay State Restitution Fine (p 4)
  4. Dallas Police Convicted of Framing Drug Defendants, DA Refuses to Help Innocent Prisoners (p 5)
  5. California Prison Guards' Attorneys Convicted in Dog Mauling (p 6)
  6. Kansas Tobacco Smuggling Conviction Upheld (p 7)
  7. From the Editor (p 7)
  8. Mississippi Pays $6 Million for Empty Prison Bunks (p 8)
  9. Over 100 Prisoners Exonerated Through DNA, Government Cuts Funding (p 10)
  10. $35,000 Settlement in New York Jail Cell Door Injury (p 11)
  11. Arkansas Prison Must Pay for Kosher Meals (p 11)
  12. HIV Infections, AIDS Deaths Down in U.S. Prisons (p 12)
  13. No Right to Renounce Citizenship - U.S. Not "at War" (p 12)
  14. Injunctive Relief Ordered to Fix ADA Violations in California Parole Hearings (p 14)
  15. Eighth Circuit: BOP Prisoners Have No Liberty Interest in Visits (p 15)
  16. Compelled Oral Sex Satisfies PLRA's "Physical Injury" Requirement (p 16)
  17. $240,000 Settlement in Florida Juvenile Boot Camp Suicide (p 16)
  18. Secretly Recorded California Jail Phone Conversations May Be Used to Convict (p 17)
  19. California Ad Seg Requires Opportunity to Present Views, Gang Debriefing Upheld (p 17)
  20. Appointment of Counsel in New Jersey Medical Suit (p 18)
  21. Texas Guard Stabbing Prisoner Not State Action Under § 1983 (p 18)
  22. Washington Supreme Court Reverses Parole Revocation for Failure to Record Hearing (p 19)
  23. Joinder of Georgia Annual Parole Hearing Injunction is Rejected (p 20)
  24. Trial Required in Death of Mentally Ilil Nevada Detainee, 9th Circuit Reverses Summary Judgment (p 20)
  25. Joinder of Georgia Annual Parole Hearing Injunction Is Rejected (p 21)
  26. Expert Testimony Required to Prove Causation (p 21)
  27. $22,500 Award Upheld in Texas Gang Assault Set-up by Guards (p 22)
  28. Guard's Prior Misconduct Wrongly Excluded from Rape Trial (p 22)
  29. Arizona Governor Must Personally Decide Prisoner Clemency Denials (p 23)
  30. BOP Ban on R-Rated Movies Challenged (p 23)
  31. Favorable Termination Rule Inapplicable to Conditions Claims (p 23)
  32. Gov. Ryan's Song (p 24)
  33. Illinois Governor Commutes All Death Sentences (p 25)
  34. Gay Bashing Illinois Guards to Pay $65,000 for Savage Beating (p 26)
  35. Houston Crime Lab Closed, Prisoner Freed (p 26)
  36. Washington Guards Shoot Now, Ask Questions Later (p 27)
  37. Prompt Mental Health Services Ordered for Arkansas Pretrial Detainees (p 28)
  38. Alabama DOC Settles Mental Health Class Action (p 29)
  39. California Governor Has Carte Blanche in Denying Lifer Paroles (p 30)
  40. No Qualified Immunity When Denying Pain Medication (p 31)
  41. U.S. Supreme Court Upholds Sex Offender Registration Laws (p 32)
  42. Habeas Granted in BOP Good Time Case (p 33)
  43. News in Brief (p 34)
  44. No Administrative Exhaustion in Idaho Child Support Modification (p 35)
  45. Consultants Do Not Insulate Officials from Kosher Diet Liability (p 36)
  46. $13 Million Approved for Study of Prisoner Rape (p 36)

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 assaults on prisoners by staff, the prisoner received $125,000 from the City of Philadelphia.


Donti "Pumpkin" Hunter, 22, had been convicted of running a 34-member drug ring in the impoverished Mantua neighborhood of Philadelphia and was serving a federal sentence on March 11, 1999, when Reginald Steptoe, a guard at the jail, allegedly found a bag of marijuana in a container of talcum powder during a surprise cell shakedown. Hunter grabbed the bag and ran into an adjoining cell. After locking himself into the cell, Hunter flushed the incriminating evidence down the toilet.


The nineteen year-old had no idea what would transpire when Steptoe and other guards extracted him from the cell. The severe beating Hunter received resulted in federal indictments against Steptoe, 38, and three other guards: Cornell Tyler, 39; Albert Payne, 39; and Anthony Black, 33, for conspiracy to violate civil rights and deprivation of civil rights. Deputy Warden Glen Guadalupe, 40, was indicted for two counts of obstruction ...

Compensating the Wrongly Convicted, or Not

by Matthew T. Clarke

Hundreds of thousands of men and women are hidden from society—social failures convicted of felonies—behind concrete walls and razor wire in isolated parts of our country. Nestled among them are society's silenced victims—the wrongfully convicted.

Society is loath to admit its mistakes. Citizens would rather believe the police are trustworthy than accept they plant evidence. The community would rather believe that a criminal was captured and brought to justice than a crime remains unsolved. Prosecutors who have publicly accused a person of a crime are reluctant to admit a mistake. Indictments and press releases are the life-blood of public officials.

This bias is further magnified when a series of similar crimes occurs, causing community pressure on police, judges, and prosecutors to find and convict someone—anyone. Harried prosecutors manipulate police, forensic experts, and other witnesses to conform their testimony to the desired outcome. All this leads to conviction of the innocent along with the guilty. Once convicted, this injustice is seldom undone.

It is uncomfortable to believe that innocent people are in prison or worse—executed. Therefore, prosecutors, police, witnesses, judges, juries, victims and the media join in a great festival of ...

Veterans' Disability Check Unlawfully Seized to Pay State Restitution Fine

by John E. Dannenberg


The Third Circuit US Court of Appeals held that a New Jersey statute providing for seizure of a prisoner's federal veterans' disability benefits check to pay a state restitution fine was void because federal law protecting those benefits preempted state law. The court further held that such seizure without notice or a hearing violated due process rights, and that the prisoner's rights _ including claims for related retaliation - were enforceable under 42 U.S.C. § 1983.


Vincent M. Higgins, a partially disabled US Army veteran, received a ten year sentence and a $1,000 victim restitution fine in New Jersey state court for aggravated sexual assault. While incarcerated at the Adult Diagnostic and Treatment Center (ADTC) in Avenal, NJ, he was sent a $7,608 federal check for veterans disability benefits. ADTC staff declined to follow their normal endorsement/deposit procedures to put Higgins' money into his prison trust account, but rather demanded he first sign over $1,000 to pay his fine. Higgins refused, instead authorizing disbursement of the $7,608 in the form of checks to payees of his own choosing - not including the state restitution fund. He further wrote ADTC Asst ...

Dallas Police Convicted of Framing Drug Defendants, DA Refuses to Help Innocent Prisoners

by Matthew T. Clarke


In April, 2000, former Dallas police officers Quentis Roper and Daniel Maples were convicted of extorting more than $125,000 from drug dealers and illegal immigrants and falsifying evidence against those who refused to pay. Senior Cpl. Mark Delapaz and officer Eddie Herrera were placed on administrative leave after additional false arrest allegations surfaced.


Enrique Alonso, an informant, pleaded guilty on September 6, 2002, to conspiring to plant fake drugs on innocent people after it was discovered that the "narcotics" from numerous drug busts was crushed pool chalk or gypsum. He faces 41 to 51 months in federal prison. Two other informants connected to the scandal had already pleaded guilty.


Thomas Wayne Williams, a falsely accused drug defendant who had been sentenced to life in prison, received a commutation of his sentence from the Texas governor. At least two other falsely convicted prisoners with lengthy sentences received similar commutations.


The Dallas District Attorney's Office has dismissed more than 80 pending cases involving fake drugs. Many were dismissed because the defendants' testimony was needed to convict Roper and Maples. However, the DA's office did not seek out all of those who had been convicted, citing ...

California Prison Guards' Attorneys Convicted in Dog Mauling

On March 21, 2002, a San Francisco, California husband and wife attorney team, Robert Noel and Marjorie Knoller, who for years had defended prison guards at maximum security Pelican Bay State Prison (PBSP), were themselves convicted of manslaughter when their two 120 lb. Presa Canario dogs attacked and chewed to death a lesbian neighbor in the hallway of their upscale Pacific Heights condominium complex in January, 2001.


At trial, a lurid interconnection was exposed revealing that the dogs had been attack-trained at a training camp hired by their actual owners - Aryan Brother affiliated life prisoners at PBSP - one of whom the attorneys had lately adopted in a rare adult adoption procedure. Yet a new twist emerged in October, 2002, when the attorneys were implicated in complicity with guards and guards' union (CCPOA) officials in the alleged earlier murders of targeted prisoners at PBSP by Aryan Brotherhood gang members. Two of the same guards were then convicted in federal court of conspiring to violate the civil rights of the victim prisoners; one of the guards had already served four years in prison for similar state convictions.


Attorney Marjorie Knoller was taking Bane and Hera, two Presa Canario dogs (a Spanish breed ...

Kansas Tobacco Smuggling Conviction Upheld

The Kansas Supreme Court upheld Audra Watson's conviction for smuggling tobacco into the county jail in Pratt County, Kansas. That court rejected Watson's argument that the statute under which she was convicted, KSA § 21-3826, was unconstitutionally vague and could not be applied to convict her of smuggling tobacco into the jail.


In April 2000, Watson was caught sliding an envelope under a door at the jail. The envelope contained ten Camel Cigarettes. Prisoners at the jail were given written notice that tobacco was prohibited, there was a "No Smoking" sign outside the jail entrance, and there was a sign listing items that could be given to jail prisoners, which did not include tobacco products. Watson was convicted of smuggling contraband into the jail, under KSA § 21-3826 et seq, and given probation. She appealed the conviction, contending that the statute was unconstitutionally vague because it did not list tobacco as contraband which could trigger a conviction under that statute.


The Kansas Supreme Court recognized that a criminal statute is unconstitutionally vague if it does not notify possible violators of what conduct is punishable, with sufficient clarity that an average person would understand what conduct it forbids. That court concluded ...

From the Editor

As PLN goes into its fourteenth publishing year, we have expanded our size to 40 pages to bring readers more information about prison and jail issues than ever before. Despite a prison and jail population at an all time high of more than two millions people imprisoned, the state of the prison press is in perilous decline. In the 1970's and 80's, dozens of publications around the country reported on prison and jail issues. California alone had at least six. Today, very few publications report on prison and jail issues from a prisoner perspective. All too often the only news that emanates from prisons and jails is press releases issued by prison officials.


Likewise, no other publication covers prison and jail litigation on a national scale from the plaintiff's perspective. If you like what you read in PLN and believe in the role of the prison press I hope you can help support it financially. PLN relies almost exclusively on its readers and individual donors to continue our publishing mission. By now subscribers should have received a fund-raiser mailing from PLN requesting your support. Simply put, we rely on you, our readers, to continue publishing as we ...

Mississippi Pays $6 Million for Empty Prison Bunks

Mississippi Pays $6 Million For Empty Prison Bunks

by Matthew T. Clarke


In a highly politicized move, the Mississippi Legislature passed a budget paying Wackenhut Corporation (WC) and Corrections Corporation of America (CCA) millions of dollars for unneeded private prison bunks, despite Mississippi Governor Ronnie Musgrove's attempts to prevent it. At issue is how to house Mississippi's 19,000 plus state prisoners.


Faced with $1.4 million in federal court ordered fines due to overcrowding, Mississippi contracted with private companies to build and run five private prisons in Marshall, Leflore, and Wilkinson Counties, Meridian and Walnut Grove.


In 2001, amid criticism that new prisons were increasingly bring viewed by local officials as a tool for economic development, Musgrove vetoed efforts to build even more private prisons. However, the Legislature overrode Musgrove's veto, appropriating $6 million more than was needed to run the private and regional prisons. Subsequently, a report by a legislative watchdog lowered the number of prisoners required for private and regional prisons to break even. This led critics to accuse the government of paying for "ghost prisoners" as a form of corporate welfare [PLN, Nov. `01].


In 2002, state spending on prisons and lack of ...

Over 100 Prisoners Exonerated Through DNA, Government Cuts Funding

Bruce Godschalk became a free man on February 14, 2002,after fifteen years of incarceration for a crime he refused to admit to. In May, 1987 he was convicted in Philadelphia for the rape of two women and indecent exposure of a third. Two of these women identified Godschalk, as their assailant. A fellow prisoner also reported that Godschalk admitted his guilt in these crimes to him. The prosecution brought further incriminating evidence against Godschalk when they revealed to the jury a taped confession to police. Godschalk was found guilty of the crimes.


Despite the confession, which he claimed was coerced, Godschalk maintained his innocence and asked for DNA testing. Montgomery County District Attorney Bruce L. Castor Jr. refused the request because of the taped confession.


The Innocence Project at the Benjamin N. Cardozo School of Law in New York City represented Godschalk in this case. In 1997, a U.S. District Court judge allowed the DNA testing. Godschalk was denied parole for not admitting to the crime. He kept maintaining his innocence even if it meant staying behind bars. Godschalk went on to say: "That was Detective Saville's confession, not mine, I was tricked. I was intimidated. He ...

$35,000 Settlement in New York Jail Cell Door Injury

On November 25, 2002, the New York City Department of Corrections settled a prisoner's personal injury suit by agreeing to pay $35,000. Rasheed Bolden was a 24 year old prisoner in the Rikers Island Jail. On October 22, 1994, a jail lockdown was instituted and Bolden's finger ...

Arkansas Prison Must Pay for Kosher Meals

Arkansas Prison Must Pay For Kosher Meals


The Eighth Circuit Court of Appeals has affirmed an order of the United States District Court for the Eastern District of Arkansas ordering the Arkansas Department of Corrections (ADC) to provide a Jewish prisoner with money to purchase kosher food.


Kelvin Ray Love, a Jewish prisoner, sued ADC under 42 U.S.C. §1983 for violations of the First Amendment and Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§2000cc, et. seq., in failing to provide him with kosher meals. Following a bench trial, the district court found for Love and ordered the ADC to supply detailed information on its plan to provide Love with kosher food. In the interim, ADC was ordered to deposit $15 weekly into Love's prison account so that he could purchase prepackaged kosher foods from commissary.


ADC appealed, claiming that the Eleventh Amendment prohibited such awards. The Court of Appeals distinguished Love's case from the cases cited by ADC, holding that the "remedy targets a continuing constitutional violation; it does not make Love whole based on a past wrong." It was not an abuse of discretion nor violation of the Eleventh Amendment ...

HIV Infections, AIDS Deaths Down in U.S. Prisons

Acquired Immune Deficiency Syndrome (AIDS), the fearsome, incurable disease caused by Human Immunodeficiency Virus (HIV), is far more prevalent in prison populations nationwide than it is in the general, non-incarcerated population throughout the United States. At the end of the year 2000, 52 out of every 10,000 prisoners had confirmed AIDS, compared to 13 out of every 10,000 persons in the general U.S. population. The rate of AIDS-related deaths among prisoners, though, is lower than the AIDS-related death rate in the general population.


This information was reported October 2002 in a bulletin released by the Bureau of Justice Statistics (BJS), a division of the U.S. Department of Justice. The good news, according to the BJS, was that the number of prisoners who were known to be HIV positive or confirmed to have AIDS declined for the first time since HIV and AIDS in prison began to be measured in 1991. Even better, the number of AIDS-related deaths among state prisoners declined 80% from the peak of 1,010 AIDS-related deaths in 1995. The number of AIDS related deaths in the federal prison system rose slightly. During the year 2000, 174 state prisoners and 21 federal prisoners ...

No Right to Renounce Citizenship - U.S. Not "at War"

No Right to Renounce Citizenship - U.S. Not "at War"

Judge Bernice B. Donald of the United States District Court for the Western District of Tennessee has denied habeas corpus relief to a Wisconsin prisoner seeking to renounce his citizenship and be deported to another country. In so doing, Judge Donald deflated a popular prison myth about state sovereignty.


James T. Koos is a Wisconsin prisoner housed under contract in a Tennessee prison run by the Corrections Corporation of America (CCA). Koos sought release through habeas corpus arguing that by transferring him out of state, Wisconsin had surrendered its authority over him. Further, Koos filed motions demanding that he be permitted to renounce his citizenship under 8 U.S.C. §1481(a)(5) (renunciation before a U.S. consular officer in a foreign country) or 8 U.S.C. §1481(a)(6) (written renunciation to U.S. Attorney General when the U.S. is at war).


The court discussed in detail what it termed "a popular myth among prisoners that a state's authority over a prisoner ends at the state's geographical border." As the court noted, "the myth appears to have sprung from a few cases early [last ...

Injunctive Relief Ordered to Fix ADA Violations in California Parole Hearings

by John E. Dannenberg


The Ninth Circuit US Court of Appeals upheld a December 1999 district court decision (USDC, N.D. Calif.) granting injunctive relief to the class of all California state prisoners and parolees having specified disabilities who are subject to proceedings conducted by the California Board of Prison Terms (BPT). The district court had concluded after a bench trial that the class "presented overwhelming and uncontradicted evidence that the BPT regularly, consistently and as a matter of routine practice ... violat[ed] the Americans with Disabilities Act (ADA) and section 504 [of the Rehabilitation Act of 1973 (RA), 29 USC §794], and, in many cases, violate[d] the right of class members to due process."


Governor Gray Davis and the Youth and Adult Correctional Secretary Robert Presley were also held liable in their supervisory capacities over the BPT. The prospective injunctive relief ordered accommodation of ADA and RA mandates at all future BPT parole hearings conducted at state prison or county jail facilities.


The findings of fact were "shocking" to the district court, a situation made worse by the BPT defendants giving no indication that they even understood the nature or the gravity of the problems. Many of the ...

Eighth Circuit: BOP Prisoners Have No Liberty Interest in Visits

by Matthew T. Clarke


The Eighth Circuit court of Appeals held that the suspension of a prisoner's visitation rights with his wife and two other women for eighteen months was not a significant and atypical hardship and therefore did not implicate a liberty interest.


While a federal prisoner at FPC-Fort Nellis, Allen B. Ware received a series of visitors: his wife and two other women. Some of the visits were due to the misuse of extra prison visit passes. Shortly thereafter, Ware was caught with contraband: "all the elements of a `surf and turf' dinner: five freshly cut steaks, one four-pound box of frozen shrimp, four one-pound packages of linguine, one 375 ml bottle of Cuervo Tequila, one 375 ml bottle of Hennessy Cognac, and one 375 ml bottle of Azile Passion Fruit Cognac."


Ware received notice of a disciplinary violation and had a hearing before the Unit Disciplinary Committee (UDC). The UDC referred the charges to the Disciplinary Hearing Officer who sanctioned Ware with loss of good-time and a disciplinary transfer. Three weeks later, the warden concluded that, "for the safety of the institution and to avoid security threats" (like decent food) Ware's visitation privileges with his ...

Compelled Oral Sex Satisfies PLRA's "Physical Injury" Requirement

The United States District Court for the Northern District of Florida, denying a defendant's motion for partial judgment on the pleadings, has held that compelled oral sex constitutes "physical injury" for purposes of the Prison Litigation Reform Act's (PLRA's) requirement that a prisoner must allege a physical injury to recover damages, 42 U.S.C. §1997e(e).


Richard Kemner, a Florida Department of Corrections (DOC) prisoner, repeatedly informed DOC Captain Hemphill that he was threatened and harassed by fellow prisoners and requested to be moved. Captain Hemphill refused to move Kemner.


On May 30, 1998, a prisoner named Upshaw forced Kemner to perform oral sex on him. As a result, Kemner "suffered physical pain, cuts, scrapes, and bruises, ... mental anguish, fright, and shock, embarrassment, humiliation and mortification," permanent psychological injury, vomiting, and prolonged shock. After transfer to another prison for protection, Kemner sued Hemphill under 42 U.S.C. §1983, claiming violation of his Eighth Amendment rights in Hemphill's failure to protect him.


Hemphill sought dismissal of Kemner's damages claims. Hemphill argued that the oral sex was "analogous to body cavity searches performed upon inmates by prison officials." Body cavity searches do not state a ...

$240,000 Settlement in Florida Juvenile Boot Camp Suicide

Although described as a troubled kid, 16-year old Chad Franza didn't deserve to die they way he did. Only 24 days after entering a juvenile boot camp in Bartow, Florida, the teenager was found dead after hanging himself with his boot laces in 1998. Now Franza's parents have ...

Secretly Recorded California Jail Phone Conversations May Be Used to Convict

by John E. Dannenberg


The California Supreme Court held that jail detainees' unprivileged (non-attorney) phone conversations and visits may be secretly recorded and that that information may be used to convict. This ruling, which reversed a 1982 decision holding such recording by the prosecutor to be misconduct, was based upon an intervening 1994 statutory amendment to California Penal Code (PC) §§2600, 2601, commonly known as the Prisoners' Bill of Rights.


Christine Loyd was convicted of arson and two counts of first degree murder. Unbeknownst to her, while awaiting trial in county jail, her telephone conversations with non-attorney visitors were recorded - at the request of the district attorney. Thus, pre-trial conversations with three visitors at the jail and with two persons via outside telephone were taped for the purpose of "gathering evidence."


Loyd's challenge was grounded in the California Supreme Court's decision in DeLancie v. Superior Court (1982) 31 Cal.3d 865, wherein such recordings were ruled to constitute prosecutorial misconduct. DeLancie relied upon then recently amended CA PC §§2600 and 2601, which protected prisoners' rights subject only to the limitation of "providing for the reasonable security of the institution." Such evidence collection, the DeLancie court noted, did not ...

California Ad Seg Requires Opportunity to Present Views, Gang Debriefing Upheld

In an unpublished opinion, the Ninth Circuit Court of Appeals held that due process requires that prisoners be afforded a meaningful opportunity to present their views to the critical decision maker in administrative segregation cases. The court also held that requiring prisoners leaving Security Housing Units (SHUs) to go through a "debriefing process" does not violate their privilege against self-incrimination.


California prisoner Carlos Castro was informed that he was being investigated on charges of being a gang "member." Subsequently, "he was . . . validated and confined to the Security Housing Unit (SHU) for being a gang "associate.'"


Castro brought suit against prison officials alleging various violations of his constitutional rights in connection with his SHU placement. The district court granted summary judgment to prison officials and Castro appealed.


Citing Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994); and Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir. 1990), the Ninth Circuit noted that "(d]ue process entitles a prisoner to an opportunity to present his views to the critical decisionmaker responsible for the administrative segregation decision." The court then held that although "Castro is not entitled to a formal judicial hearing or the full range of due process ...

Appointment of Counsel in New Jersey Medical Suit

The U.S. Third Circuit Court of Appeals has vacated and remanded a New Jersey U.S. District Court's award of summary judgment against, and denial of appointment of counsel to, a pro se prisoner plaintiff.


Jeffrey Montgomery, a New Jersey State prisoner now incarcerated at Riverfront State Prison, filed suit against Correctional Medical Services (CMS) and several administrators of the East Jersey State Prison under 42 U.S.C. §1983, alleging violations of his Eighth Amendment rights by deliberate indifference to a serious medical need. Montgomery is HIV positive and has serious heart problems. All of his complaints arose while he-was incarcerated at East Jersey State Prison.


In March 1996, Montgomery was scheduled for cardiac catheterization to be performed in May. This order was given by a cardiologist who examined Montgomery after he complained of chest pains. At that time, Montgomery was also on antiviral medication for HIV. In April 1996, CMS took over management of all New Jersey prison medical care. CMS admittedly lost all of Montgomery's medical records during the takeover. Because of the lost records, Montgomery's cardiac catheterization was not performed, and CMS discontinued his anti-HIV medication for ten months.


Montgomery tried repeatedly ...

Texas Guard Stabbing Prisoner Not State Action Under § 1983

The Fifth Circuit Court of Appeals held that a guard's actions in cutting a prisoner with a knife was not under color of state law for purposes of 42 U.S.C. § 1983.


Texas prisoner Fred Townsend was working as a "Kennelman" caring for the guards' tracking dogs. Lieutenant Mark Hill was in charge of the guards who supervised prisoners working in the field. According to Townsend, everytime Hill and Townsend interacted, they played "come on," and referred to each other as "my bitch" or "whore."


"On July 23, 1996, Hill and Townsend began to play `come on.' Townsend winked at Hill and said `I'll be your bitch,' and then went into the kitchen to make a sandwich. Hill approached Townsend from behind with his pocketknife in hand, saying `I told you I was going to get you, whore.' Townsend jumped, reached behind him, and realized he had been cut or stabbed on his buttocks. Hill laughed at what had happened, and offered to take Townsend to the infirmary. Townsend declined to go to the infirmary, and instead applied `horse liniment' to himself. Townsend filed a complaint with Internal Affairs. Hill was eventually terminated . . . for his actions. Although ...

Washington Supreme Court Reverses Parole Revocation for Failure to Record Hearing

The Washington Supreme Court recently reaffirmed its well-settled rule that parolees need not establish prejudice when challenging the Indeterminate Sentence Review Board's ("ISRB") parole decisions based on procedural violations. Because the Court of Appeals erroneously required a showing of prejudice in order to obtain relief for such a violation, the Supreme Court reversed the lower court's decision and ordered the ISRB to conduct a new hearing.


In 1981, Kenneth Mines was convicted of second degree murder and sentenced to life in prison. The ISRB set his minimum term at 20 years. Mines was paroled in May 1998 and, as a condition of release, was required to participate in out-patient drug and alcohol treatment. He enrolled in such a program at the Lakeside Milam Recovery Center.


Approximately six month later, Mines was terminated from the Lakeside program for allegedly making unwanted sexual advances toward several female patients. Because this conduct constituted a parole violation, Mines' parole was suspended pending a parole revocation hearing.


At the revocation hearing conducted on November 23, 1998, the ISRB heard testimony from five witnesses, including the two women Mines allegedly harassed. Mines was found guilty of several parole violations, resulting in a parole revocation ...

Joinder of Georgia Annual Parole Hearing Injunction is Rejected

The Eleventh Circuit US Court of Appeals rejected the attempt of a Georgia life prisoner to use the mechanism of joinder (Fed.RulesCiv.Proc. Rule 20(a)) to gain the benefit of another life prisoner's injunction providing for annual parole consideration hearings.


James Swan, a Georgia life prisoner who was not receiving parole considerations on an annual basis, filed under F.R.Civ.P. Rule 20(a) to join the earlier 42 U.S.C. § 1983 injunction of Georgia lifer prisoner C.T. Akins that provides for Akins to have annual hearings. Akins had won such injunctive relief based upon an ex post facto argument. See: Akins v. Snow, 922 F.2d. 1558 (11th Cir. 1991) [PLN, Aug. 1991, p.7]. Seeking enforcement of his injunction in a second suit, Akins won a consensual permanent injunction in August, 2001.


When Swan moved to join this second suit, the Eleventh Circuit rejected his action on three grounds. First, the court ruled that Swan didn't have a right to join the second suit because he was not a party to the first suit. That is, because he never personally gained injunctive relief first, he could not bootstrap such relief by ...

Trial Required in Death of Mentally Ilil Nevada Detainee, 9th Circuit Reverses Summary Judgment

The Ninth Circuit Court of Appeals held that summary judgment was improperly granted on the question of whether a County was deliberately indifferent to a pretrial detainee's mental illness while he was in custody at the county jail.


Stephen Gibson suffered from manic depressive disorder, and in January, 1996, he entered into a manic phase. His wife called police several times in an effort to locate him and have him hospitalized for his manic condition. On February 3, 1996, Washoe County, Nevada, deputies took Gibson into custody, believing that he was intoxicated. Upon searching his vehicle, deputies found several prescription medication bottles with Gibson's name on the label. One deputy assumed they were "psych meds" and that Gibson might not be taking his medication. A nurse at the jail confirmed "that the medications were to stabilize somebody who was suffering from mental illness."


Upon his arrest and while in jail Gibson became physically combative. In the jail Gibson was sprayed in the face with pepper spray and several deputies dragged him into a "special watch cell." Gibson continued to struggle with the deputies who attempted to restrain his arms and legs while he lay face down. At some ...

Joinder of Georgia Annual Parole Hearing Injunction Is Rejected

The Eleventh Circuit US Court of Appeals rejected the attempt of a Georgia life prisoner to use the mechanism of joinder (Fed.RulesCiv.Proc. Rule 20(a)) to gain the benefit of another life prisoner's injunction providing for annual parole consideration hearings.


James Swan, a Georgia life prisoner who was not receiving parole considerations on an annual basis, filed under F.R.Civ.P. Rule 20(a) to join the earlier 42 U.S.C. § 1983 injunction of Georgia lifer prisoner C.T. Akins that provides for Akins to have annual hearings. Akins had won such injunctive relief based upon an ex post facto argument. See: Akins v. Snow, 922 F.2d. 1558 (11th Cir. 1991) [PLN, Aug. 1991, p.7]. Seeking enforcement of his injunction in a second suit, Akins won a consensual permanent injunction in August, 2001.


When Swan moved to join this second suit, the Eleventh Circuit rejected his action on three grounds. First, the court ruled that Swan didn't have a right to join the second suit because he was not a party to the first suit. That is, because he never personally gained injunctive relief first, he could not bootstrap such relief by ...

Expert Testimony Required to Prove Causation

The Eighth Circuit Court of Appeals held that a Missouri prisoner who suffered a stroke after being deprived of medication for hypertension for a month could not recover absent expert medical testimony on causation.


Willie Robinson, a sixty-four year old man with a history of hypertension was convicted of drug ...

$22,500 Award Upheld in Texas Gang Assault Set-up by Guards

$22,500 Award Upheld in Texas Gang Assault Set-Up By Guards

by John E. Dannenberg


The Fifth Circuit US Court of Appeals affirmed a district court's denial of defendant prison officials' summary judgment motion in a prisoner suit alleging the guards had orchestrated a gang assault against him. It ...

Guard's Prior Misconduct Wrongly Excluded from Rape Trial

The Ninth Circuit Court of Appeals held that the exclusion of evidence of a guard's prior improper sexual conduct against a former detainee warranted reversal.


On Friday, January 31, 1997, Julie Ann Blind-Doan turned herself in to the Taft City Police after being told the police were looking for her on a child neglect charge. She was booked and held in the local jail.


"Sometime early Saturday morning, [Doan] repeatedly and noisily called out for needed toiletries." Sergeant Sanders responded and according to Doan "entered her cell, told her he was going to teach her a lesson, overpowered her, and inserted his police baton into her vagina."


Doan brought suit against Sanders. Prior to trial "Doan listed seventeen witnesses who would testify to other, assertedly relevant acts of Sanders. All of it was excluded in limine on motion by the defendant." The jury deliberated for two and one-half days before returning a verdict for Sanders.


On appeal, the Ninth Circuit noted that Doan's prior acts evidence included the testimony that Sanders had previously attempted to get a female prisoner to have sex with him in exchange for letting her go free. Doan also offered "testimony as to Sanders ...

Arizona Governor Must Personally Decide Prisoner Clemency Denials

The Arizona Supreme Court held that the governor must personally and timely decide denials of unanimous Clemency Board recommendations to commute prisoners' sentences under that state's Disproportionality Review Act. In one case, after finding the governor had not so acted, an Arizona man was released from prison.


In 1990, Kevin McDonald was sentenced to life in prison with no chance of parole for 25 years. He received that sentence for committing an aggravated assault with a golf club while on parole, pursuant to ARS § 13-604.02 (mandatory life sentences for persons committing felonies using dangerous instruments while on felony probation).


In 1994, realizing that the mandatory life sentences in that statute were often too harsh, the Arizona legislature amended the statute (persons committing felonies using dangerous instruments while on felony probation given presumptive sentence under chapter). ARS § 13-604.02 (1994). Under the 1994 version, McDonald's sentence would only be 8.5 years, rather than the life sentence he originally received.


The Clemency Board reviewed McDonald's case, and on August 15, 1995, unanimously recommended that Governor Fife Symington commute the life sentence under the Disproportionality Review Act. Ariz. Sess. Laws ch. 365 § 1(G) (effective July 1994, repealed ...

BOP Ban on R-Rated Movies Challenged

The United State Court of Appeals for the Third District held that a Pennsylvania district court failed to conduct a proper analysis when it dismissed a class action challenging the Federal Bureau of Prisons' (BOP) ban on movies rated R, X or NC-17. The judgment against the prisoner class was vacated, and the matter was remanded for further consideration consistent with the opinion.


In 1996, as part of the Omnibus Consolidated Appropriations Act of 1997, Pul.L. No. 104-208, § 611, 110 Stat. 3009 (1996), Congress adopted what is known as the Zimmer Amendment. This enactment prohibits the expenditure of federal funds for the viewing of movies rated R, X, or NC-17 by federal prisoners. The law is analogous to the Ensign Amendment, which bars the expenditure of such funds for commercially published materials that are sexually explicit or that feature nudity.


To implement the Zimmer Amendment, the BOP promulgated Program Statement 5370, which provides that "[n]o movies rated R, X, or NC-17 may be shown to inmates." Since movies rated X have long been banned, this challenge is limited to whether the policy's restriction on R and NC-17 rated movies violates the prisoners' rights under the First Amendment ...

Favorable Termination Rule Inapplicable to Conditions Claims

The Third Circuit Court of Appeals held that the "favorable termination rule" of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584 (1997), does not apply to claims that implicate only the conditions, and not the fact or duration, of a prisoner's confinement.


Former prisoner Antonio Torres, a paranoid schizophrenic, entered a delusional state and became convinced that he would be harmed if placed at a minimum-security prison. He asked a guard if he could return to the Classification Committee for reconsideration of its decision. When that request was denied, Torres told the guard he would try to escape if sent to the minimum-security facility.


Torres was issued a disciplinary report charging him with attempting to plan an escape. He was found guilty of the violation and sanctioned to 15 days of disciplinary detention and 120 days of administrative segregation.


After Torres was released from custody he filed a § 1983 action, alleging that he was denied due process of law when he was found guilty of the disciplinary charge and sanctioned even though the charge was not supported by substantial evidence.


The district court ...

Gov. Ryan's Song

by Mumia Abu Jamal


Illinois Gov. George Ryan, in the last passing days of his first and only term, saved the best for last.


He sent shock waves across the nation when he issued four pardons to men sitting on the Condemned Units of the state's prison system, opening the doors of the dungeon for four men, one who sat in the shadow of the gallows for nearly two decades. Speaking in a soft Midwestern accent, his words were as damning as the death sentences that his orders negated: "The system is broken."


With these orders, he ushered four men-Stanley Howard, Madison Hobley, Aaron Patterson and Leroy Orange-from the darkest corners of the land into the light. Quoting a tale of that famed Illinoisan, Lincoln, he recalled the job of the nation's chief executive, who, reviewing execution orders for those who were convicted of violating the military code during the Civil War, asked one of his generals why one young man had no letters in his file from any who wished his life spared. The general, shrugging his shoulders matter-of-factly, said, "He's got no friends," Lincoln, lifting his pen, remarked, "He's got one friend," and pardoned ...

Illinois Governor Commutes All Death Sentences

On January 11, 2003 Governor George Ryan ensured himself a place in the history of criminal justice reform by commuting the death sentences of 167 people. It was the most sweeping act of its kind by a governor in U.S. history.


Most of the 164 men and 3 women who had their sentences commuted will now serve life sentences without the possibility of parole. Three of them will receive sentences of 40 years in prison, making them eligible for parole in several years. Ryan said their cases had raised special fairness concerns. Ryan went even farther the day before and pardoned four men on death row who had falsely confessed to their crimes after being tortured by police.


"Our capital system is haunted by the demon of errorerror in determining guilt, and error in determining who among the guilty deserves to die," said Ryan speaking to an audience at Northwestern University. "What effect was race having? What effect was poverty having? Because of all these reasons, today I am commuting the sentences of all death row inmates."


Ryan placed a moratorium on all state executions in 2000 citing the fact that since 1977, when the U.S. Supreme Court ...

Gay Bashing Illinois Guards to Pay $65,000 for Savage Beating

A man who was brutally beaten by jail guards while in custody at the Cook County Jail in Chicago will receive $65,000 in a settlement approved in June 2002.


Terry Phalen, now 42 and admittedly gay, was awaiting a bond hearing in October 1999 on auto theft charges when ...

Houston Crime Lab Closed, Prisoner Freed

On March 6, 2003, the Houston Police Department (HPD) Chief C. O. Bradford announced that the department's DNA crime lab had been shut down and that internal affairs had launched an investigation into possible criminal and other misconduct.


The announcement came six days before Josiah Sutton, who had been serving a 25 year sentence for rape, was released from prison after being exonerated by a retest of DNA evidence. Sutton was convicted in 1999, largely on testimony by lab technicians that his DNA matched DNA taken from the crime scene.


The crime lab has been under fire since an audit completed in December 2002 found that the lab's technicians were inadequately trained and that they routinely misinterpreted data and kept records in disarray. The audit further found that the technicians routinely used up all the evidence, making it impossible to refute it or have it retested.


The audit's findings led to a suspension of genetic testing, a review of the lab's procedures, and retesting of DNA evidence. So far, HPD has turned over 525 cases involving DNA testing to the Harris County district attorney's office for review. Of those, officials say, at least 62 warrant ...

Washington Guards Shoot Now, Ask Questions Later

There had not been a prisoner shot to death by a guard at the Washington State Penitentiary (WSP) in Walla Walla, Washington for more than thirty years. That changed last year. During 2002, under the "capable" leadership of Richard Morgan, the new WSP superintendent, WSP guards shot two prisoners to death. Both prisoners were killed without warning, which Morgan admitted was what he "asked [guards] to do."


In January of 2002, Richard Tate, a WSP guard, shot Abdul Ali to death while he was fighting with a cellmate over a hygiene dispute. Ali knocked his cellmate unconscious and began kicking him in the head. Tate promptly shot him to death without warning.


Neither the Washington Department of Corrections (DOC) nor the Walla Walla County prosecutor found fault with Tate's killing Ali. In fact, Tate was praised by his supervisors for shooting Ali.


In November of 2002, Gregory "Tex" Garner arrived at WSP, where Christopher Shelley was serving nine years for raping a twelve-year-old girl. Garner was serving forty-nine years for shooting at Snohomish County sheriff's deputies. The two knew each other from the Monroe Corrections Complex, near Monroe, Washington. Garner told WSP prisoners Shelley was a homosexual at ...

Prompt Mental Health Services Ordered for Arkansas Pretrial Detainees

by John E. Dannenberg


A settlement was reached between the Arkansas Division of Mental Health Services and the class of all mentally ill pretrial detainees in Arkansas, to have either timely court-ordered mental health evaluations or be promptly admitted to the Arkansas State Hospital (ASH), according to the urgency of their mental health needs. The US District Court (E.D. Ark.) ruled that the existing admission waiting period of up to one year amounted to punishment in violation of the detainees' constitutional rights to due process of law.


James Terry, a 29 year old with a history of serious mental illness, and charged with aggravated assault, criminal mischief and battery, was in Sebastian County Detention Center (jail) awaiting trial - with no date set. His mental condition deteriorated to where both his mental and physical health were in danger of permanent and irreparable harm. Forensic psychologist Charles Mallory, Ph.D., found Terry on January 9, 2001 to be incompetent to stand trial and recommended he be committed to ASH for treatment. One month later, the Sebastian County Circuit Court ordered the hospital commitment. However, as of July 16, 2001, Terry was still in jail.


There, he decompensated, and, unable to follow ...

Alabama DOC Settles Mental Health Class Action

The U.S. District Court for the Middle District of Alabama approved a settlement agreement between a class of prisoners, defined as "all acutely or severely mentally ill male inmates who are presently or will in the future be incarcerated in the Alabama Department of Corrections" (ADOC), and the defendant ...

California Governor Has Carte Blanche in Denying Lifer Paroles

The California Supreme Court ruled that the governor has almost unlimited power to reverse a decision of the parole board (Board of Prison Terms ("BPT")) and that his decision may be reviewed by a court only to see if "a modicum" of evidence supported it. The court further ruled that the governor's review-enabling statute, enacted in 1989, could be used to permit such review of the BPT's parole denial for prisoners whose crime predated 1989 - without violating state or federal ex post facto protections. As to the complaint that the current governor has a no-parole policy, the court held that the two releases he has approved in 4800 hearings proves he has only a "stringent" policy - not a preclusive one. Finally, the court held that even when a prisoner has been acquitted at trial of a greater offense, but convicted of the lesser - while the BPT may only hold him to the lesser conviction - the governor may, upon the existence of "some" evidence in the record, hold the prisoner to serve the punishment for the greater offense.


Robert Rosenkrantz had been convicted of second degree murder in 1986 for the murder of his high school friend Steven Redman ...

No Qualified Immunity When Denying Pain Medication

The Seventh Circuit US Court of Appeals affirmed summary judgment against an Illinois state prisoner's 42 USC § 1983 principal complaint alleging negligent medical treatment, but denied the defendants' qualified immunity defense to the included claim regarding denial of pain medications.


John Walker, incarcerated at Western Illinois Correctional Center, suffered a deep cut to his hand. He was treated by Nurse Rowlands only with topical antibiotics, even though he said he was in great pain because the wound was down to the bone. Four days later, upon Walker's complaint of a worsening infection, Rowlands phoned Dr. Adrian Feinerman, who asserted he ordered oral antibiotics, plus ibuprofen for pain. Four more days later, Dr. Benjamin examined Walker, whose whole arm was now swollen, and his hand immobile - from which he was still suffering great pain. Dr. Benjamin ordered a topical antibiotic, an ACE bandage and Motrin for pain. Six days later a different topical antibiotic was ordered. After one more week, upon referral to surgeon Dr. Ansari, it was determined he now had a bone infection and they performed emergency surgery at an outside hospital. Although a narcotic pain reliever was then prescribed, Nurse Dunbar refused to give it to ...

U.S. Supreme Court Upholds Sex Offender Registration Laws

In two decisions handed down on March 5, 2003, the United States Supreme Court reversed the Ninth and Second U.S. Circuit Courts of Appeal, both of which had struck down state sex offender registration laws, popularly known as "Megan's Law(s)."


In one case, decided 6-3, the High Court held that Alaska's sex offender registration laws did not offend the ex post facto prohibition of the Constitution. In the other case, decided 9-0, the Court held that Connecticut's sex offender registration statute did not violate procedural due process, and that a substantive due process violation question was not properly before the Court and would not be considered.


In 1994, Alaska enacted its version of Megan's Law, known as the Alaska Sex Offender Registration Act (ASORA), and made it retroactive. The law requires sex offenders convicted of a single, non-aggravated sex offense to register annually for 15 years. Persons convicted of two or more sex offenses or of any aggravated sex offense must register for life. Registrants must update their information with local law enforcement within one day every time they move, change jobs, alter their appearance, seek medical or psychiatric treatment, or buy or borrow ...

Habeas Granted in BOP Good Time Case

More than one year after Lopez v. Davis, 121 S.Ct. 714, 531 U.S. 230 (2001), an Oregon U.S. District Court has ordered the Federal Bureau of Prisons (BOP) to transfer a prisoner to a community corrections (CCC) program "as soon as practicable."


Terry Hicks was convicted and sentenced to 84 months for money laundering. He entered a drug treatment program (DAP) and, pursuant to 18 U.S.C. §3621(e), was found eligible for early release upon completion of the DAP. However, four weeks prior to release, BOP denied early release based on a presentence investigation (PSI) determination that Hicks possessed a gun in the commission of the felony. Hicks exhausted all administrative remedies available to him then filed for habeas corpus relief under 28 U.S.C. §2241.


BOP argued that the district court lacked jurisdiction because Hicks failed to exhaust all his remedies. Further, citing Lopez, BOP argued that the PSI finding that Hicks had a firearm during commission of a crime authorized BOP's denial of early release. Lopez held that, under 18 U.S.C. §3621(e) and 28 C.F.R. §550.58(a), BOP had discretion to categorically deny early release ...

News in Brief

Arizona: On March 20, 2003, the Shiprock Detention Center on the Navajo reservation was closed for failing to correct health code violations, chipped paint and overcrowding with prisoners sleeping on the jail's floors. The Navajo Office of Environmental Health inspected the 40 year old jail in January, 2003, and issued a notice of deficiencies with instructions that they be corrected immediately. The deficiencies were not corrected and the jail was closed.


Arkansas: In May, 2003, Craighead county sheriff Jack McCann announced his jail was overrun with an infestation of brown recluse spiders which have bitten at least 15 prisoners and defied extermination efforts. Bites by the spider can cause serious illness and death in some extreme cases. McCann said he was doing his best to eliminate the spiders.


California: On May 9, 2002, the FBI said it would investigate complaints that Orange County sheriff's deputy Jerome Preston, 47, pepper sprayed 35 county jail prisoners on March 5, 2003, after they refused to disclose who had spat on his driver's seat. When no one would confess to the heinous act, or finger the culprit, Preston pepper sprayed the inside of the bus and forced the prisoners back into ...

No Administrative Exhaustion in Idaho Child Support Modification

The Idaho Court of Appeals ruled that Idaho prisoners may seek judicial review of Magistrate Court orders setting monthly child support obligations, without first exhausting administrative remedies.


Charles Smith was a prisoner at the Idaho State Penitentiary from 1995 until 2001. His ex wife obtained a child support order against Smith in the Magistrate Court. That order obligated Smith to payments of $119 monthly. In July 1997, that court reduced Smith's monthly obligation to $50.


Smith's prison wages were $35 monthly, and when prison officials began withholding funds therefrom for child support, Smith moved the Magistrate Court to order them to stop doing so. The Magistrate Court refused, denying jurisdiction. Smith appealed to the District Court, which denied him relief for failing to exhaust administrative remedies before seeking judicial review, since he did not first ask Child Support Services to reduce the obligation. Smith appealed to the Idaho Court of Appeals.


The Court of Appeals recognized that Idaho Code § 67-5271(1) requires a person to exhaust all administrative remedies before seeking judicial review of agency actions. It also found, however, that Idaho Code § 32-1207 et seq mandated the withholding of child support payments from Smith's prison account ...

Consultants Do Not Insulate Officials from Kosher Diet Liability

Consultants Do Not Insulate Officials from Kosher Diet Liability;
Prisoner Loses $30,000 for Failing to Exhaust


In an appeal by prison officials of a $30,000 punitive damage award for excluding a prisoner from participating in Jewish services and holidays, the Eighth Circuit Court of Appeals, sitting en banc ...

$13 Million Approved for Study of Prisoner Rape

A $13 million funding package has been approved for the study of prisoner rape, the first-ever federal appropriation for research on the issue. The package is part of the $397 billion federal spending bill signed by President Bush on February 20, 2003.


The language of the funding package states that the money is to be used for "implementation of prison rape prevention and prosecution programs including a statistical review and analysis of the incidence and effects of prison rape. The development of national standards for enhancing the detection, prevention, reduction, and punishment of prisoner rape."


Lara Stemple, executive director of Stop Prisoner Rape, said the money represents the first federal commitment to dealing with sexual assault behind bars. "We are pleased to see this serious and widespread abuse finally being addressed by the federal government," Stemple said. "Prisoner rape derails justice and destroys human dignity. We hope that this is the first small step toward a comprehensive solution."


It is unclear, however, whether the newly appropriated funds can be spent before the passage of the Prison Rape Reduction Act of 2003, legislation that will be introduced to the House of Representatives this session. Staffers in the office of Sen. Jeff ...

 

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