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Prisoner Education Guide

Prison Legal News: August, 2003

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Volume 14, Number 8

In this issue:

  1. America's Prisons Turn a Blind Eye to HCV Epidemic (p 1)
  2. Pregnant Wisconsin Prisoner Punished for Sexual Contact While Guard Walks Free (p 4)
  3. Louisiana Guards' Conviction Upheld in Prisoner's Beating (p 5)
  4. From the Editor (p 6)
  5. California Prison Policy Restricting Book Orders Enjoined (p 6)
  6. 900 British Prisoners Freed Following Court Ruling (p 7)
  7. Massachusetts Jury Awards $175,000 to Beaten Ex-Prisoner (p 7)
  8. Sexual Harassment Scandal Rocks Connecticut DOC (p 8)
  9. Criminal Law Update (p 10)
  10. Los Angeles County Liable Under § 1983 for Jail Detainee's Murder (p 13)
  11. Oregon HCV Suit Certified as Class Action (p 14)
  12. Sadistic New Jersey Prison Doctor's License Revoked Amid Allegations of Neglect, Malpractice (p 16)
  13. $178,294 Awarded in BOP Malpractice Suit (p 17)
  14. $3.2 Million Awarded to New York Jail Prisoner in Work Accident (p 17)
  15. Pro Se Tips and Tactics: Damages (p 18)
  16. Ohio Jail's Pay-for-Stay Program Unconstitutional, Partial Summary Judgment Granted (p 20)
  17. Settlement of Hamilton County, Ohio, Jail Booking Fees Case (p 20)
  18. Butler County, Ohio, Settles Jail Booking Fee Suit (p 21)
  19. Director Out at Scandal-Plagued Washington State Jail (p 22)
  20. Rikers Island Jail Chief Demoted (p 25)
  21. Arizona Prisoner Entitled to Workers' Compensation Payments During Period of Incarceration (p 25)
  22. North Carolina Juvenile Prisons Plagued by Physical, Sexual Abuse, and Medical Neglect (p 26)
  23. Deaths and Beatings Rampant in Texas' Nueces County Jail (p 28)
  24. Behind the Walls: A Guide for Families and Friends of Texas Prison Inmates (p 29)
  25. DSU-Like Conditions in Massachusetts Prison Trigger Due Process Protection (p 30)
  26. Federal Prisoners Enlisted for Dangerous Computer Refurbishing (p 31)
  27. Probation and Parole Populations Continued to Rise in 2001 (p 32)
  28. Overt Act Unnecessary to Allege Conspiracy Claim in 7th Circuit (p 32)
  29. U.S. Supreme Court Upholds California's Harsh Three-Strikes Law (p 33)
  30. News in Brief (p 34)
  31. News in Brief (p 35)
  32. The PLRA Does Not Change Leave to Amend Rule (p 36)
  33. Illinois Settles Visitor Strip Search Suit for $237,000 (p 36)

America's Prisons Turn a Blind Eye to HCV Epidemic

The hepatitis C virus (HCV) is an insidious and relentless disease which is highly unpredictable and eventually fatal. It is a chronic disease which is the leading cause of cirrhosis, liver failure and liver cancer which causes an estimated 10,000 deaths annually in the United States; a number the Centers for Disease Control and Prevention (CDC) expects to triple by 2010.


HCV infection in America's prisons has reached epidemic proportions. Random seroprevalance studies in state prisons in California, Connecticut, Maryland, Oregon, Texas and Virginia have revealed infection rates between 29 and 54 percent, compared to a 2 percent infection rate in the total U.S. population.


Most states are ignoring the crisis, however, even as prisoners are dying, or being released unaware of their disease and creating a public health risk. "Correctional systems have buried their heads in the sand because they don't want to know how many prisoners have hepatitis C," said Eric Blaban, a staff attorney with the National Prison Project of the ACLU. Even when prisoners are tested for HCV, prison doctors in many states fail to inform them of the results - or that they were tested - until years later, if at all.


New ...

Pregnant Wisconsin Prisoner Punished for Sexual Contact While Guard Walks Free

In December, 2002, a mentally ill female prisoner at the Taycheedah Correctional Institution (TCI) in Wisconsin was given a year of solitary confinement after being impregnated by a prison guard, while the guard, Mathew Emery, was fired but not prosecuted.


Prisoner Jackie Noyes, 24, who has a well-documented history of mental problems, was given the punishment for confessing to four sexual encounters with Emery, also 24, at the mental health unit where she was supposed to be receiving treatment. Prison officials found her guilty of "sexual conduct" and "soliciting staff" and ordered the year-long segregation. Emery confessed only to two sexual encounters with Noyes, although both agreed the relationship was consensual.


However, the focus of this case has centered on the injustice created when a mentally ill prisoner is given any punishment at all while the perpetrator the guard virtually walks free. Wisconsin state Rep. Sheldon Wasserman (D-Milwaukee) described the situation as "tragic" and an embarrassment." And legislators from both sides of the aisle acknowledge Noyes was a victim, and expressed their dismay at the way prison officials have treated her.


Wisconsin, however, is one of only four states that do not criminalize sexual contact between prison staff and the ...

Louisiana Guards' Conviction Upheld in Prisoner's Beating

A jury's conviction of three guards at the Louisianan State Penitentiary at Angola in the assault and beating of prisoner Raymond Jackson has been affirmed by the Fifth Circuit Court of Appeals. Sergeant Harrison Daniels was convicted in the assault, and denying Jackson medical care. Sergeant John Swan was also convicted in the assault, and Lieutenant Patrick Sayes was convicted of failing to prevent the assault. The District Court sentenced Daniels to ninety-six months in prison, and Swan and Sayes were each sentenced to eighty-seven months in prison.


The incident occurred at Angola's Cuda 1 unit, which is the prison's maximum-security disciplinary unit. In order for Jackson to be escorted to the medical unit for an injection, Daniels came to his cell with metal handcuffs. Jackson stated that due to a skin condition plastic "flex cuffs" were required for him. Daniels insisted on using the metal cuffs. An argument ensued, Daniels spat a mouthful of sunflower seeds in Jackson's face, and Jackson spat back. Daniels procured a bucket and doused Jackson four times with water. After being telephoned by Daniels, Sayes arrived with flex cuffs. However, Daniels subdued Jackson by shackling his hands and feet with ...

From the Editor

This month we continue our coverage of the hepatitis C (HCV) epidemic sweeping through American prisons with little or no treatment for the afflicted. The public health consequences of this and many other diseases that have historically festered in American prisons and jails before entering the community with both released prisoners and the staff who work in detention facilities is largely ignored. Which is odd, since the problem has been around for well over a hundred years. In some cases the diseases, such as HCV, are new, in others, like tuberculosis, they are old. Litigation by prisoners seeking treatment for HCV infection promises to be for this decade what HIV and AIDS litigation was for the 1980's. Upcoming issues of PLN will report more developments on this issue.


By now readers should have received PLN's summer fund-raiser mailing. If you can afford to make a donation to help support PLN's work please do so. PLN counts on you, its individual readers to continue publishing. Subscription, advertising and book sale income do not cover all of PLN's operating costs. All donations to PLN are tax deductible and are used to further PLN's work. We recently expanded ...

California Prison Policy Restricting Book Orders Enjoined

The US District Court (ND Calif.) issued a permanent injunction against officials at the maximum security Pelican Bay State Prison (PBSP) that terminated their policy requiring vendors who shipped books, periodicals, magazines or calendars to PBSP prisoners to use a prison-supplied shipping label on the package - because that policy impinged on First Amendment freedoms.


Todd Ashker, incarcerated at PBSP's tightly controlled Security Housing Unit (SHU), had for two years tried to receive books he had ordered from approved vendors, but was frustrated by the prison's policy of requiring a prison-provided shipping label to be affixed to the outside of the package. The policy proved so incompatible with efficient vendor shipping processes that some vendors ceased doing business with California prisons. Books received at the prison without such labels, or with defectively filled out labels, were subject to being returned - or destroyed if the prisoner did not provide return shipping postage within 30 days.


Ashker filed a 42 U.S.C. § 1983 complaint alleging, inter alia, that the prison's policy restricted his access to the media in violation of his First Amendment rights, and moved for summary judgment.


The facts were not disputed. The prison had overlapping and ...

900 British Prisoners Freed Following Court Ruling

On July 26, 2002, nine hundred prisoners in England and Wales had to be set free after the European Court of Human rights unanimously ruled that extending prisoners' imprisonment for disciplinary violations without allowing them legal representation violated Article 6 of the European Convention on Human Rights. The Prison Service had known that its prison disciplinary procedures, in which a prison warden may add time to a prisoner's sentence, was subject to legal challenge ever since the Convention came into force two years ago.


The current rules allow the prison warden to act as judge and jury and add up to 42 days to a prisoner's sentence for disciplinary violations. The ruling came in the case of two rapists challening the existing procedure. The court ruled that the British Government should pay 17,124 pounds in costs, but rejected a claim for 4,000 pounds in compensation.


According to Joe Leveson of the Prison Reform Trust, the Prison Service may face damage claims running into the millions of pounds. Prison officials ordered the immediate release of 98% of the prisoners to forestall additional liability. However, Prison Service officials expressed alarm at releasing prisoners who were incarcerated for violent ...

Massachusetts Jury Awards $175,000 to Beaten Ex-Prisoner

On August 28, 2002, a Worcester (MA) Superior Court jury awarded $175,000 to a former Massachusetts state prisoner who sued the Department of Correction (DOC). The jury also found that the DOC negligently hired and supervised a guard with a known propensity for violence and denied Gendron medical treatment ...

Sexual Harassment Scandal Rocks Connecticut DOC

by Matthew T. Clarke


The Connecticut Department of Correction (DOC) has been rocked by allegations of sexual harassment, sexual abuse, and illegal sex between guards and prisoners. The scandal began on August 8, 2002, when 15 female guards filed two separate federal class-action civil rights lawsuits against former DOC Commissioner John R. Armstrong, alleging pervasive sexual harassment by male coworkers.


The complaints alleged that pornographic material was displayed by male guards and prisoners in the presence of female guards; male guards exposed themselves to female guards; male guards touched female guards in sexually suggestive ways; used condoms were placed on a female guard's car; a female guard was asked to join a male guard's prostitution ring; a female guard being physically threatened when she refused a male co-worker's sexual advances; female guards were denied restroom breaks; and supervisors ignored female guards' complaints about sexual harassment and retaliated against them for complaining. The alleged retaliation for refusing and/or reporting sexual advances included threats of physical violence, ordering supervisors to give defendants poor job performance evaluations, and giving promotions to less-qualified personnel.


The suits were filed on behalf of the DOC's 1,700 female guards. One 111-page ...

Criminal Law Update

by Walter Reaves


The following are summaries of the some of more significant, and interesting cases decided during the last several months dealing with issues important to prisoners and those interested in post-conviction litigation.


SEARCH AND SEIZURE


Corroboration of Affidavit - United States v. Peck, 317 F.3d 754 (7th Cir. 2003). Police obtained a sworn statement from an informant that she had seen bundles of drugs in her boyfriend's home. Court holds the affidavit was not sufficiently detailed. Specific details about the drugs, such as where they were found, the total amount, or the frequency with which they were sold was not provided. Additionally, the informant indicated she was the defendant's girl friend, but could not give any information about him. The police also failed to corroborate information she did provide. However, the search was upheld under the good faith exception, the court finding the search warrant affidavit was not so deficient as to make reliance on it unreasonable.


Standing of Social Guest - United States v. Rhiger, 315 F.3d 1283 (10th Cir. 2003) The Tenth Circuit held that a social guest has an expectation of privacy that allows them to challenge a search. The defendant knew the ...

Los Angeles County Liable Under § 1983 for Jail Detainee's Murder

Los Angeles County Liable Under § 1983 for Jail Detainee's Murder

by Walter Reaves


The following are summaries of the some of more significant, and interesting cases decided during the last several months dealing with issues important to prisoners and those interested in post-conviction litigation.


SEARCH AND SEIZURE


Corroboration of Affidavit - United States v. Peck, 317 F.3d 754 (7th Cir. 2003). Police obtained a sworn statement from an informant that she had seen bundles of drugs in her boyfriend's home. Court holds the affidavit was not sufficiently detailed. Specific details about the drugs, such as where they were found, the total amount, or the frequency with which they were sold was not provided. Additionally, the informant indicated she was the defendant's girl friend, but could not give any information about him. The police also failed to corroborate information she did provide. However, the search was upheld under the good faith exception, the court finding the search warrant affidavit was not so deficient as to make reliance on it unreasonable.


Standing of Social Guest - United States v. Rhiger, 315 F.3d 1283 (10th Cir. 2003) The Tenth Circuit held that a social guest has an expectation of privacy ...

Oregon HCV Suit Certified as Class Action

On December 19, 2002, Oregon prisoners suing prison officials for refusing to properly diagnose and treat their hepatitis C virus (HCV) were handed an important victory, when a federal judge issued a 37-page Opinion and Order, certifying the suit as a class action. In doing so, the Honorable Anna J. Brown became the first judge in the country to certify a prison HCV suit as a class action.


Judge Brown engaged in a detailed and scholarly analysis of each of the class action requirements enumerated in Fed.R.Civ.P. 23(a), (b)(2), and (b) (3), finding that plaintiffs satisfied all of the requirements of FRCP 23(a) and (b)(2).


The Court first found that plaintiffs satisfied the "numerosity" requirement of FRCP 23(a)(1) when they alleged that: the putative class size is estimated "to be at least 3,300 to 5,500 based on ODOC's estimates"; the putative class includes prisoners "in 12 prisons located in various geographic regions of the State" and prisoners "housed out of state"; "approximately 400 [prisoners] from almost every prison . . . in the state have contacted and retained Plaintiffs' counsel"; and "[m]ost [prisoners] have limited resources and are unable to ...

Sadistic New Jersey Prison Doctor's License Revoked Amid Allegations of Neglect, Malpractice

On November 13, 2002, the New Jersey Board of Medical Examiners revoked the license of Dr. John J. Napoleon following the most recent allegations that he was grossly negligent in the treatment of nine patients at the Bayside State Prison and Cape May County Jail. Napoleon was also ordered to pay over $53,000 in court costs and penalties by the board.


New Jersey deputy attorney general Paul R. Kenney argued that Napoleon, who served as the prison's medical director from 1968 to 1992, and held the same position at the jail until 1995, considered prisoners "unworthy" of medical care. Among the allegations in the most recent complaints were that Napoleon ignored a prisoner's complaint of chest pains the day before the prisoner suffered a fatal heart attack, and accusing another prisoner of faking symptoms the day before he died of a brain tumor.


Despite the numerous and serious allegations against the former doctor, Napoleon's lawyer, Mario A. Iavicloi, claimed the charges were "absolutely inconsistent" with Napoleon's record in private practice. But it is exactly that fact, his critic's say that demonstrates that Napoleon saw prisoners as a "sub-class," undeserving of medical treatment, and that ...

$178,294 Awarded in BOP Malpractice Suit

The United States District Court for the Middle District of Pennsylvania has awarded a federal prisoner $178,294, including $150,000 for pain and suffering, due to medical malpractice by doctors working for the U.S. Bureau of Prisons (BOP).


Jeffrey Berman is an ileostomy patient, a condition he has ...

$3.2 Million Awarded to New York Jail Prisoner in Work Accident

On October 18, 2002, a Queens county, New York, jury awarded Ronald York, a 21 year old prisoner at the New York City jail on Riker's Island, $3.2 million in damages as compensation for a work injury. Ronald York was a prisoner employed in the jail bakery when ...

Pro Se Tips and Tactics: Damages

1. Overview of Punitive Damages


When people discuss "money damages" in connection with a lawsuit for personal injury, they are usually thinking of damages that relate directly to the injury. Examples include money to compensate a plaintiff for lasting physical injury or pain, medical expenses, and sometimes emotional suffering as well. These are called "compensatory" damages, because they are designed to compensate the plaintiff for injuries caused by the defendant.


However, there is another kind of damages, called "punitive" or "exemplary" damages, that plaintiffs in many cases can ask for as well. In this column, I will briefly discuss punitive damages and some issues that may come up in prison cases where the plaintiff is asking for punitive damages.


As the name "punitive" suggests, punitive damages are designed not to compensate the plaintiff, but to punish the defendant for especially outrageous conduct. Even though a defendant must pay punitive damages to the plaintiff, the purpose of punitive damages is to punish especially bad conduct and deter further conduct of this kind, not to compensate the plaintiff. And so the standard for an award of punitive damages is a high one: In civil rights cases filed under 42 U.S.C ...

Ohio Jail's Pay-for-Stay Program Unconstitutional, Partial Summary Judgment Granted

Ohio Jail's Pay-for-Stay Program Unconstitutional,
Partial Summary Judgment Granted


The U.S. District Court for the Southern District of Ohio has awarded partial summary judgment to a former pretrial detainee in a case involving seizure of the detainee's funds by the Hamilton County Justice Center (HCJC) in a program called Pay-for-Stay. The court found that the program misapplied Ohio law and violated due process [PLN, June 2002]. See: Allen v. Leis, 154 F.Supp.2d 1240 (SD OH 2001).


Anthony Allen was arrested on July 18, 1999, on a felony warrant. At booking, HCJC invoked its Pay-for-Stay program to seize $30.00 of Allen's money to cover booking costs. Allen was later released, and the criminal charges were dismissed. Although Allen could have applied for restitution of the $30.00 due to dismissal of the charges, he did not do so.


Allen sued HCJC, Hamilton County Sheriff Simon Leis, and others under 42 U.S.C. §1983 claiming that the Pay-for-Stay program violated due process. Defendants moved for summary judgment and were denied. The court later certified the case as a class action. Allen then moved for partial summary judgment on the issue of Defendants' liability.


The ...

Settlement of Hamilton County, Ohio, Jail Booking Fees Case

After protracted negotiations and two court rulings finding the defendants liable, Hamilton County, Ohio, officials finally agreed to settle the claims challenging its Pay-for-Stay program (see mail article). Led by Cincinnati attorney Stephen R. Felson, with attorney Robert B. Newman, the plaintiff class (former Hamilton County Jail prisoners) won agreement ...

Butler County, Ohio, Settles Jail Booking Fee Suit

Butler County, Ohio, Settles
Jail Booking Fee Suit


The Sheriff and Commissioners of Butler County, Ohio, settled a lawsuit over its Pay-to-Stay program brought in the United States District Court for the Southern District of Ohio, Western Division, by a citizen of Liberty Township, Ohio, in Butler County. The victorious ...

Director Out at Scandal-Plagued Washington State Jail

Amid numerous scandals and investigations into wrongdoing and prisoner mistreatment by staff, the director of the Snohomish County jail in Everett, WA was relieved of her duties in mid-April 2003. Corrections department director Andrea Bynum was fired due to her mismanagement of the jail.


No less than five active investigations are underway by the Everett police department into alleged criminal or sexual misconduct committed by staff at the county jail. The scandals occurring on Bynum's watch include the "disappearance" of $10,000 in bail money, the parading of naked female prisoners in an open-air courtyard, a female jail cook forcing sex on male prisoners, three suspicious prisoner deaths caused by apparent medical neglect, a severe nursing shortage, and yet another investigation into an alleged lesbian relationship between a guard and a prisoner.


In an interview, Bynum's attorney, Mitch Codgill, seems to blame most of the jail's problems on overcrowding, noting that the 477-bed jail, originally designed for half that number, routinely houses more than 600 prisoners. "It's a time bomb waiting to happen," Codgill said. "It's understaffed and it has been that way for a long time."


But the volume and types of misconduct jail ...

Rikers Island Jail Chief Demoted

Rikers Island supervisor Anthony Serra has been demoted from his $140,000 per year position as New York City jail chief amid allegations he improperly assigned underlings to work on Republican Governor George Pataki's re-election campaign.


Serra was suspended from duty on October 22, 2002 after a city investigation was launched. According to Newsday, sources said that jail supervisors under Serra were pressured to buy Pataki fund raiser tickets. The sources also said that when Rikers Island wardens refused to allow guards to take time off to work for Pataki on primary day, they were overruled.


Serra has been politically active in Republican politics for years. In 1993, he volunteered for Rudolph Giuliani. Serra also worked on the campaign to elect Mayor Michael Bloomberg.


In an attempt to distance themselves from Serra, Pataki spokesman Michael McKeon said, "We hired a company [Serra's] that helped elect Mayor Giuliani and Mayor Bloomberg ... Obviously we expect our vendors to have the highest standards."


Serra's enthusiastic political involvement has been well rewarded. He quickly ascended Rikers ranks, moving from a captain to the jail's management chief. Moreover, Serra's private security company has received hundreds of thousands of dollars from ...

Arizona Prisoner Entitled to Workers' Compensation Payments During Period of Incarceration

The Arizona Court of Appeals held that a prisoner may collect workers' compensation benefits during his term of imprisonment, despite a 1997 state statute prohibiting workers' compensation payments "during the period of time that [a claimant] has . . . [b]een convicted of a crime and is incarcerated in any state, federal, county or city jail or correctional facility." A.R.S. § 23-1031(A).


In May 1995, Jose Mejia injured the big toe of his right foot while working for a construction company and, due to complications, had to have the toe amputated. The following May, he was awarded both medical and temporary total disability compensation benefits from the date of the injury until such time as his condition improved. In 1998, while still receiving workers' compensation payments, Mejia's probation from a 1993 felony conviction was revoked and he was incarcerated for approximately one year.


Due to his incarceration, the Arizona State Compensation Fund subsequently notified Mejia that his compensation payments were suspended for the period of his confinement pursuant to § 23-1031(A). Mejia sought review from an Administrative Law Judge (ALJ), who entered an order affirming the suspension of Mejia's compensation payments during the period of incarceration. Mejia sought ...

North Carolina Juvenile Prisons Plagued by Physical, Sexual Abuse, and Medical Neglect

North Carolina Juvenile Prisons Plagued by
Physical, Sexual Abuse, and Medical Neglect

by Lonnie Burton


After four separate lawsuits were filed by prisoners serving sentences at two North Carolina juvenile facilities alleging a wide range of mistreatment from sexual and physical abuse to medical neglect state officials have launched an investigation into all five of their juvenile prisons.


Dennis Patterson, a spokesman for the Office of the State Auditor said in November, 2002, that his agency found so much abuse at the Swannanoa Valley Youth Development Center (SVYDC) in Buncombe County that it justified expanding the investigation statewide. "We're always looking to see if issues at one place might apply agency-wide," Patterson said. "If we're going to do it, it's worth looking at the whole system."


The investigations actually began in early 2002 when three SVYDC residents sued, claiming they were repeatedly molested by a staff member and that the prison system failed to protect them.


Another lawsuit involves a claim of serious medical neglect at the Western Youth Institution (WYI) in Morgantown leading to the death of an 18-year-old asthmatic in May 2000.


The problems of the North Carolina juvenile prison system are not limited just ...

Deaths and Beatings Rampant in Texas' Nueces County Jail

Nueces County Jail in Corpus Christi Texas has become a regular source of dead and beaten prisoners. Ten prisoners have died in the jail between 1996 and 2000. Two cases have already cost the county $2 million and three more wrongful death suits are still pending.


$900,000 Paid in ...

Behind the Walls: A Guide for Families and Friends of Texas Prison Inmates

by Jorge Antonio Renaud, University of North Texas Press, 2002, soft cover, 218 pages, $14.95

Review by Michael Rigby


If you or someone you know is one of the nearly 150,000 people incarcerated in a Texas prison, then Behind the Walls: A Guide for Families and Friends of Texas Prison Inmates is for you. It is an essential guide to understanding the myriad rules and regulations integral to any prison. Unsure of what to do in case of a family emergency? See the chapter titled Emergencies. Want to know what the visiting hours are? Then Visits and Phone Calls is the chapter for you. Need to know if you can send a package? Check out Chapter 10, Mail.


For the newly incarcerated, Jorge Antonio Renaud details the daily routine of Texas prison life, including information on benign topics such as food, clothing, and work, and on more serious topics such as racism, gangs and violence.


After beginning with a short history of the Texas prison system, Renaud covers everything from intake at the diagnostic unit to release and beyond. As a Texas prisoner, I found the information accurate, informative and surprisingly in-depth. Renaud's writing is peppered with ...

DSU-Like Conditions in Massachusetts Prison Trigger Due Process Protection

DSU-Like Conditions in Massachusetts Prison
Trigger Due Process Protection

by Matthew T. Clarke


The Supreme Judicial Court of Massachusetts has held that the Massachusetts Commissioner of Corrections (MCOC) may not avoid previously ordered due process review of prisoners placed in non-punitive segregation simply by making an entire wing of a prison segregation and calling it general population.


This is a class-action suit in which "all prisoners who are now confined or may at some point be confined" at the Massachusetts Correctional Institution at Cedar Junction (the prison) "in any housing other than the Departmental Disciplinary Unit (DDU)" challenge the restrictive conditions of their confinement in the East Wing of the prison. Cedar Junction is the only maximum security prison in the Massachusetts prison system. The issue is whether the MCOC "can ignore regulations, duly enacted and still in effect, which govern the placement of prisoners in segregated confinement for non-disciplinary reasons."


In previous litigation in 1985, a single justice of the Massachusetts Supreme Judicial Court ordered the adoption of regulations to ensure procedural protections before a prisoner can be isolated in the prison's Departmental Segregation Unit (DSU) for non-disciplinary reasons. Regulations were adopted. 103 Code Mass. Regs. 421.00 ...

Federal Prisoners Enlisted for Dangerous Computer Refurbishing

Federal Prisoners Enlisted for Dangerous
Computer Refurbishing

by Lonnie Burton


In February 2002, it was announced that prisoners at a new federal prison in California will soon be partnering with companies such as Dell, IBM and Hewlett-Packard in a program that will refurbish and recycle used computers. The U.S. Penitentiary in Atwater, CA will employ about 350 prisoners in a program that has been called "scandalous" and a "high-tech chain gang."


The Atwater facility, which is under the jurisdiction of the U.S. Department of Justice (USDOJ). The USDOJ and UNICOR, which is the trade name of the Federal Prison Industries, have teamed up with Dell, IBM, Hewlett-Packard and Apple Computers to put prisoners to work recycling obsolete computers. But some believe the partnership was formed out of necessity rather than convenience.


The components of these old computers, such as CRT's (Cathode Ray Tubes), plastics, and wiring will expose the prisoners to an array of toxic chemicals and metals such as lead, mercury, cadmium, arsenic, and flame retardants, among others.


"Atwater is just the latest and probably worst" example of exploiting prisoners in the name of providing job skills, said Ted Smith, Executive Director of the Silicon Valley ...

Probation and Parole Populations Continued to Rise in 2001

According to the Bureau of Justice Statistics (BJS), in a bulletin released in August 2002, the total number of adult women and men under some form of correctional supervision --jail, prison, probation, or parole rose to 6,592,800 by the end of 2001. According to the report, "[a]bout 3.1% of the U.S. adult population, or 1 in every 32 adults, were incarcerated or on probation or parole at yearend 2001." This represents an increase of about 2.3% from year end 2000. The BJS bulletin, titled Probation and Parole in the United States, 2001, focuses primarily on changes in the probation and parole populations.


The nearly 6.6 million persons in the adult correctional population represented 3,932,751 persons on probation, 731,147 on parole, 631,240 in jail, and 1,330,980 in prison.


Parole has been the slowest-growing portion of the correctional population since 1995. The parole population grew only about 1.0% in 2001, compared to 2000. By contrast, the probation population grew 2.8%, the jail population grew 1.6%, and the prison population grew 1.1%, compared to 2000. "Offenders on probation or parole represented nearly 71% of all persons ...

Overt Act Unnecessary to Allege Conspiracy Claim in 7th Circuit

The United States Court of Appeals for the Seventh Circuit held that it is not necessary to allege an overt act to state a conspiracy claim. The court also held that dismissal of a prisoner's retaliation claim for failure to exhaust administrative remedies was proper.


Wisconsin state prisoner Tony Walker brought suit against prison officials and a former Governor, alleging that defendants: conspired to confine him and other prisoners beyond their mandatory release dates; and retaliated against him for using the law library and for filing grievances complaining about prison conditions.


The district court dismissed the suit for failure to state a claim, concluding that Walker's conspiracy claim must be dismissed because the complaint failed to allege an overt act, and complaints concerning the duration of a prisoner's confinement must be brought in a habeas corpus action. The dismissal of Walker's retaliation claim was based upon his failure to exhaust administrative remedies within the deadline provided by state law.


The Seventh Circuit reversed the dismissal of Walker's conspiracy claim, noting that the Supreme Court held in Swierkiewicz v. Sorema, N.A, 534 U.S. 506, 122 S.Ct. 992 (2002) that "there is no requirement ...

U.S. Supreme Court Upholds California's Harsh Three-Strikes Law

U.S. Supreme Court Upholds California's
Harsh Three-Strikes Law

by John E. Dannenberg


In two 5 to 4 decisions, the U.S. Supreme Court ruled that California's harsh "three strikes and you're out" law is not grossly disproportionate in violation of the Eighth Amendment nor is it "contrary to, or an unreasonable application of [as approved by the U.S. Supreme Court], clearly established federal law" as required under 28 U.S.C. §2254(d)(1).


All states now have recidivist offender sentencing laws, but arguably none is harsher than California's "third strike," 1994 Penal Code §667(b). While most states punish only serious/violent repeat offenses, California's scheme permits the third offense to be "any" felony - no matter how innocuous. As a result, over 350 of California's 25,000 life prisoners today are serving 25-life "third strike" sentences solely for committing "petty theft with a prior" - an offense that by itself is a "wobbler" - that is, at the sentencing judge's discretion, either a misdemeanor or a felony. Other recidivists are "struck out" for such crimes as drug possession, felony drunk driving, or failing to register as a sex offender when moving out ...

News in Brief

California: On May 2, 2003, Gary Culverson, 25, and Van Kopp, 37, were arrested on charges that they assaulted Casey Humphrey, 18, a prisoner at the Monroe Detention Center in Yolo County. Culverson and Kopp were employed as guards at the jail's intake area but the assault occurred in the segregation unit of the facility. According to a citizen's complaint signed and filed by ten jail prisoners who witnessed the assault and which led to the investigation and filing of criminal charges, Culverson and Kopp assaulted Humphrey on April 1, 2003, after he refused to be moved to a different area of the jail. The guards were released on $35,000 bail and are on administrative leave pending resolution of the criminal charges. On April 2 a number of prisoners in the jail segregation unit staged a ten day hunger strike to protest the beating and also flooded their cells. Apparently beatings of prisoners are common in the jail, while investigations and criminal prosecutions are not.


California: On May 22, 2003, Kimberly Lewis, 48, a male guard at the R.J. Donovan Correctional Facility in San Diego was sentenced by San Diego county judge Browder Willis to one ...

News in Brief

California: On May 2, 2003, Gary Culverson, 25, and Van Kopp, 37, were arrested on charges that they assaulted Casey Humphrey, 18, a prisoner at the Monroe Detention Center in Yolo County. Culverson and Kopp were employed as guards at the jail's intake area but the assault occurred in the segregation unit of the facility. According to a citizen's complaint signed and filed by ten jail prisoners who witnessed the assault and which led to the investigation and filing of criminal charges, Culverson and Kopp assaulted Humphrey on April 1, 2003, after he refused to be moved to a different area of the jail. The guards were released on $35,000 bail and are on administrative leave pending resolution of the criminal charges. On April 2 a number of prisoners in the jail segregation unit staged a ten day hunger strike to protest the beating and also flooded their cells. Apparently beatings of prisoners are common in the jail, while investigations and criminal prosecutions are not.


California: On May 22, 2003, Kimberly Lewis, 48, a male guard at the R.J. Donovan Correctional Facility in San Diego was sentenced by San Diego county judge Browder Willis to one ...

The PLRA Does Not Change Leave to Amend Rule

The PLRA Does Not Change Leave To Amend Rule

by Bob Williams


The Third Circuit Court of Appeals has held that the Prison Litigation Reform Act (PLRA) does not mandate dismissal of an indigent litigant's deficient complaint without leave to amend, where the amendment would not be futile or inequitable, even if the plaintiff does not seek leave to amend.


Norman Grayson had knee surgery while confined in Pennsylvania's Mayview State Hospital in 1998. He was then transferred to the Allegheny County Jail where his "leg ropes" were confiscated and he was denied medical treatment. He then reinjured his knee when a defective handrail gave way and he fell in a stairwell. After being transferred to the Camp Hill Prison it was still several weeks before he received any treatment.


Grayson filed a §1983 complaint but named no individuals, only the facilities. The Hospital and Prison moved for dismissal on Eleventh Amendment immunity grounds and the Jail moved for dismissal for Grayson's failure to plead "a policy, practice, or custom of deliberate indifference toward prisoners' requests for medical treatment."


On appeal, Grayson only challenged the dismissal of the Jail. The Court found that since no policy of ...

Illinois Settles Visitor Strip Search Suit for $237,000

by Matthew T. Clarke


In 2001, the Illinois Department of Corrections (DOC) has settled a lawsuit by visitors who claimed strip searches conducted during their visit to the Pontiac Correctional Center (PCC) were unconstitutional.


In 1997, Marylin Tompkins and Jess Burgess filed suit in federal district court in Peoria, IL ...

 

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