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Prisoner Education Guide

Prison Legal News: September, 2003

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Volume 14, Number 9

In this issue:

  1. Strapped States Threaten Prisoner Releases to Extort Revenue (p 1)
  2. Ninth Circuit Affirms Constitutionality of RLUIPA (p 6)
  3. Settlement Reached in Beating Death of Florida Prisoner (p 6)
  4. Habeas Hints (p 7)
  5. From the Editor (p 9)
  6. Shoot First, Ask Questions Later: The Militarization of Law Enforcement (p 10)
  7. Informal Grievance Procedure Must Be Exhausted Before Filing Suit (p 11)
  8. CSC: More Misery and Misfortune (p 12)
  9. BOP Guards Smuggle Sperm for Mobsters (p 14)
  10. Washington DOC Settles Kosher Diet Complaints (p 15)
  11. Arizona's Pima County Settles Prisoner Beating Death Lawsuits for $500,000 (p 16)
  12. Washington DOC Ban on Bulk Mail and Catalogs Enjoined in PLN Suit, Due Process Required (p 18)
  13. New York Muslim Prison Chaplains Purged (p 20)
  14. CDC Report Outlines Prevention and Control of Hepatitis in Prisons (p 21)
  15. Washington State's Changes to Good Time Laws Benefit Few (p 22)
  16. Military Prisoners Cannot Sue Over Conditions of Confinement (p 23)
  17. Georgia Jury Awards $325,000 to Prisoner's Widow in Legal Malpractice Case (p 24)
  18. Texas Magistrate Suspended for Verbally Abusing Prisoners (p 24)
  19. Canadian Supreme Court Grants Prisoners Right to Vote (p 25)
  20. Justice Department Report Decries Smuggling in Federal Prisons (p 26)
  21. The Death Penalty in 2001 (p 26)
  22. Court Okay Needed Before Housing Mentally Ill Prisoners in California Supermax (p 27)
  23. South Carolina Found in Contempt for Non-Treatment of Mentally Ill Prisoners (p 28)
  24. Expert Witness Standard in RLUIPA Gang Case (p 28)
  25. Tennessee Prisoner Awarded $242,500 in CCA Medical Neglect Suit (p 29)
  26. Gay Visiting Rule Challenged (p 30)
  27. Mediation Costs Not Taxable in §1983 Suit (p 30)
  28. Women Prisoners in Alabama Win Preliminary Injunctive Relief (p 31)
  29. Alabama's Women Prisoners Moved to Louisiana to Ease Overcrowding (p 32)
  30. The Prison Index: Taking the Pulse of the Crime Control Industry (p 33)
  31. News in Brief (p 35)

Strapped States Threaten Prisoner Releases to Extort Revenue

by Matthew Clarke

In the wake of an economic downturn, states throughout the country are facing budget deficits averaging 15% of their previous general revenue. A uniform response to the revenue shortfall has been to threaten the early release of state prisoners. However, this appears to be merely a threat to extort revenue, not a reality. Few prisoners have actually been released early and few states intend to release any prisoners early. The most that happens is that a few days are shaven off the sentences of a few non-violent prisoners. The general response is to allow the threat of early release to overshadow any opposition to the cutting of education and health care budgetsthe typical cost-cutting measure.

The other alternative, increasing taxes, is rarely mentioned and almost never taken seriously. Most state legislators and governors campaigned on promises not to raise taxes.

"What has happened is that corrections has grown so enormously and consumed so many resources, it has finally become a target for budget cutters as the economy has turned down," said Chase Riveland a prison consultant who previously headed the Colorado and Washington prison systems.

State politicians are caught in a quandary. They must balance the budget ...

Ninth Circuit Affirms Constitutionality of RLUIPA

by John E. Dannenberg

In a case of first impression, the Ninth Circuit U.S. Court of Appeals affirmed a district court ruling that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) (42 U.S.C. § 2000 cc et seq.) passes constitutional muster as applied to a challenge by California Muslim prisoners objecting to being penalized for attending Friday prayer services mandated by their faith.

Karluk Mayweathers and five other prisoners at CSP Solano sued prison officials in 1996 on First Amendment grounds to abate prison rules that penalized Muslim prisoners who left their jobs to attend Jumu'ah services. In 2000, they added a claim under the RLUIPA.

The district court granted preliminary injunctive relief in Mayweathers v. Terhune, 136 F.Supp.2d 1152 (E.D. Cal. 2001), which was upheld by the Ninth Circuit in Mayweathers v. Newland, 258 F.3d 930 (9th Cir. 2001) [PLN, Sep. 2002, p.18.]. Prison officials then unsuccessfully challenged the RLUIPA in district court on a litany of constitutional grounds. Now, on the officials' appeal, the United States of America intervened in support of the constitutionality of its statute.

The principal challenge was based upon Congress's spending clause ...

Settlement Reached in Beating Death of Florida Prisoner

In October 2002, the sons of a Florida man agreed to settle their wrongful death action, in the U.S. District Court in Pensacola, against several jail guards and the Escambia County sheriff. The amount of the settlement was not disclosed.

This case began on January 5, 1999, when Mark Bailey, a 39-year-old house painter, was arrested for resisting arrest and battery on a cop. After being deposited in the Escambia County jail, Bailey allegedly slugged a female guard, breaking her jaw. In response, Bailey was beset upon by several guards and a cop. The altercation led to Bailey's death.

The Escambia County medical examiner classified the death a homicide, but attributed the cause to Bailey's bad heart.

A second autopsy by a physician hired by Bailey's family concluded that death was the result of a severe beating. A third autopsy by former Pinellas/Pasco counties medical examiner Joan Wood supported the bad heart theory.

At a coroner's inquest in August 2000, Escambia County Judge David Ackerman, whose brother Ken is serving a 15-year term for DWI homicide in Florida, concluded that at least one guard "overreacted and administered extra, unnecessary, uncalled-for blows." But Akerman also ...

Habeas Hints

by Kent Russell

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

The Federal Traverse

Short of the evidentiary hearing, which is granted in only a very few cases, the most important part of Federal habeas corpus is responding to the contentions that the A.G. (for federal habeas corpus Petitions by state prisoners, the petitioner's opponent is the state attorney general, hereafter called the "A.G.") will make in an effort to the get the habeas corpus Petition dismissed. Typically the A.G. makes those contentions in the "Answer, and the petitioner responds with a "Traverse".

The Answer is actually a trio of documents which includes:

1. "Answer": The Answer is a legal pleading, usually only two or three pages in length, which contains a summary of the positions the A.G. is taking in support of its efforts to get the Petition dismissed. The Answer establishes the contested issues in the case, but it ...

From the Editor

When PLN first started publishing in 1990 there were several dozen prisoner rights publications being published around the country and in Canada. California alone had a half dozen. Today most of them have folded. Historically, the United States has had a penal press since the early 1800's. It is not an exaggeration to say that it is in a serious crisis today with only PLN and a few other publications reporting on news and happenings in the American gulag, the biggest prison system in world history.

While the American prison population has increased enormously in the past few years, the number of publications serving it have decreased almost as fast. The practical obstacles and the financial difficulties in serving the US prison population are tremendous. The single best way to ensure PLN's survival against this foreboding backdrop is to encourage others to subscribe, thus increasing PLN's circulation and impact, and making a financial donation, since subscription and advertising income alone do not cover all of PLN's operating costs. As one magazine says, subscribing to our principles isn't enough.

One of the obstacles facing PLN and other publications aimed at prisoners is the constant barrier of ...

Shoot First, Ask Questions Later: The Militarization of Law Enforcement

Shoot First, Ask Questions Later:
The Militarization of Law Enforcement

by Silja J.A. Talvi

The following is a review of Militarizing the American Criminal Justice System: The Changing Roles of the Armed Forces and the Police, Peter B. Kraska (editor), Northeastern University Press, 2001.

As the line between the military industrial complex and the criminal justice system continues to blur, Peter B. Kraska, Professor of Criminal Justice at Eastern Kentucky University, brings readers his timely, tightly-edited book, Militarizing the American Criminal Justice System: The Changing Roles of the Armed Forces and the Police.

In the last fifteen years, as Kraska explains, the U.S. has witnessed a "rapid acceleration"of both militarism and militarization in civilian governmental functions.

And nowhere has that acceleration been as pronounced as in law enforcement.

Since the Reagan era, successive American presidential administrationswith the support of the Congresshave "further militarized crime control discourse by radiating the master metaphor of `war' into a flood of taken-for-granted martial expressions and submetaphors."

It was Reagan who began to routinely equate the "evils of communism" with the threat of drugs and crime, and then took the first step toward the present-day omnipresence of drug war rhetoric by declaring ...

Informal Grievance Procedure Must Be Exhausted Before Filing Suit

The U.S. Court of Appeals for the Third Circuit reversed a district court's denial of summary judgment for prison officials after ruling that prisoners were required to exhaust their administrative remedies before bringing a 42 U.S.C. § 1983 action even when such remedies had not been formally adopted by a state agency.

In August 1997, Victor Concepcion and Anthony Ways were New Jersey state prisoners who became involved in an altercation with prison guards. Concepcion and Ways were charged with assaulting corrections officers, found guilty, and sentenced to administrative segregation and loss of good time.

In August 1998, the two men jointly filed a complaint in U.S. District Court under §1983 alleging that they were victims of excessive force during the August 1997 incident. In August 2000, defendants moved for summary judgment arguing that plaintiffs had failed, prior to filing suit, to exhaust their administrative remedies as required by 42 USC §1997e(a).

The district court took the view that the only remedy available to the plaintiffs was an informal grievance procedure described in the prisoners' handbook. The district court had interpreted §1997e(a) to mean that the phrase "administrative remedies" applied only to "Administrative schemes ...

CSC: More Misery and Misfortune

Page 1 of the August 2002 issue of Prison Legal News carried a story about Correctional Services Corporation (CSC), the scandal-ridden private prison outfit beset with self-inflicted troubles. Since that story appeared, CSC's troubles have multiplied. Consider the following:

Ø In August 2002, a Texas court convicted a CSC Boot Camp nurse of negligent homicide following the death of an 18-year-old camper to whom she failed to provide adequate medical care.

Ø In January 2003, the New York State Lobbying Commission launched a probe into CSC's involvement with gifts improperly given to state legislators.

Ø Later in January, four female prisoners at a CSC-operated halfway house in Manhattan filed a federal lawsuit where they complained that they were sexually assaulted by a CSC counselor.

Ø In mid-January, a federal investigation report revealed that CSC employees' had been ordered to work on the election campaigns of New York's political elite: former Governor Cuomo, former Mayor Dinkins, and perennial victim Reverend Al Sharpton.

Ø Still further in January, a former prisoner at a CSC-operated youth facility in Nevada filed a federal lawsuit complaining that a female guard had forced the teenager to perform various sex acts.

Ø Late in ...

BOP Guards Smuggle Sperm for Mobsters

BOP Guards Smuggle Sperm For Mobsters

by Gary Hunter

On March 1, 2002, the U.S. District court for the Middle District of Pennsylvania denied the motion of a mobster's wife requesting the return of her incarcerated husband's sperm. Circumstances leading to this unusual request began in 1992 when Antonio Parlavecchio, a known Mafia member, was sentenced to 14 years in prison at the federal prison complex in Allenwood, Pennsylvania, for racketeering. His wife, Maria Parlavecchio, who is 38 and childless, bribed prison guard Troy Kemmerer to smuggle a cryogenic sperm kit into and out of the federal prison.

The sperm smuggling scam had become popular among mobsters doing time in Allenwood. Prison officials became suspicious when imprisoned wiseguy Kevin Granato, who had been locked up for 10 years, began bragging about his two year old son at a visit.

A federal agent posing as a mobster's girlfriend convinced Kemmerer to smuggle a sperm kit into the prison which led to his arrest on bribery charges. [PLN, Sept. 2001] At least two other guards were involved in the illegal smuggling activities. Todd Swineford and Mark James were pressured by the Bureau of Prisons (BOP) into quitting their ...

Washington DOC Settles Kosher Diet Complaints

Washington DOC Settles
Kosher Diet Complaints

by John E. Dannenberg

Washington state's Department of Corrections (DOC) settled two 42 USC § 1983 complaints from prisoners who "practiced" Judaism but were denied kosher diets. Both settlements accorded the diets; in the attorney-represented case fees and costs of $14,652 were awarded ...

Arizona's Pima County Settles Prisoner Beating Death Lawsuits for $500,000

Arizona's Pima County Settles Prisoner Beating Death
Lawsuits for $500,000

by Matthew T. Clarke

By paying $500,000 and issuing letters of apology from the Sheriff, Pima County has settled two lawsuits by the survivors of two prisoners beaten to death by Pima County Jail guards in two separate incidents. This brought the total paid in recent settlements involving prisoner beatings to $596,000. The county also spent $12,000 for outside investigation of the cases. 12 of the 38 claims filed against the county for deaths or injuries at the county jail during the past 5 years were closed without payout, another 17 remain open.

Police found Karl Budinger, a 74-year-old former logger and Alaska state OSHA representative, asleep behind the wheel of his pickup truck parked in a Tucson apartment complex on Christmas Day, 2001. He was verbally abusive to the police who found him, kicked one paramedic in the knee and another in the groin, and refused to be handcuffed at the scene.

According to guards John Tollett and Christopher Gates, Budinger yelled repeatedly at guards and raised his hands in a manner perceived to be a threat to guard Marie Mitchell, causing them to ...

Washington DOC Ban on Bulk Mail and Catalogs Enjoined in PLN Suit, Due Process Required

Washington DOC Ban on Bulk Mail and Catalogs Enjoined
in PLN Suit, Due Process Required

by Paul Wright

On June 17, 2003, Seattle federal district court judge Robert Lasnick issued a permanent injunction, effective August 16, 2003, enjoining the Washington Department of Corrections (DOC) from censoring mail based on the postal rate at which it was mailed and from censoring catalogs. Whenever any mail is censored, due process notice must be provided to the sender and to the intended recipient. The court granted the defendants qualified immunity from money damages on these claims. The court held disputed issues of material fact prevented it from ruling on the parties' cross motions for summary judgment concerning the censorship of court rulings and legal documents sent to Washington prisoners. The court granted the defendants summary judgment and dismissed PLN's claim concerning the censorship of publications not normally distributed by PLN which are sporadically censored when sent to myself and to PLN contributing writers.

In 2001 PLN filed suit in federal court in Seattle challenging the Washington DOC's ban on third class mail, other than PLN. This includes subscription renewal notices, fund-raiser mailings, surveys and similar mailings. PLN also challenged the censorship ...

New York Muslim Prison Chaplains Purged

by Matthew T. Clarke

Imam Warith Deen Umar helped found the advocacy group National Association of Muslim Chaplains (NAMC) in 1976. Since then, the 58-year old cleric and NAMC have come to exercise near monopolistic influence over the selection of Muslim prison chaplains in New York state prisons, according to critics. Umar has personally recruited and trained dozens of prison clerics and ministered to thousands of prisoners. The government of Saudi Arabia helped finance Umar's two trips to that Muslim monarchy and continues to finance his dissemination of their harsh form of fundamentalism known as Wahhabism, a Saudi Arabian offshoot of Sunni Islam. Wahhabism stresses a literal reading of the Quran and is intolerant of people who do not follow its absolutist teachings.

Of his youth in Illinois, Umar says, "I went to jail too many times to count." Living in New York in 1971, Umar and a group of radicals he befriended were overheard bragging about their plans murder police. Caught with a 9mm pistol and crude homemade bombs, Umar visited Louis Farrakahn before being sent to prison for two years. That meeting led to a prison conversion to Islam and a name change from Wallace Gene Marks ...

CDC Report Outlines Prevention and Control of Hepatitis in Prisons

CDC Report Outlines Prevention And Control Of Hepatitis In Prisons

by John E. Dannenberg

The national Centers for Disease Control and Prevention (CDC) has issued an updated report providing guidelines and recommendations for juvenile and adult correctional facilities to help identify, immunize against and prevent acute viral hepatitis disease. In its 36 page January, 24, 2003 Recommendations and Reports (MMWR 2003, Vol. 52, No. RR-1), a team of medical specialists in viral hepatitis from the National Center for Infectious Diseases offered this resource guide to correctional health care providers.

Varying by state, 16 to 41 percent of prisoners are already infected with Hepatitis-C, one million of whom are being discharged annually. CDC now recommends at least testing all those with an IV drug use history [approximately 80% of Hep-C infected prisoners have this history], so that those who were not even aware of their latent disease might be able both to take precautions against further spread as well as begin early treatment.

But a battle between costs, legal liability and ethics rages in several states regarding responsibility of prisons to control this epidemic. Arguably, federal laws requiring treatment of seriously ill prisoners might favor the chances of their getting medical ...

Washington State's Changes to Good Time Laws Benefit Few

On May 20, 2003, Washington state governor Gary Locke signed into law Senate Bill 5990, which works numerous changes to the amount of good time prisoners in the state can receive. The new law, passed by 43-4 and 84-13 votes in the Senate and House respectively, increases the amount of good time received by some prisoners, while decreasing that afforded to others.

Previous to this legislation, Washington's good time laws allowed all prisoners who committed crimes before 1990 a 33% reduction of their sentences through good time. The law then changed to reduce to 15% the amount of good time a prisoner convicted of a "Class A" or "serious violent" offense (such as murder, rape, or kidnapping) can earn.

SB5990 increases the maximum allowable good time to 50% for certain, non-violent prisoners. At the same time, the law decreases the good time for serious violent, Class A, and sex offenders to 10%. The law took effect July 1, 2003, and only the portion of the law increasing the good time to 50% will be applied retroactively to those already serving sentences. The portion decreasing the good time to 10% applies only to those defendants who committed crimes after July ...

Military Prisoners Cannot Sue Over Conditions of Confinement

In a landmark decision, the United States Tenth Circuit Court of Appeals, affirming the United States District Court of Kansas, has held that a military prisoner cannot sue over conditions of confinement in a military prison, even if the prisoner is fully discharged from military service at the time of the alleged injury.

John Ricks was a prisoner at the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas, serving fifteen years after conviction for violations of the Uniform Code of Military Justice (UCMJ). The USDB is a purely military, maximum security facility run by the U.S. Army. Ricks was formally, dishonorably discharged from the Air Force on April 3, 1996.

Ricks filed a pro se complaint under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that in 1997 and 1998 USDB guards sexually assaulted him during frisk searches and that USDB administrators retaliated against him for filing litigation. Ricks sought injunctive, mandamus, and monetary relief and administrative sentence credit.

The district court initially dismissed all but two of Ricks' claims under the doctrine of Feres v. United States, 340 U.S. 135 (1950). The district court retained two ...

Georgia Jury Awards $325,000 to Prisoner's Widow in Legal Malpractice Case

Georgia Jury Awards $325,000 to Prisoner's Widow In Legal Malpractice Case

On July 13, 2002, a Carroll Counrty, Georgia, jury awarded $325,000 to the widow of a prisoner who allegedly died due to medical malpractice and neglect. The verdict was against a law firm that first agreed ...

Texas Magistrate Suspended for Verbally Abusing Prisoners

Texas Magistrate Suspended For Verbally Abusing Prisoners

by Matthew T. Clarke

A Brazoria County, Texas, Justice of the Peace (JP) has been suspended pending the outcome of judicial misconduct proceedings, after he used profanity and racial slurs to verbally abuse prisoners in the Pearland City Jail (the jail).

In April, 2002, security cameras at the jail caught JP Matt Zepeda seated at a desk behind a glass partition as pretrial detainee Ronald D. Hickman, 39, who was being held on a charge of attempted burglary of a coin-operate machine, is brought toward him. Zepeda calls Hickman by name and Hickman responds, "Yes, sir. Who are you, sir?"

Zepeda then launches into a tirade saying, "You don't fucking ask me who I am. You just stand there and I will handle this. . . . You're the one in the fucking jail. You should just say `yes, sir' or no, sir,' that's all you have to do."

Zepeda asks Hickman if he undestands and Hickman replies, "No, sir, I don't. I just wanted to know who I was speaking to. I don't know who you are."

"In due time, I will tell you," Zepeda replies, "Right now you don ...

Canadian Supreme Court Grants Prisoners Right to Vote

On November 3, 2002, the Supreme Court of Canada struck down a law that barred prisoners serving sentences of two years or more from voting in federal elections. In a sharply divided 5-4 decision, the Canadian high court held that the federal government failed to show any justification for impinging on such a fundamental right as guaranteed by the Charter of Rights.

The challenge to the law was started by ex-prisoner Richard Suave, who had been serving a life sentence for murder until being recently released on parole. Suave, a former motorcycle gang member from Ontario, has now earned a university degree and continues to advocate for voting rights of prisoners. Along the way, several prisoners from the Stony Mountain Penitentiary in Manitoba joined in the suit.

The court's 5-4 division was apparently grounded in differing fundamental philosophies: The majority giving priority to individual rights on the one hand with the minority affording deference to Parliament on the other.

At issue in the case was a section of the 1993 Canada Elections Act that barred prisoners serving sentences of two years or more from voting in federal elections. Since prisoners serving terms shorter than two years do their time ...

Justice Department Report Decries Smuggling in Federal Prisons

Justice Department Report Decries
Smuggling in Federal Prisons

The U. S. Justice Department has issued a report decrying the ability of smugglers to get regular shipments of drugs even into the highest security federal prisons. The report blames visitors, mail, and prison employees for bringing contraband, including marijuana, heroin, cocaine, and other drugsinto the 102 federal prisons.

"Prison personnel are of particular concern because they tend to bring in larger amounts that spread to more" prisoners, said Justice Department Inspector General Glen A. Fine. Fine noted that "a few corrupt staff can do enormous damage to the safety and security of an institution."

Prison staff is allowed to bring personal items to work and are not subjected to random searches or drug testing. However, former Bureau of Prisons (BOP) Director Kathleen Hawk Sawyer brushed aside the report's recommendation that staff be searched upon arrival. "Overall, staff morale would suffer, thereby creating unwarranted concerns in areas other than drug detection," said Sawyer.

From 1997 through 2001, an annual average of 3,080 BOP prisoners tested positive for drugs. This is 2% of the prisoners tested. However, the rate at high-security prisons was higher3%. 1,100 drug stashes were found in ...

The Death Penalty in 2001

According to the Bureau of Justice Statistics (BJS), by the end of December 2001, 3,581 prisoners were under sentence of death in the thirty-seven States and the Federal prison system in the United States. Fewer prisoners (155) were received under sentence of death than at any time since 1973. Furthermore, the sixty-six (66) executions carried out in 2001 represented the second straight yearly decline in execution and was the lowest number of executions since 1996, when forty-five (45) executions were carried out. These facts are just a few of the features of America's ongoing use of the death penalty discussed in a December 2002 BJS Bulletin. PLN has previously reported BJS bulletins on the topic [ PLN, September 2001, page 14].

In 2001, California (603 prisoners), Texas (453), Florida (372), and Pennsylvania (241) were the states with the largest death row populations. These four states alone held 47% of the nation's death row prisoners. Of the 66 executions, Oklahoma led all states with 18, followed closely by Texas (17). Missouri killed seven persons, North Carolina five, and Georgia four. In addition, 19 death row prisoners in 2001 died of causes other than execution 17 from "natural causes" and ...

Court Okay Needed Before Housing Mentally Ill Prisoners in California Supermax

Court Okay Needed Before Housing Mentally Ill Prisoners
in California Supermax

The US District Court (E.D. Calif.) issued an order preventing the CA Dept. of Corrections (CDC) from housing mentally ill prisoners in its psychologically isolating and debilitating new "supermax" administrative segregation cells at Corcoran State Prison, unless CDC first obtained the express permission of the court. The order effectively canceled CDC's planned "experiment" wherein they would put 50 such prisoners in Corcoran's supermax cells and a "control group" of 50 more in "traditional" cells to determine over a six month "evaluation period" whether any suffered "extreme sensory deprivation ... detrimental to [their] mental health."

CDC's spokeswoman, Margot Bach, stated that approximately 20% of CDC's 158,000 prisoners are seriously mentally ill. In a September 13, 1995 ruling (Coleman v. Wilson, 912 F.Supp.1282 (1995)), Judge Lawrence K. Karlton ordered CDC to properly provide identification of and medical treatment for this class of prisoners. Court-appointed monitors have since followed their progress. It was those monitors who complained to now Chief Judge Emeritus Karlton that unless enjoined by the court, CDC would begin its "experiment" by housing mentally ill prisoners at the Corcoran Substance Abuse Treatment ...

South Carolina Found in Contempt for Non-Treatment of Mentally Ill Prisoners

South Carolina Found in Contempt for Non-Treatment
of Mentally Ill Prisoners

by Lonnie Burton

The South Carolina Department of Mental Health (DMH) and its director were held in contempt of court on September 5, 2002, for ignoring repeated court orders to treat mentally ill prisoners confined in county jails. The civil contempt order was issued by Circuit Court Judge Henry Floyd after he found that DMH had failed to treat prisoners at the Richland County jail in a timely fashion.

In the order, Floyd directed DMH head George Gintoli to give adequate psychiatric treatment to eight mentally ill prisoners -four by October 4 and the others by November 8, 2002. Judge Floyd wrote that he wouldn't impose actual penalties on DMH if the department presents a statewide treatment plan to the court by December 6, 2002.

However, the contempt order was issued only a month after the same court threatened to cite Gintoli and other state officials for contempt if they failed to present a "reasonable and expeditious" plan for treating the prisoners. Floyd had said that each official would face six months in prison and a $1,500 fine if they did not comply.

Statewide, there are more ...

Expert Witness Standard in RLUIPA Gang Case

The United States District Court for the Southern District of New York has denied in part and granted in part summary judgment to New York's Department of Correctional Services (DOCS), in a case involving the beliefs, practices, and literature of the Nations of Gods and Earths, also known as the Five Percent Nation, the Five Percent, and the Five Percenters. In addition, the Court excluded from evidence two reports submitted by DOCS' expert witness.

Rashaad Marria is a DOCS prisoner and a member of the Nations of Gods and Earths ("Nation") since 1994. The Nation shares some teachings and religious books with the Nation of Islam (NOI) but also has several differences with NOI. DOCS recognizes NOI as a religion and provides appropriate services. DOCS classifies the Nation as a security threat group (i.e., a gang engaged in violence), bans Nation services and literature, and prohibits NOI members from sharing common religious literature with Nation members.

After being repeatedly denied Nation literature, including the official Nation magazine, The Five Percenter, and Nation foundational books, and also being denied the right to assemble and worship with other Nation members, Marria filed suit under 42 U.S.C. §1983, raising ...

Tennessee Prisoner Awarded $242,500 in CCA Medical Neglect Suit

On December 3, 2002, a U.S. district court issued a $400,000 judgment against Corrections Corporation of America for violating the rights of Wesley Taylor, a prisoner at the South Central Correctional facility in Tennessee. After hearing Taylor's §1983 federal civil rights suit stemming from improper medical treatment, a jury held that he was entitled to $50,000 for violations of his Eighth Amendment rights and 55% of a $350,000 negligence award. (The jury determined that Taylor was 45% responsible for the accident that caused the injury).

After falling from a ladder and receiving initial treatment, Taylor continued to complain of serious neck and back pain. His complaints were largely ignored, the suit said, because nurses failed to convey the seriousness of his injury to the unit physician. Taylor was not seen by a doctor for 60 days after his initial treatment. It was another 40 days before he saw the orthopedist the doctor referred him to, and more than a month and a week after that before he received an MRI ordered by the orthopedist. It was finally determined that Taylor had a broken neck. All told, according to the suit, Taylor suffered needlessly for eight ...

Gay Visiting Rule Challenged

The Ninth Circuit U.S. Court of Appeals reversed the U.S. District Court's (D.Ariz.) Fed.Rules Civ.Proc. Rule 12(b)(6) dismissal of an equal protection claim raised by an Arizona prisoner and his gay visitor who were denied the right to kiss and hug during prison visits solely because they were non-family homosexual partners.

Karl Whitmire visited with his incarcerated gay partner William Lyster in an Arizona state prison. Lyster was chastised by prison staff after he was observed briefly hugging Whitmire during a visit, and was told "if it happens again, it will be a long time before you see him again."

Although both men initially filed a complaint under 42 USC § 1983, Lyster subsequently dismissed his claims. Whitmire proceeded - transforming the case from a pro se prisoner claim into a standard civil case. As a threshold matter, the court first ruled that as a non-prisoner, Whitmire still had standing to challenge a prison regulation (citing Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001)). Whitmire asserted that the prison rule violated his US Constitutional equal protection rights because it amounted to both sexual-orientation and sex-based discrimination.

The district court ...

Mediation Costs Not Taxable in §1983 Suit

Mediation Costs Not Taxable in §1983 Suit

The U.S. Eighth Circuit Court of Appeals held that state officials named as defendants in a prisoner's civil rights suit could not be taxed costs for mediation. The decision reverses the U.S. District Court for the Eastern District of Missouri ...

Women Prisoners in Alabama Win Preliminary Injunctive Relief

The U.S. District Court for the Middle District of Alabama granted a motion for a preliminary injunction after a group of female prisoners complained that the state operated the women's prisons in an unconstitutionally unsafe manner.

The Julia Tutwiler Prison for Women is located in Wetumpka, Alabama, about 115 miles south of Birmingham. The Edwina Mitchell Work Release Center stands a few hundred feet away. The Birmingham Work Release Center is located in Birmingham.

Fifteen women who were variously housed in these three prisons filed a lawsuit under 42 U.S.C. §1983 where they complained that conditions for female prisoners in the Alabama State Prison System violated the Eighth Amendment to the U.S. Constitution. Plaintiffs brought their suit on behalf of all Alabama state prisoners.

The defendants are then-Governor Don Siegelman, former Department of Corrections Commissioner Michael Haley, Tutwiler's warden Gladys Deese, Mitchell's acting warden Patricia Hood, and Birmingham Director Mary Carter.

In support of their complaint, the prisoner-plaintiffs alleged that overcrowding, inadequate supervision, improper classification, violence, availability of weapons, the small number of segregation cells, insufficient living space, and inadequate ventilation were conditions which existed at Tutwiler. Prisoners further alleged that conditions at ...

Alabama's Women Prisoners Moved to Louisiana to Ease Overcrowding

Alabama's Julia Tutwiler Prison for Women at Wetumpka was built in 1942 to house 364 prisoners. In 2002, Tutwiler's population rose beyond 1,000 with overcrowding so severe that a group of women prisoners sought relief by filing a lawsuit in U.S. District Court.

In a grant of preliminary injunctive relief, Judge Myron Thompson declared on December 2, 2002, that Tutwiler was unconstitutionally unsafe and ordered the Alabama Department of Corrections (ADOC) to redress fully and immediately the constitutional violations.

In April 2003 using $1 million in emergency funds made available by Alabama's incoming Governor Bob Riley, the state Board of Pardons and Paroles began conducting special reviews to consider about 70 nonviolent prisoners per week for release to parole. The first such weekly parole review was conducted on April 10th when 31 of the 34 Alabama prisoners reviewed were released.

Prisoners convicted of crimes involving firearms, victim injury, domestic violence, or drug trafficking are not eligible for the special review.

In a larger effort to reduce overcrowding at Tutwiler, the ADOC contracted with LCS Correctional Services, a private, for-profit prison company that operates five prisons in Texas and Louisiana. In May 2003, 140 women prisoners ...

The Prison Index: Taking the Pulse of the Crime Control Industry

by Peter Wagner, Prison Policy Initiative and Western Prison Project, 2003, 48 pages

Review by Paul Wright

As a prison journalist, one of the most challenging things is reporting the facts and putting those facts into a bigger context since no story occurs in a vacuum. There are a multitude of statistics, numbers and facts concerning the American criminal justice system. The problem is that they tend to be scattered in a variety of locations and documents and are hard to access for all but the most dedicated researchers. Peter Wagner, the assistant director of the Prison Policy Initiative and founder of, an online database of facts and statistics pertaining to the prison industry, realized the same thing and decided to correct it. The result is a slick, well produced and superbly organized booklet.

The Prison Index: Taking the Pulse of the Crime Control industry gathers facts and figures on literally all aspects of the criminal justice system, digests them and presents them in a cogent, organized format that can be used by everyone from the novice writer of letters to the editor-, to experienced journalists, academics and researchers.

Most importantly, it allows prisoners and citizens concerned about ...

News in Brief

Brazil: On June 23, 2003, a 12 hour riot among prisoners in a jail in Manaus in the Amazon left 13 prisoners dead. Forty visitors and four jail guards were taken hostage during the uprising but were released unharmed. No cause for the riot was given in media reports.

California: In June, 2003, the Air Force confirmed it had stored nuclear weapons at the former Castle Air Force base which now houses the United State Penitentiary in Atwater. The prison houses 1,445 prisoners and is built on an Environmental Protection Agency super fund toxic waste site. The air force has spent $177 million to minimize the environmental hazards at the former base and plans to spend another $127 million before it pronounces the job completed. The nuclear weapons admission means that nuclear waste associated with the weapons are likely present on prison grounds which could also be harmful to the health of prisoners and staff alike. Dan Dunne, Bureau of Prisons spokesman, said the potential radioactive waste news "had no effect on our operations."

California: On July 3, 2003, the U.S Attorney's office announced it had filed misdemeanor assault charges against Richard Dale Morrison, 29, for allegedly ...


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