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Prison Legal News: January, 2004

Issue PDF
Volume 15, Number 1

In this issue:

  1. Prison Labor Fuels American War Machine (p 1)
  2. Verdict, Damages in Ohio Prisoner Disciplinary Case Reversed on Appeal (p 4)
  3. From the Editor (p 6)
  4. James Quigley November 9, 1950-October 7, 2003 (p 6)
  5. CCA Packs Positions With High-Profile Politicians (p 7)
  6. Two of Three Hawaii, Parole Board Members Resign, Shutting Board Down (p 7)
  7. Invisible Punishment: The Collateral Consequences of Mass Imprisonment (p 8)
  8. $250,000 Settlement Paid to Seattle Jail Guard Assaulted by Released Prisoner (p 9)
  9. Death at North Carolina Lock Up Spotlights Troubled Jail System (p 10)
  10. Santa Fe Guards Rape Prisoners, Neglect Kills Another (p 12)
  11. Massachusetts Jail Guards Assault Mentally Disabled Prisoner (p 13)
  12. New Iowa Law Creates Sex Offender Residency Zones (p 14)
  13. No Presumption of Collateral Consequences from California Disciplinary Proceeding (p 15)
  14. Seventh Circuit Remands § 1983 Medical Negligence Suit to State Court (p 16)
  15. Private Transport Company Settles Female Prisoner's Sexual Assault Suit (p 16)
  16. Kickbacks Dominate Fresno Jail Contracts (p 17)
  17. Frivolous Litigator Must Prepay Appellate Filing Fees (p 18)
  18. California Habeas Handbook, 4th Edition (p 18)
  19. $25,000 Awarded to Former New York Prisoner in Medical Malpractice Suit (p 19)
  20. Pool Cue Not a Weapon, Says Second Circuit (p 20)
  21. Retributive Denial Of Hepatitis-C Treatment States Eighth Amendment Claim (p 20)
  22. Sentences Upheld for TransCor Driver Who Raped and Terrorized Prisoners (p 21)
  23. New Hampshire Prison Commissary Surcharge Ruled an Illegal Tax (p 22)
  24. Maryland Detainee Chained to Pole Awarded Damages, but No Fees (p 22)
  25. Ohio Warrantless Arrestees Must Be Arraigned Within 48 Hours of Arrest (p 23)
  26. First Circuit Applies Mailbox Rule to § 1983 Complaints (p 24)
  27. Massachusetts Constitution Entitles Prisoners to Wear Kufi Caps (p 25)
  28. Diet of Raw Cabbage and Food Loaf States Eighth Amendment Claim (p 25)
  29. Bond Fees State Eighth Amendment Claim (p 26)
  30. Successive Petition Habeas Rule in Parole and Disciplinary Cases (p 26)
  31. Use of Pepper Spray States Eighth Amendment Claim (p 27)
  32. Oregon Prisoner Stated Negligence Claim Concerning Lost Property (p 27)
  33. Texas Prisoners May Challenge Loss of Good Time Class Via Habeas Corpus (p 28)
  34. Immunity Granted to Wisconsin Sex Offenders in Treatment (p 28)
  35. Alabama Highway Labor Kills Three Prisoners, Three More Injured (p 29)
  36. County Liable for Sheriff's Failure to Remove Invalid Warrant From Computer (p 29)
  37. Supreme Court Upholds Federal Tolling Statute; $80,000 Verdict Reinstated (p 30)
  38. Wisconsin Prisoners' Riot Charges Expunged From Records (p 30)
  39. $124,000 Awarded in New York Prison Bus Crash (p 31)
  40. U.S. Parole Law Amendment Ruled Ex Post Facto as Applied (p 31)
  41. Qualified Immunity Standards Tightened in Prison Murder Suit (p 32)
  42. No Constitutional Right to Privacy for Naked Woman Arrestee (p 33)
  43. Administrative Exhaustion Required in Pre-PLRA BOP Phone Suit (p 33)
  44. News in Brief (p 34)
  45. Evidentiary Hearing Required to Determine Communion Service Frequency (p 36)

Prison Labor Fuels American War Machine

On April 16, 2003, George W. Bush
visited the shop floor at the Boeing plant in St. Louis, Missouri. His 90-minute appearance drew several hundred men and women who help make the military's $48 million F-18 Hornet fighters, 36 of which were deployed during the Iraq war. The purpose ...

Verdict, Damages in Ohio Prisoner Disciplinary Case Reversed on Appeal

Verdict, Damages in Ohio Prisoner
Disciplinary Case Reversed on Appeal


The U.S. Sixth Circuit Court of Ap-
peals has reversed and remanded a jury verdict and damages award in favor of an Ohio prisoner who claimed that he had been illegally infracted for drug abuse, in violation of due ...

From the Editor

This issue of PLN is dedicated to
the memory of James Quigley, a
long time contributing writer and prisoner rights activist who died in October, 2003. More details on his life and accomplishments are above.


We start this year of publishing PLN with a slightly new format change that allows ...

James Quigley November 9, 1950-October 7, 2003

James Quigley
November 9, 1950-October 7, 2003

by Paul Wright


On October 7, 2003, long time Prison
Legal News contributing writer James Quigley was found hanging in his cell in the segregation unit of the Northwest State Correctional Facility in St. Albans, Vermont. His death was apparently a suicide.


Jim ...

CCA Packs Positions With High-Profile Politicians

CCA Packs Positions With
High-Profile Politicians

by Michael Rigby


In an ongoing effort to make up for
what it lacks in prison management skills, Corrections Corporation of America continues to place high profile politicians with inside knowledge of state and federal prison systems in top positions within the company, sometimes ...

Two of Three Hawaii, Parole Board Members Resign, Shutting Board Down

On April 2, 2003, Lani Rae


Garcia'became the second member of the Hawaii Paroling Authority (the board) within 30 days to resign from the board. Garcia's resignation left the three-member board unable to conduct business. Garcia was charged with misdemeanor abuse of a family member after having been ...

Invisible Punishment: The Collateral Consequences of Mass Imprisonment

Edited by Marc Mauer and Meda Chesney-Lind, The New Press, 2002, 368 pgs.

Review by Silja J.A. Talvi


Mass imprisonment, according to
criminal justice experts Marc Mauer and Meda Chesney-Lind, is the direct outgrowth of social and legal policies that have, for the past two decades, firmly favored incarceration ...

$250,000 Settlement Paid to Seattle Jail Guard Assaulted by Released Prisoner

$250,000 Settlement Paid to Seattle Jail Guard
Assaulted by Released Prisoner


On July 30, 2002, King County Jail
guard Heather Van Vleck, who was assaulted and injured on the job by a violent prisoner just released from state custody, settled her damages claim against Washington State based upon a ...

Death at North Carolina Lock Up Spotlights Troubled Jail System

Death At North Carolina Lock Up Spotlights Troubled Jail System

by Michael Rigby


The death of Christopher Lee Wood
at North Carolina's Cherokee County jail has served to illuminate a sordid history of prisoner abuse, FBI investigations and lawsuits. It has also resulted in the sheriff and the chief ...

Santa Fe Guards Rape Prisoners, Neglect Kills Another

Two female prisoners were raped by
Santa Fe jail guards within a ninety-day period. Santa Fe guards have been implicated in at least eight sexual assaults since 1999. Two of the victims were-minors.


In April 2003, John Robertson, 39, was charged with two counts of second degree criminal sexual penetration ...

Massachusetts Jail Guards Assault Mentally Disabled Prisoner

Massachusetts Jail Guards
Assault Mentally Disabled Prisoner

by Michael Rigby


Six Essex County jail guards were
suspended and one fired after they assaulted a mentally challenged prisoner in the jail infirmary by forcing him to eat cake while handcuffed. Author Austin, a mentally challenged prisoner who suffers from fetal alcohol ...

New Iowa Law Creates Sex Offender Residency Zones

A new Iowa law, passed in 2002, prohibits any sex offender who has victimized a child from living within 2,000 feet of a school or child-care center. The law has effectively exiled these ex-cons to enclaves on the outskirts of town, far from any family or friends.


From his ...

No Presumption of Collateral Consequences from California Disciplinary Proceeding

by John E. Dannenberg


The Ninth Circuit US Court of Ap-
peals held that in a 28 U.S.C. § 2254 habeas proceeding, a guilty finding in a California state prison disciplinary proceeding would not be accorded a presumption of collateral consequences.


Stephen Wilson, sentenced to 25 years-to-life for first ...

Seventh Circuit Remands § 1983 Medical Negligence Suit to State Court

Seventh Circuit Remands § 1983 Medical
Negligence Suit to State Court


The Seventh Circuit U.S. Court of Appeals remanded a prisoner's respondent superior (supervisory) medical negligence claim to the Indiana state courts, because although the claim was not actionable under 42 USC § 1983, it could be heard under state ...

Private Transport Company Settles Female Prisoner's Sexual Assault Suit

Private Transport Company Settles
Female Prisoner's Sexual Assault Suit


Extraditions International, Inc., now
defunct, and its successor company, American Extraditions, Inc., settled with a female prisoner who claimed she had been sexually harassed and sexually assaulted by a company guard during transport.


Robin Darbyshire, a 43 year-old female resident ...

Kickbacks Dominate Fresno Jail Contracts

Close scrutiny is being given to the
Sheriff's Foundation for Public Safety and its leader, Fresno County Sheriff Richard Pierce. Many large donations received by the organization come from companies that have contracts with Fresno County. Pierce and eight other high-ranking sheriffs have influence over who is awarded these ...

Frivolous Litigator Must Prepay Appellate Filing Fees

Frivolous Litigator Must Prepay
Appellate Filing Fees


A divided Tenth Circuit U.S. Court of
Appeals ruled that a prisoner who had been labeled a "three strikes" frivolous litigator could raise a jurisdictional appellate question, but he could not gain an appellate ruling on the merits of his suit without ...

California Habeas Handbook, 4th Edition

by Attorney Kent Russell, Sept. 2003, 67 pages plus appendix

Review by John E. Dannenberg


The completely revised 4th Edition
of the California Habeas Handbook, a self-help manual on the preparation of both California and federal habeas corpus petitions, guides pro per litigants in avoiding the pitfalls of procedural traps ...

$25,000 Awarded to Former New York Prisoner in Medical Malpractice Suit

$25,000 Awarded to Former New York
Prisoner in Medical Malpractice Suit

by Lonnie Burton


On February 13, 2003, a State Court
of Claims judge in Albany, NY ruled that a former prisoner at the Washington Correctional Facility (WCF) was entitled to an award of $25,000 to compensate him ...

Pool Cue Not a Weapon, Says Second Circuit

The U.S. Court of Appeals for the Second Circuit reversed a district court's dismissal of a federal prisoner's disciplinary appeal after finding that a pool cue, per se, was not a weapon.


In August 1999 while enjoying a game of pool, Glenn Wallace, a federal prisoner in ...

Retributive Denial Of Hepatitis-C Treatment States Eighth Amendment Claim

Retributive Denial Of Hepatitis-C Treatment
States Eighth Amendment Claim

by John E. Dannenberg


A U.S. district court in New York has
held that when a state prisoner's doctor-ordered Rebetron Therapy for his Hepatitis-C (Hep-C) disease was denied as punishment for a dirty urine test, deliberate indifference to his ...

Sentences Upheld for TransCor Driver Who Raped and Terrorized Prisoners

Sentences Upheld for TransCor Driver
Who Raped and Terrorized Prisoners

by Matthew T. Clarke


A Texas court of appeals has upheld
a TransCor driver's two-year sentence for having sex with a prisoner and ten-year sentence for sexual assault of a female prisoner while terrorizing the other prisoners in the ...

New Hampshire Prison Commissary Surcharge Ruled an Illegal Tax

by John E. Dannenberg


The New Hampshire Supreme Court
held that state law RSA 622:7-b, which imposed a 5% surcharge on the price of all commissary sales, amounted to a disproportionate tax in violation of the New Hampshire Constitution. The 1999 law, whose beneficiary for the first $750,000 ...

Maryland Detainee Chained to Pole Awarded Damages, but No Fees

The U.S. Fourth Circuit Court of Appeals has affirmed in part a jury award of damages against Maryland police officers who left an arrestee tied to a pole in a deserted parking lot. The court also affirmed denial of the plaintiff's motion for attorney fees.


On August 17 ...

Ohio Warrantless Arrestees Must Be Arraigned Within 48 Hours of Arrest

Ohio Warrantless Arrestees Must Be Arraigned
Within 48 Hours of Arrest


The U.S Court of Appeals for the 6th
Circuit recently held that the 14th Amendment to the U.S. Constitution requires warrantless arrestees to be arraigned within 48 hours of arrest. This was a civil rights action under ...

First Circuit Applies Mailbox Rule to § 1983 Complaints

by Matthew T. Clarke


The First Circuit has held that the
PLRA's exhaustion of remedies requirement is an affirmative defense, not jurisdictional, and failure to include proof of exhaustion of state remedies will not support sua sponte dismissal. The court also applied the mailbox rule to §1983 complaints and ...

Massachusetts Constitution Entitles Prisoners to Wear Kufi Caps

Massachusetts Constitution Entitles
Prisoners to Wear Kufi Caps


A Massachusetts Appellate Court has held Article 46, §1 of the Amendments to the Massachusetts Constitution allows prisoners to possess and wear kufi caps. Saifullah Abdul-Alazim, a prisoner at the Massachusetts Correctional Facility at Cedar Junction, was placed in the Departmental Disciplinary ...

Diet of Raw Cabbage and Food Loaf States Eighth Amendment Claim

The U.S. Court of Appeals for the Second Circuit reversed a district court's dismissal of a prisoner's claim that he suffered cruel and unusual punishment when he was placed in solitary confinement and fed a nutritionally inadequate diet.


Darryl Phelps, a prisoner at New York's Southport ...

Bond Fees State Eighth Amendment Claim

The U.S. Court of Appeals for the
Seventh Circuit reversed a district court's dismissal of a lawsuit by arrestees who challenged Illinois counties' practice of charging a bond fee as a condition of release from jail.


Six former arrestees brought an action under 42 U.S.C. § 1983 ...

Successive Petition Habeas Rule in Parole and Disciplinary Cases

Successive Petition Habeas Rule in
Parole and Disciplinary Cases


The Seventh and Ninth U.S. Circuit
Courts of Appeal, in unrelated cases, have construed and applied the "second or successive petition" rule of 28 U.S.C. § 2244(b). The rule requires that a state prisoner bringing a "second or ...

Use of Pepper Spray States Eighth Amendment Claim

The U.S. Court of Appeals for the
Eighth Circuit affirmed a district court's denial of summary judgment for prison guards who pepper sprayed a prisoner and threw him to the ground.


In October 1998, prison guards confiscated a radio from the cell of Byron Treats, a prisoner at ...

Oregon Prisoner Stated Negligence Claim Concerning Lost Property

The Oregon Court of Appeals reversed a trial court's dismissal of a state prisoner's negligence action against the state and a prison guard related to the guard's handling of his property, which resulted in the loss of his glasses. The court of appeals accepted the State's ...

Texas Prisoners May Challenge Loss of Good Time Class Via Habeas Corpus

Texas Prisoners May Challenge Loss
of Good Time Class Via Habeas Corpus

by Matthew T. Clarke


The Fifth Circuit court of appeals has
held that prisoners whose mandatory release dates are adversely affected by a change in their good time earning class resulting from prison disciplinary actions may challenge the ...

Immunity Granted to Wisconsin Sex Offenders in Treatment

Immunity Granted to Wisconsin
Sex Offenders in Treatment


The Wisconsin Supreme Court has
held that Gary Tate is entitled to immunity for statements made at court imposed sex offender treatment, and the revocation of his probation for refusing to make admissions to his crime without immunity was improper. Tate, 47 ...

Alabama Highway Labor Kills Three Prisoners, Three More Injured

In a sudden surge of mayhem, three Alabama prisoners were killed in separate incidents and three more were injured. Prisoner highway labor was temporarily suspended. On April 11, 2003, Dairron Clark, 33, was struck and killed by a minivan on Interstate 10 in Mobile, Alabama. Clark, serving a life sentence ...

County Liable for Sheriff's Failure to Remove Invalid Warrant From Computer

The Eleventh Circuit Court of Appeals held that Georgia Sheriffs are a county policymaker regarding their duties in the maintenence and recall of criminal warrants thus making the county liable in a § 1983 action for the Sheriff's failure to remove an invalid warrant from his computer database which resulted ...

Supreme Court Upholds Federal Tolling Statute; $80,000 Verdict Reinstated

Reversing the Supreme Court of
South Carolina, the United States Supreme Court, in a unanimous decision, held that 28 U.S.C. § 1367(d) is constitutional. The decision reinstates a judgment against a South Carolina county jail in a wrongful death claim.


On October 14, 1994, Carl H. Jinks was ...

Wisconsin Prisoners' Riot Charges Expunged From Records

The Wisconsin Court of Appeals has affirmed a circuit court's order overturning and expunging seven prisoners' disciplinary infractions for participating in a riot, barring future disciplinary action premised upon the riot, but allowing proceedings for future administrative confinement for involvement in the riot. PLN previously reported on the November ...

$124,000 Awarded in New York Prison Bus Crash

On November 7, 2002, at a bench trial, the New York Court of Claims, Rochester, awarded Evin Lashbrook $124,000. In November 1996, Lashbrook was driving a truck when he was struck from behind by a New York State Department of Correctional Services bus. The impact was so severe it ...

U.S. Parole Law Amendment Ruled Ex Post Facto as Applied

by John E. Dannenberg


The Third Circuit U.S. Court of Appeals ruled that a 1987 change to the U.S. Sentencing Reform Act (SRA) (18 U.S.C. § 4206(c)) that allowed for parole eligibility to be extended beyond the original statutory guideline range was ex post facto if ...

Qualified Immunity Standards Tightened in Prison Murder Suit

by John E. Dannenberg


The Ninth Circuit U.S. Court of Appeals brought its law of the Circuit into compliance with recent U.S. Supreme Court case law to add the additional test of "knowing unlawfulness" in Eighth Amendment prisoner claims where qualified immunity is raised as a defense by ...

No Constitutional Right to Privacy for Naked Woman Arrestee

In a 2-to-1 decision, the U.S. Court of Appeals for the Eighth Circuit reversed a U.S. District Court's grant of relief on three federal privacy claims but upheld judgment under state law for an Iowa arrestee who was strapped naked to a restraining board for over 3 ...

Administrative Exhaustion Required in Pre-PLRA BOP Phone Suit

The U.S. Sixth Circuit Court of Appeals has ruled that the administrative remedies exhaustion requirement of the Prison Litigation Reform Act (PLRA) must be met even where a court approved settlement reached prior to the PLRA's enactment does not so require. The case involves the telephone policies of ...

News in Brief

Alabama: On August 22, 2003, state supreme court chief justice Roy Moore was suspended from the court for his refusal to obey a federal court judge's order that he remove a two ton monument of the ten commandments from the rotunda of the state supreme court's building. The ...

Evidentiary Hearing Required to Determine Communion Service Frequency

The Supreme Court of Mississippi has ordered an evidentiary hearing to determine the frequency prisoners at the Mississippi State Penitentiary at Parchman are allowed to receive Communion. Prisoner Donnie Russell, acting pro se, filed a petition in State Circuit Court alleging his religious freedom rights were violated in three ways ...